293 F.2d 233 (2nd Cir. 1961), 418, Pierce v. La Vallee

Docket Nº:418, 26878.
Citation:293 F.2d 233
Party Name:James PIERCE, Plaintiff-Appellant, v. J. E. LA VALLEE, Warden of Clinton Prison, Dannemora, New York, Defendant-Appellee. Martin T. SOSTRE, Plaintiff-Appellant, v. J. E. LA VALLEE, Warden of Clinton Prison, Dannemora, New York, Defendant-Appellee. William SA MARION, Plaintiff-Appellant, v. J. E. LA VALLEE, Warden of Clinton Prison, Dannemora, New Y
Case Date:July 31, 1961
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 233

293 F.2d 233 (2nd Cir. 1961)

James PIERCE, Plaintiff-Appellant,

v.

J. E. LA VALLEE, Warden of Clinton Prison, Dannemora, New York, Defendant-Appellee.

Martin T. SOSTRE, Plaintiff-Appellant,

v.

J. E. LA VALLEE, Warden of Clinton Prison, Dannemora, New York, Defendant-Appellee.

William SA MARION, Plaintiff-Appellant,

v.

J. E. LA VALLEE, Warden of Clinton Prison, Dannemora, New York, Defendant-Appellee.

No. 418, 26878.

United States Court of Appeals, Second Circuit.

July 31, 1961

Argued June 19, 1961.

Page 234

Edward W. Jacko, J., New York City (Jawn A. Sandifer, New York City, on the brief), for appellants.

Gretchen White Oberman, Asst. Atty. Gen. of New York, New York City (Louis J. Lefkowitz, Atty. Gen., New York City, and Paxton Blair, Sol. Gen., Albany, N.Y., on the brief), for appellee.

Before CLARK and SMITH, Circuit Judges, and DAWSON, District Judge.

CLARK, Circuit Judge.

In these three actions, plaintiffs seek relief under the Civil Rights Act, 28 U.S.C. § 1343, 42 U.S.C. § 1983, for religious persecution alleged to have been practiced upon them while they were inmates of Clinton State Prison at Dannemora, New York. In each complaint the plaintiff alleges that he has been denied permission to purchase the Koran, has been subjected to solitary confinement because of his religious beliefs and deprived of good time, and has been denied permission to establish contact with his spiritual advisor on the ground that such person was not on an approved correspondence list. All three complaints pray for the right to purchase the Koran, for an end to religious discrimination, and for other and further relief as justice requires. The Pierce complaint, in addition, specifically requests the right to contact a spiritual advisor. The only defendant in all three actions is the warden of the prison at Dannemora, where all three plaintiffs were incarcerated at the time they commenced their actions. At the time of trial, plaintiffs Sostre and SaMarion had been transferred to the Attica State Prison, and Pierce alone remained at Dannemora. No assurance exists, however, that SaMarion and Sostre may not be returned to Dannemora; and we do not think the mere fact of their transfer to another prison renders their actions moot.

At trial, the district court over protest limited the issues to the denial of the Koran, on the ground that any other problems raised by the complaint concerned matters of prison discipline to be reviewed only in the state courts. With respect to the right to contact a 'spiritual advisor,' plaintiffs acquiesced in this decision; and we think that issue must be deemed to have been abandoned. Indeed, when the defense referred to this problem on a couple of occasions, plaintiffs' attorney protested on the ground that it was not one of the issues in the case. 1 But no such abandonment may be found with respect to the issues of solitary confinement and good time. If plaintiffs ever acquiesced in the withdrawal of these issues, they did so only under pressure from the court and they withdrew their acquiescence almost immediately. Throughout the trial they sought to introduce evidence in support of this claim. Accordingly, unless the district court was correct in holding that this was a matter for the state court, we must reverse and remand for consideration of the issues thus raised.

A considerable body of authority, particularly from the Seventh and Ninth Circuits, holds that a state prisoner complaining of improper prison treatment must seek his relief in the state court. See, e.g., State of Oregon ex rel. Sherwood v. Gladden, 9 Cir., 240 F.2d 910; United States ex rel. Atterbury v. Ragen, 7 Cir., 237 F.2d 953,

Page 235

certiorari denied 353 U.S. 964, 77 S.Ct. 1049, 1 L.Ed.2d 914; United States ex rel. Wagner v. Ragen, 7 Cir., 213 F.2d 294, certiorari denied 348 U.S. 846, 75 S.Ct. 68, 99 L.Ed. 667; United States ex rel. Morris v. Radio Station WENR, 7 Cir., 209 F.2d 105; Siegel v. Ragen, 7 Cir., 180 F.2d 785, certiorari denied 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1391; Kelly v. Dowd, 7 Cir., 140 F.2d 81, certiorari denied 321 U.S. 783, 64 S.Ct. 639, 88 L.Ed. 1075; Nichols v. McGee, D.C.N.D.Cal., 169 F.Supp. 721, appeal dismissed 361 U.S. 6, 80 S.Ct. 90, 4 L.Ed.2d 52; Curtis v. Jacques, D.C.W.D.Mich., 130 F.Supp. 920; Piccoli v. Board of Trustees and Warden of State Prison, D.C.N.H., 87 F.Supp. 672. Whatever may be the view with regard to ordinary problems of prison discipline, however, we think that a charge of religious persecution falls in quite a different category. See Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Follett v. Town of McCormick, S.C., 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938, 152 A.L.R. 317; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81. As the Supreme Court has there pointed out, freedom of religion and of conscience is one of the fundamental 'preferred' freedoms guaranteed by the Constitution. We must approach decision with that admonition in mind.

Hence the present cases are quite distinguishable from those presenting charges that prisoners were abused physically, or subjected to unreasonable restrictions on their personal liberty. United States ex rel. Atterbury v. Ragen, supra; United States ex rel. Wagner v. Ragen, supra; Siegel v. Ragen, supra; Curtis v. Jacques, supra. In part, these decisions may be explained on the ground that they do not involve any violation of a constitutional right. See particularly the concurring opinion of Judge Finnegan in United States ex rel. Atterbury v. Ragen, supra, 7 Cir., 237 F.2d 953, 957. True, not all of the cases cited above can be so distinguished. United States ex rel. Morris v. Radio Station WENR, supra, and Nichols v. McGee, supra, involved claims by Negro prisoners that they were denied the equal protection of the laws. Kelly v. Dowd, supra, moreover, involved the same problem presented here, namely, a claim of religious persecution in the denial of a prisoner's right to secure Bible study helps circulated by the Watch Tower Society. On the other hand, a district court has granted relief to a state prisoner who claimed...

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