Ward v. Walsh

• Decision Date: 06 November 1992
• Docket Number: No. 91-15427,91-15427
• Citation: 1 F.3d 873
• Parties: Jason McKinley WARD, Petitioner-Appellant, v. Jessie WALSH, Associate Warden of Programs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 873

1 F.3d 873

Jason McKinley WARD, Petitioner-Appellant, v. Jessie WALSH, Associate Warden of Programs, Respondent-Appellee.

No. 91-15427.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 6, 1992 ^*.

Decided July 30, 1993.

Jason McKinley Ward, in pro. per.

Marc P. Cardinalli, Deputy Atty. Gen., Carson City, NV, for respondent-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: CHOY, NOONAN, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

Jason McKinley Ward is the only Orthodox Jewish prisoner at Ely State Prison in Ely, Nevada. He brought suit under 42 U.S.C. Sec. 1983, arguing that the prison infringes upon his First Amendment right to exercise freely his religion by not providing him with a kosher diet, clothes made of a single fabric, or an Orthodox rabbi; by not allowing him to have candles in his cell; and by refusing to guarantee that he will not be transported on the Sabbath. He seeks injunctive relief only, and appeals pro se from the district court's judgment in favor of the warden after a bench trial.

I

Religion is the first of our rights under the First Amendment and the Bill of Rights. The right to the free exercise of religion is a precious American invention, distinguishing our Constitution from all prior national constitutions. The right to the free exercise of religion is to be jealously guarded. It is the right of a human being to respond to what that person's conscience says is the dictate of God. It is not a right to be readily trammeled by the state. A human being does not cease to be human because the human being is a prisoner of the state. "The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." O'Lone v. Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), provides the test for balancing those interests: "When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."

Turner set forth four factors to be considered in determining when a regulation is reasonably related to legitimate penological interests. First, there must be a " 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Id. at 89, 107 S.Ct. at 2262. Second, whether there are "alternative means of exercising the right that remain open to prison inmates" must be assessed. Id. Third, "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally" must be determined. Id. Fourth, "the absence of ready alternatives" to the regulation must be explored. The "existence of obvious, easy alternatives may be evidence that the regulation is not reasonable." Id.

The warden argues that free exercise claims of prisoners are no longer governed by Turner, but instead must be evaluated under the standard announced in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith held that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " Id. at 879, 110 S.Ct. at 1600 (citation omitted). In reaching that conclusion, the Court noted that it had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Id. at 878-79, 110 S.Ct. at 1600.

We see no reason to depart from Turner. The Supreme Court has held that Turner applies to all constitutional claims arising in prison with the exception of Eighth Amendment claims. See Washington v. Harper, 494 U.S. 210, 223, 110 S.Ct. 1028, 1037, 108 L.Ed.2d 178 (1990); see also Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir.1993) (en banc). Moreover, the Smith case concerned a factual situation far different from the one presented here. Inmates must rely on the prison system to provide them with the necessities of life. Determining to what extent prison officials must accommodate a prisoner's right to free exercise in fulfilling this obligation is wholly different from determining whether free citizens must obey criminal laws of general applicability.

II

Ward argues that the prison is obliged to provide him with a strict kosher diet at the prison's expense "that is certified or deemed religiously acceptable by an outside independent Orthodox Jewish Organization ... at the time the food is physically served to Orthodox Jewish inmates." The diet requested by Ward would require the prison not only to provide kosher food, but to store and to prepare the food in a special manner. Moreover, Ward requests that the food be served in an "eating area [that is] kept kosher for all Jewish inmates."

We have held that "[i]nmates ... have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion." McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.1987). However, we have never determined precisely how this right is to be balanced against budgetary and administrative concerns of the prison. ¹

The warden provides a pork-free diet to inmates who request it, but does not provide a full kosher diet. Whether the culinary policy is reasonable requires a balancing of the degree of intrusiveness into the right of free exercise against the costs of accommodation, giving appropriate deference to prison officials' assessment of the costs. The Turner factors help focus this determination. The first Turner factor requires us to consider whether there is a logical connection between the policy and the legitimate governmental interest that justifies it. The prison has a legitimate interest in running a simplified food service, rather than one that gives rise to many administrative difficulties. Kahey, 836 F.2d at 950. Since the policy of not providing special diets is related to simplified food service, the first factor weighs in favor of the government.

The second Turner factor requires us to consider whether Ward has alternative means by which he can practice his religion. The relevant inquiry under this factor is not whether the inmate has an alternative means of engaging in the particular religious practice that he or she claims is being affected; rather, we are to determine whether the inmates have been denied all means of religious expression. O'Lone, 482 U.S. at 351-52, 107 S.Ct. at 2406. In other cases, courts have found that although some aspects of religious practice were impinged upon, claimants retained the ability to participate in other significant rituals and ceremonies of their faith. For example, although the Muslim claimants in O'Lone were denied the opportunity to attend Jumu'ah, the Muslim weekly religious service, they had the virtually unlimited right to congregate for prayer and discussion outside of working hours. Moreover, the Muslim prisoners had free access to an imam, a Muslim prayer leader, whom the state provided. Muslim prisoners were given special meals, and special arrangements were made during the month-long observation of Ramadan, a period of fasting and prayer, to allow them to take their meals at the religiously prescribed times. Id.

In contrast, Ward's ability to participate in religious observances has been significantly circumscribed within the prison. Because of the remoteness of the area, he does not have access to an Orthodox rabbi. Since he is the only Orthodox Jewish prisoner in the institution, he does not have access to religious services. Moreover, he cannot congregate with other practitioners of his faith for prayer and discussion. It is true that Ward is encouraged to practice other observances of his faith privately. The district court heard testimony from an Orthodox Jewish rabbi that private prayer is a significant aspect of the practice of the Jewish religion. However, we cannot conclude that the opportunity to engage in private prayer is enough to satisfy the second Turner factor as interpreted by O'Lone. If it were, the factor would have no meaning at all because an inmate would always be able to pray privately. See Sample v. Borg, 675 F.Supp. 574, 580 (E.D.Cal.1987), vacated as moot, 870 F.2d 563 (9th Cir.1989). In short, because Ward's religious practice has been so dramatically curtailed in prison, the second Turner factor weighs in his favor. Cf. Kahey, 836 F.2d at 950-51 (second factor weighed in prison's favor because there was no indication that Kahey had been deprived of the ability to practice her religion in any other way).

Also relevant to the evaluation of the second factor is a distinction O'Lone had no occasion to make: the distinction between a religious practice which is a positive expression of belief and a religious commandment which the believer may not violate at peril of his soul. It is one thing to curtail various ways of expressing belief, for which alternative ways of expressing belief may be found. It is another thing to require a believer to defile himself, according to the believer's conscience, by doing something that is completely forbidden by the believer's religion. In order to determine what alternatives are open to Ward, findings must be made as to what is or is not forbidden by his religion. The district court made no such findings; we must remand so that the court can do so.

In making these findings, it will be appropriate for the district court to consider Ward's challenge to the orthodoxy of the rabbi who testified on behalf of the state. In...