408 F.2d 966 (8th Cir. 1969), 19179, Sharp v. Sigler

Docket Nº:19179, 19180, 19200, 19201.
Citation:408 F.2d 966
Party Name:Alvin Allen SHARP, Appellant, v. Maurice H. SIGLER, Warden, Appellee. Charles E. McCLELLAND, Appellant, v. Maurice H. SIGLER, Warden, Appellee. William E. YATES, Appellant, v. Maurice H. SIGLER, Warden, Appellee. Thomas Arthur DAVIS, Appellant, v. Maurice H. SIGLER, Warden, Appellee.
Case Date:March 24, 1969
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 966

408 F.2d 966 (8th Cir. 1969)

Alvin Allen SHARP, Appellant,

v.

Maurice H. SIGLER, Warden, Appellee.

Charles E. McCLELLAND, Appellant,

v.

Maurice H. SIGLER, Warden, Appellee.

William E. YATES, Appellant,

v.

Maurice H. SIGLER, Warden, Appellee.

Thomas Arthur DAVIS, Appellant,

v.

Maurice H. SIGLER, Warden, Appellee.

Nos. 19179, 19180, 19200, 19201.

United States Court of Appeals, Eighth Circuit.

March 24, 1969

Donald F. Burt, Lincoln, Neb., for Charles E. McClelland.

Gary G. Thompson, Lincoln, Neb., for William Edward Yates.

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Robert L. Anderson, Lincoln, Neb., for Thomas Arthur Davis.

Clarence A. H. Meyer, Atty. Gen. of Nebraska, Lincoln, Neb., Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., for appellee.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

BLACKMUN, Circuit Judge.

The four plaintiff-appellants, each of whom is a convicted felon and an inmate of the Maximum Security Unit of the Nebraska Penal Complex, by these actions seek the pronouncement of their right to participate in corporate worship with the general population of the prison. They assert that they have been denied the free exercise of their religion guaranteed by the First Amendment.

The four prepared separate handwritten petitions. These were filed the same day. Each is entitled 'Petition for Court Order Upholding Constitutional Rights'. The petitions, while differing somewhat, are similar. Each alleges that the petitioner is held in maximum security; that the defendant warden has denied him the right to attend the religious services which are held in the prison chapel; that the chapel 'is located deep within the confines of an adequately staffed maximum security penitentiary'; 1 that the petitioner believes in a divine power; and that he is denied his constitutional rights. Each recites that the warden holds the petitioner in segregation not 'as a form of punishment' but only as a security measure.

Judge Van Pelt appointed counsel for each petitioner and held four separate hearings on two consecutive days. The court filed one memorandum containing his findings and conclusions for all four cases. It 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 pauperis.

All four petitioners are white. No issue of race, as such, is present.

We mention each petitioner's prison history:

Sharp: This petitioner, now about 23, was convicted of armed robbery in the District Court of Douglas County, Nebraska, in 1963. A sentence of 5 years was imposed. On June 8, 1966, in the District Court of Lancaster County, Nebraska, Sharp was convicted, upon his plea of nolo contendere, of assault and battery on an officer of the penitentiary. For this offense he received a sentence of 2 years to be served consecutively to the robbery sentence. The robbery sentence has now been served and Sharp remains incarcerated under the assault sentence.

McClelland: This petitioner, now about 40, on December 22, 1948, in the District Court of Douglas County, Nebraska, pleaded guilty to murder in the second degree. He received a life sentence. On the same day in the same court he received a second life sentence on another murder charge. The two sentences were to be served concurrently. On June 6, 1966, McClelland pleaded guilty, in the District Court of Lancaster County, Nebraska, to a charge of first degree murder of a fellow inmate. For this offense he received a third life sentence to be served consecutively to the other two.

Yates: This petitioner, now about 26, on May 29, 1962, in the District Court of Cheyenne County, Nebraska, pleaded guilty to charges of felonious assault, robbery, and automobile theft. He received a sentence of 12 years on each of the first two charges, to be served consecutively, and a 7-year sentence on the third charge to be served concurrently with the others. On March 15, 1963, Yates pleaded guilty, in the District Court of Lancaster County, Nebraska, to a charge of attempt to escape from

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the penitentiary. For this offense he received a sentence of 18 months to be served consecutively to the sentences he was then serving. The 1962 sentences were vacated on procedural grounds by the Cheyenne County court on November 2, 1966. On the same day Yates entered new pleas of guilty to the three 1962 charges. He received sentences of 12 years, 12 years, and 7 years respectively, these sentences to run concurrently and with credit for the time served under the sentences which were vacated.

Davis: This petitioner, now about 32, was convicted of burglary and sentenced. Later, on March 29, 1963, while he was an inmate, he pleaded guilty in the District Court of Lancaster County, Nebraska, to a charge of assault with intent to kill, wound, or maim a fellow inmate. For this offense he received a sentence of 4 years to be served consecutively to the burglary sentence. The burglary sentence has now been served and Davis remains incarcerated under the assault sentence.

We thus have in Sharp a felon convicted first of armed robbery and then of an assault upon a prison officer; in McClelland, a three-time murderer with his last victim a fellow inmate; in Yates a felon convicted of assault, robbery, and automobile theft and then of attempt to escape; and in Davis a felon convicted of burglary and then of an assault upon a fellow inmate. Each of the four, while incarcerated, has managed to commit and be convicted of attempt to escape or of an assaultive felony.

At the time of the hearings in the District Court Sharp had been in the Maximum Security Unit since October 10, 1966, McClelland since November 28, 1965, Yates since March 21, 1967, and Davis since January 6, 1967. Each had been there on previous occasions.

The records contain evidence of the difficulties the respective petitioners have encountered during their incarceration in addition to the formal charges and convictions hereinabove outlined. We share Judge Van Pelt's diffidence, expressed in 277 F.Supp. at 964, as to describing these in detail in a published opinion although the taking of the appeals certainly opens the way to our doing so. We are content to recite the following:

As to Sharp: He has violated numerous prison regulations; has participated in an attack upon a guard; has been found with a knife in his possession; and has been in maximum security on five previous occasions. He has been in no trouble since he was placed in maximum on October 10, 1966.

As to McClelland: He has attempted to escape; has had pills and hypodermic needles and other devices in his possession; and has destroyed prison property. He has been in no difficulty during the 13 months preceding the hearing in district court.

As to Yates: He has violated numerous regulations; has threatened a guard; has fought with other inmates; has attempted more than once to escape; has been defiant and abusive; and, with others, has failed a polygraph test relating to a loaded pistol found in the prison. He has been in maximum security on four previous occasions.

As to Davis: He has violated numerous regulations; has been involved questionably with other prisoners; and has been found with a knife and other contraband in his possession on more than one occasion.

The Maximum Security Unit is a separate building within the Penal Complex. The prison chapel is in another structure in the center of the prison confines. It is about 100 yards from the Maximum Security Unit. It has an organ and an altar. Both Catholic and Protestant services are held in the chapel each Sunday. The chapel, however, is also used for other purposes.

Sharp, McClelland and Yates profess to be Protestant. Davis professes to be Roman Catholic. Each has a Bible furnished by the institution. None has been

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interfered with in the reading of the Bible or in prayer and none has been denied the administration of sacraments. None has made a request for a church program on the radio facility in the cells. Sharp, McClelland and Yates have taken Bible correspondence courses in prison.

On the other hand, none of the four has been allowed to attend regular services in the prison chapel while they have been confined in the Maximum Security Unit. Sharp and McClelland each demanded this privilege by formal written interview request on August 20, 1967. These were returned by the warden with the notation, 'Why?'. Yates testified that he, too, had submitted a written request to attend chapel. Davis testified to the same effect.

As the district court pointed out in its memorandum, there was testimony concerning the possible use of a conference room, about 16 x 18 feet in size, in the Maximum Security Unit for religious services. The defendant warden testified that, if the chaplains approved, he would be willing to have a small altar built for use in that room, to have a piano moved there, and to permit the maximum security inmates to worship there. There would never be more than 18 eligible to do this. He testified further that he would let the chaplains decide how many of these inmates could attend at one time; that 'they may go to church, one or all, if we have to have church all day'; that, if four went together, a lieutenant and a guard would be needed; that, if any of the four petitioners were to be allowed to attend services in the prison chapel, it would be necessary to use handcuffs and have at least one guard for each man; and that he does not have funds available to provide a separate guard for each prisoner. Sharp testified that if an altar and an organ could be provided in the conference room, it was possible that this would change his feeling as to whether he could worship there. McClelland expressed objections to having...

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