382 F.2d 518 (7th Cir. 1967), 15462, Cooper v. Pate

Docket Nº:15462, 15463.
Citation:382 F.2d 518
Party Name:Thomas COOPER, Plaintiff-Appellee and Appellant, v. Frank J. PATE, Warden of the Illinois State Penitentiary, et al., Defendants-Appellants and Appellees.
Case Date:June 29, 1967
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 518

382 F.2d 518 (7th Cir. 1967)

Thomas COOPER, Plaintiff-Appellee and Appellant,


Frank J. PATE, Warden of the Illinois State Penitentiary, et al., Defendants-Appellants and Appellees.

Nos. 15462, 15463.

United States Court of Appeals, Seventh Circuit.

June 29, 1967

Page 519

Edward W. Jacko, Jr., New York City, Robert S. Solomon, Chicago, Ill., for Cooper, Marshall Patner, Chicago, Ill., of counsel.

William G. Clark, Atty. Gen., Thomas D. Decker, Asst. Atty. Gen., for Pate, Richard E. Friedman, First Assistant Atty. Gen., Richard A. Michael, Asst. Atty. Gen., of counsel.


FAIRCHILD, Circuit Judge.

This case is here for the second time. On the first appeal, this court affirmed judgment dismissing the complaint for

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failure to state a cause of action. 1 The Supreme Court reversed, holding that plaintiff Cooper's complaint did state a cause of action. 2

Cooper averred that he is non-white; that he is incarcerated in an Illinois penitentiary; that he is a follower of the sect of Muslims led by Elijah Muhammad; 3 that defendants, the warden and state director of public safety, have denied Cooper permission to obtain and read certain publications; have denied permission to purchase and read Arabic and Swahili grammar books, from which Cooper hopes to learn to read Islamic works in the original; have denied permission to purchase and read the Koran; have denied permission to consult with ministers of his faith; have refused to allow Cooper and other inmates of his faith to attend religious services in their faith, and have placed him in solitary confinement and in a segregation unit because of defendants' hostility toward Cooper's religious beliefs. Cooper sought a declaratory judgment that defendants' acts violated constitutional provisions and sought an injunction.

After trial, the district judge, the Honorable Richard B. Austin, incorporated findings of fact in a written opinion, and rendered judgment July 23, 1965, favorable in several respects to Cooper. Defendants appealed from certain parts of the judgment, and Cooper from others.

The problem. Elijah Muhammad Muslims accept the tenets of 'normative' or 'historical' Islam, 4 but embrace in addition certain teachings of Elijah Muhammad of Chicago (whom they consider also a messenger of Allah) which have no counterpart in normative Islam. These additional teachings include an account of creation according to which the black man was the original man and the white race the product of experiments in genetics. The teachings include the propositions that the white race is a race of devils, the enemies of Allah; that the white man will be punished for what he has done to American negroes; that Allah permitted the white race to rule for 6,000 years, but the time has now expired; and that black people must separate from white people.

Defendants permit prisoners of other faiths to communicate with spiritual advisers, and they arrange for worship services for eight religious groups. Indeed, Illinois statutes require admission of clergymen of all denominations to visit inmates, and require the warden to permit ministrations of religion according to the ceremonies of the respective churches. 5 Cooper, an Elijah Muhammad Muslim, desires the same privileges as are available to those of other faiths.

Defendants, as administrators responsible for the safety of inmates, as well as the success of rehabilitation efforts, and the like, are apprehensive about the presence and effect of the racial doctrines of the Elijah Muhammad Muslims. Stateville, the Illinois penitentiary involved, has 4,700 inmates, negro and white. It is a maximum security prison where the highest degree of immaturity, resentment, irresponsibility, despair, and lack of self control are virtually entrance requirements. 6

Defendants would justify their prohibition of religiously-motivated activities of Elijah Muhammad Muslims as efforts, in the interest of safety, to prevent the

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nurture and spread of such beliefs within the prison, and to avoid explosive impact of these beliefs on those who find them abhorrent. Defendants' concern is understandable. Racism in any form would be dangerous in a crowded, racially-mixed prison. When racism is an article of religious faith, the danger is undoubtedly greater.

The legal principles. Defendants have not argued that the beliefs of Elijah Muhammad Muslims do not constitute a religion. A determination that they do not would be indistinguishable from a comparative evaluation of religions, and that process is beyond the power of a court. 7

It is the general rule in cases where a state court is asked for relief from practices in a state prison, or a federal court in a federal prison, that the court will not interfere with the discretion of the prison administrators. 8 Here the federal court is asked to give relief against the administrators of a state prison. It is asserted that the prison authorities have so greatly impaired Cooper's federally-protected freedom of religion as to give rise to a cause of action under 42 U.S.C. § 1983 But although the deference to administrative discretion is not as complete in a case like the present, weight is still given to the judgment of the administrators in determining the practices which are necessary and appropriate in the conduct of a prison.

It is clear that prison authorities must not punish a prisoner nor discriminate against him on account of his religious faith. 9 But although a prisoner retains his complete freedom of religious belief, his conviction and sentence have subjected him to some curtailment of his freedom to exercise his beliefs. 10

Courts will closely scrutinize the reasonableness of any restriction imposed on a prisoner's activity in the exercise of his religion, and specially so where the adherents of one faith are more heavily restricted than the adherents of another. 11

With the foregoing general principles in mind, we proceed to consider the several parts of the judgment.

1. The Koran (Quran). Defendants were 'enjoined from refusing to plaintiff and other followers of Elijah Muhammad permission to purchase English-language translation of the Holy Quran, including the Mulana Muhammad Ali Edition.' Defendants have not appealed from this decree.

2. Communication and visiting with ministers. Defendants were 'enjoined from refusing to plaintiff and other followers of Elijah Muhammad permission to communicate by mail and visit with ministers of their faith, subject to prison rules and the conditions specified in the

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Memorandum Opinion.' The court's memorandum opinion included a direction to defendants to 'implement rules and regulations consistent with this opinion.' The opinion noted that 'Ordinarily the regulation of the mail and visitation privileges of prisoners is a matter within the administrative discretion of prison officials,' that inmates are usually allowed to write to and be visited by their minister at home or a personally-known minister, and that communication between Elijah Muhammad Muslim inmates and ministers of that faith 'should be allowed within allowable limitations and in conformity with prison practices including usual and generally applicable censorship.'

The court found that defendants had not shown that such communication 'presents a clear and present danger to prison security.' If the clear and present danger standard is the correct test, the district court was clearly correct in finding that communication and visiting had not been shown to pose...

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