Sharp v. Sigler
| Decision Date | 11 December 1967 |
| Docket Number | Civ. No. 1279L-1282L. |
| Citation | 277 F. Supp. 963 |
| Parties | Alvin Allen SHARP, Inmate, Nebraska Penal and Correctional Complex, Petitioner, v. Warden, Maurice H. SIGLER, Nebraska Penal and Correctional Complex, Respondent. Charles E. McCLELLAND, Inmate, Nebraska Penal and Correctional Complex, Petitioner, v. Warden, Maurice SIGLER, Nebraska Penal and Correctional Complex, Respondent. William Edward YATES, Inmate, Nebraska Penal and Correctional Complex, Petitioner, v. Warden, Maurice SIGLER, Nebraska Penal and Correctional Complex, Respondent. Thomas Arthur DAVIS, Inmate, Nebraska Penal and Correctional Complex, Petitioner, v. Warden, Maurice H. SIGLER, Nebraska Penal and Correctional Complex, Respondent. |
| Court | U.S. District Court — District of Nebraska |
William D. Sutter, Lincoln, Neb., for petitioner Sharp.
Donald F. Burt, Lincoln, Neb., for petitioner McClelland.
Gary G. Thompson, Lincoln, Neb., for petitioner Yates.
Robert L. Anderson, Lincoln, Neb., for petitioner Davis.
Harold Mosher, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., for respondent.
These separate cases are now before the court for decision following separate trials. There is one question in common to each of the cases. It is whether or not petitioners are being subjected to unlawful discrimination under the freedom of worship clause of the First Amendment to the Constitution by reason of the admitted fact that they are not allowed to attend religious services in the Penitentiary chapel.
Petitioners are each inmates of the Nebraska Penal Complex, each having been sentenced on felony charges. Mr. McClelland is now 39 years of age and has been in the Complex approximately 19 years as a result of two life sentences to be served concurrently on first degree murder charges. While an inmate he was accused of murdering another inmate and was tried and convicted in the District Court of Lancaster County, Nebraska, and again received a life sentence to run consecutive with the prior sentences. Mr. Sharp, who is 22, was convicted in Dodge County, Nebraska, of robbery and has completed the sentence imposed on that charge. While serving the robbery sentence, he was convicted in the District Court of Lancaster County, Nebraska, of an assault and battery based upon his stabbing another inmate. He is now serving that sentence. Mr. Yates, who is 25, was originally sentenced on a charge of felonious assault, robbery and stealing an automobile. In 1963 he was sentenced in the District Court of Lancaster County upon the charge of attempting to escape from the Penitentiary. Mr. Davis, who is 31, was originally sentenced on a burglary charge, which he has now served. He was thereafter convicted in the District Court of Lancaster County, as the result of an attack on another inmate with a knife.
Each of these persons has been confined to the maximum security building in the Penal Complex for periods ranging from several months to a period of over two years in the case of McClelland. Each petitioner has been in the maximum security ward on previous occasions and has been released and then returned upon subsequent violations.
In addition to the known crimes of such gravity as stabbing of an inmate and the killing of another inmate, one of the petitioners is believed by prison authorities to have known of the bringing into the prison of a loaded revolver. However, it was not found on him. It is a fair deduction from the files that each petitioner has at times administered or attempted to administer physical abuse to other prisoners.
The court does not attempt to relate in detail the testimony as to each prisoner. It would serve no useful purpose and might be harmful to the prisoner if the record of complaints against him was set forth in detail in an opinion open to the public. The court has only attempted to set forth enough to show that each prisoner has been convicted of a felony since his original incarceration in the penitentiary and that each is a person who is or has been dangerous to other prisoners or in danger from other prisoners. Each petitioner is a white person. Race is not involved in the complaints. (Exhibits are in evidence reciting the reasons for such confinement and the periods of confinement.)
Each prisoner expresses the desire to attend church on Sunday morning in the prison chapel which is located approximately 100 yards from the maximum security building. Both buildings are within the penitentiary walls. Davis professes to be a Roman Catholic; the other three are Protestants. Both Roman Catholic and Protestant services are held in the chapel each Sunday.
The Warden testified that he did not have sufficient guards available or funds to hire sufficient guards to furnish the necessary guards for each of the persons in maximum security, if each asked to be taken to church services, and expressed fear in some instances for other inmates and in some instances for the petitioner if petitioners were allowed to attend such services.
Each petitioner has a Bible furnished to him by the prison authorities. Each petitioner testified that he had never been interfered with by any of the prison authorities or employees in the reading of the Bible or in prayer and each stated that the prison officials or employees have never prevented him from receiving the sacraments of his church. It does not appear that any petitioner has ever requested the administration of sacraments that was not granted and there is an inference that two or three of the petitioners have never requested the administration of the sacraments.
Radios with head phones are available in each cell. Two channels are available with different programs on each. The programs are determined by attempting to meet the requests of the majority of those in maximum security. There has not been a request for church programs. The Warden indicated a willingness to provide such if there was a request. There was an indication from his testimony that even if one or two requested it he would endeavor to make some radio church service available to the headphone users.
There was considerable testimony dealing with the use of a conference room in the maximum security ward for church services and the prison chaplain expressed the opinion that a satisfactory service could be held there. It is a fair inference from the Catholic priest's testimony that satisfactory mass could not be held there due to the absence of the necessary accouterments. However, he had administered Communion and received confessions in the conference room. He regarded it as satisfactory for those purposes and for conferences. As to Davis, the priest could recall his attending church once although he said it was possible he might have attended on a few other occasions. It is a fair inference from his testimony that Davis is not one who attends frequently, and is a person whom the priest thought was not interested in attending mass.
The three Protestants have all taken some religious correspondence courses particularly courses sponsored by the Seventh Day Adventist Church. None are members of that church although the step-mother of one is a member.
At the outset we are met with the question of whether or not the writ of habeas corpus is an appropriate remedy to raise the First Amendment freedoms. The Court of Appeals for the Fourth Circuit in Roberts v. Pegelow, 313 F.2d 548, considered this and pointed out:
(550)
This court is inclined to adopt a similar position. Petitioners are entitled to a hearing upon their claims. In several cases it has been held that relief from similar complaints is available under the Federal Civil Rights Acts. See in re Ferguson, 55 Cal.2d 663, 12 Cal.Rptr. 753, 361 P.2d 417; see also Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 involving the claim of a state prisoner that because of religious beliefs he was denied permission to purchase certain religious books and denied religious privileges enjoyed by other prisoners. The United States Supreme Court held that a claim was stated and that it was error to dismiss the case. Petitioner had relied both upon 42 U.S.C.A. § 1983 and upon 28 U.S.C.A. § 1343 in bringing his action.
The court concludes that it does have jurisdiction to hear these cases.
The question is also raised as to whether or not there was a state remedy available to petitioners. It is clear that they have not attempted to avail themselves of a state remedy. A reading of In re Application of Dunn, 150 Neb. 669, 35 N.W.2d 673, causes this court to believes that petitioners have no remedy in the state courts.
The Second Circuit has held that religious freedom occupies such a "preferred" position in our society that an action could be maintained even though no action had been brought in the state courts. See Pierce v. LaVallee, 2 Cir., 293 F.2d 233. We do not need to take that position here.
It is clear to this court that the petitioners have the right to raise the questions here raised, even though the decision complained of may involve questions of prison discipline. See Sewell v. Pegelow, 291 F.2d 196 (4 Cir. 1961); United States v. Pate, D.C., 229 F.Supp. 818 (1964).
The First Amendment, so far as material here, provides:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *."
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...v. Peyton (4th Cir. 1971) 437 F.2d 1228, 1231. 22 Sharp v. Sigler, supra, 408 F.2d at 971. 23 A similar demand was made in Sharp v. Sigler (D.Neb.1967) 277 F.Supp. 963 and denied. The denial was affirmed in 408 F.2d at 24 In Diamond v. Thompson, supra, 364 F.Supp. at 667, n. 7, Judge Johnso......
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Sharp v. Sigler
...declined to grant the relief sought and it did not order that additional services be held in the Maximum Security Unit. Sharp v. Sigler, 277 F. Supp. 963 (D.Neb.1967). It then issued certificates of probable cause under 28 U.S.C. § 2253. The appeals are in forma All four petitioners are whi......
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