411 F.2d 23 (5th Cir. 1969), 26079, Walker v. Blackwell

Docket Nº:26079.
Citation:411 F.2d 23
Party Name:Henry E. WALKER et al., Appellants, v. Olin G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.
Case Date:May 14, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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411 F.2d 23 (5th Cir. 1969)

Henry E. WALKER et al., Appellants,


Olin G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.

No. 26079.

United States Court of Appeals, Fifth Circuit.

May 14, 1969

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for appellants.

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Charles L. Goodson, U.S. Atty., Theodore E. Smith, Asst. U.S. Atty., Atlanta, Ga., for appellee.

Before BELL and COLEMAN, Circuit Judges, and HENDERSON, District Judge.

ALBERT J. HENDERSON, Jr., District Judge:

Appellants (hereinafter referred to as petitioners), Black Muslim prisoners in the Atlanta Federal Penitentiary, claim that they are entitled, under the First and Fifth Amendments, to certain religious practices denied them by the warden. The district court held that the warden's denial of these privileges was reasonable, unarbitrary, and, therefore, within his constitutional limits of discretion. We affirm in part and reverse in part.

Petitioners are before this court for the second time. On their first appearance, the judgment of the district court, which dismissed their petition as not actionable under the Civil Rights Act of 1871, 42 U.S.C. § 1983, was reversed. We held that the petition stated a cause of action as a civil action in the nature of mandamus, under 28 U.S.C. § 1361, and remanded for a determination on the merits. Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966). The petitioners now appeal the judgment by the trial court against them on the merits.

During the course of the litigation in this case, petitioners have won the right, both by compromise and court order, to various religious practices, including (1) wearing of religious medals, (2) the possession of the Black Muslim bible, the Holy Qur-An, (3) to hold weekly scheduled religious meetings, (4) the possession of the book, Message to the Black Man, by Elijah Muhammad, (5) to apply for a chaplain to be reimbursed by the government on a contract basis. Here, they seek the following privileges, all of which were denied them by the district court: (1) to be served a specified restricted diet after sunset, during the month of December (Ramadan), (2) to listen to the national weekly radio broadcast of their prophet, Elijah Muhammad, (3) to receive the Black Muslim newspaper, 'Muhammad Speaks', (4) to correspond directly with Elijah Muhammad.

We stated the issue in the earlier case of Walker v. Blackwell: '* * * (Whether) the rules and regulations imposed on these prisoners are reasonable and justifiable in the administration of a large prison population, maintenance of discipline, and control of any dangers and hazards presented.' 360 F.2d at 69.

There is no doubt that the courts will scrutinize administrative action involving the constitutional claims of prisoners, Black Muslim or otherwise, who allege racial or religious discrimination, or claim a deprivation of the 'preferred' freedoms of the First Amendment. See, e.g., Jackson v. Godwin, 400 F.2d 529, 535 (5th Cir. 1968); Long v. Parker,390 F.2d 816 (3d Cir. 1968); Toles v. Katzenbach, 385 F.2d 107 (9th Cir. 1967); Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967); Walker v. Blackwell,supra; Sostre v. McGinnis, 334 F.2d 906 (2d Cir. 1964); Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 295 F.2d 171 (1961); Pierce v. LaVallee,293 F.2d 233 (2d Cir. 1961); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961).

All that remains for this court is to apply the standard of Jackson v. Godwin, supra, to each religious practice giving rise to a conflict between Black Muslim inmates and the warden of the Atlanta Federal Penitentiary.

In both the areas of racial classification and discrimination and First Amendment freedoms, we have pointed out that stringent standards are to be applied to governmental restrictions in these areas, and rigid scrutiny must be brought to bear on the justifications for encroachments on such rights. The (government) must strongly show some substantial and controlling interest which requires the subordination or limitation of these important constitutional rights, and which justifies their infringement, (citing numerous cases) and in the absence of such compelling justification

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the (government) restrictions are impermissible infringments of these fundamental and preferred rights. (Citing numerous cases). 400 F.2d at 541. 1

In other words, the petitioners must first demonstrate to the trial court the deprivation of a right either by (1) deliberate discrimination, or by (2) even handed application of an inherently discriminatory rule. 400 F.2d at 537-540. Then, in order to continue such a policy of deprivation, the government must show a compelling and substantial public interest requiring the subjugation of the right.

At the trial held in the district court, petitioners called four witnesses: Food Supervisor Fred Cameron, and three Black Muslim inmates, Roland X. Ghee, William C. X. Rindgo, George 6X Edward Nixon. Petitioners also cross-examined extensively the government's sole witness, Associate Warden Frederic R. Dickson, Jr. These five witnesses, plus certain documentary evidence, constituted the total evidence before the district court. Based upon this record, we consider the four requested privileges individually.



Petitioners testified that it was impossible to make a selection of foods, consistent with their religious beliefs, from the regular daily menu at the penitentiary. The menu was deficient because of the presence of pork, or the essence of swine, which was 'divinely prohibited' and could not be eaten by them. Their proposal was to observe Ramadan between 6:00 and 9:00 in the evenings, after the normal dinnertime, but at a time when it would not cause interference with petitioners' regular work schedule at the prison. According to petitioners, the cost of purchasing the foods necessary to their special diet, such as Akbar coffee and pastries, and preparing them for the late meal, would not be prohibitive.

According to Associate Warden Dickson, the prison officials did not feel that they could afford, within the limits of the existing budget, to buy the various items, not already in stock at the penitentiary, which were required by the restricted diet of the Muslims. Of course, some of the items were already in stock. One meal a year, the Passover Seder, was provided for Jewish inmates as a religious holiday meal. However, the Muslims were demanding thirty days of such meals. Because of the additional burden of preparation of these meals, another food supervisor and another cook would be required, creating an additional expense.

Fred Cameron, Food Administrator of the Atlanta Penitentiary, testified that the Muslim menu would not meet the dietary requirements insisted upon by the Bureau of Prisons. Although the essence of swine was present in some of the food at all penitentiary meals, an inmate could 'sustain himself very well with the items that do not contain pork' from the regular daily menu. R, 102.

The after sunset hour also created a security problem:

Well, each of these people in an institution the size of the penitentiary of Atlanta live in different quarters. Many of them live inside of a cell block. Many of them who have reduced custody live outside of the security area, which would require a security problem of bringing these people. R, 78-79.

The movement of people after * * * the sun is down presents a problem because * * * we do not staff for that sort of thing. We'd

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have to re-staff. We have a ceiling placed on us and on staffs so we could not go out and just hire anybody off the street to take care of their program. R, 47.

The district court upheld the warden on all counts. It noted the additional expense of the purchase of additional food to prepare the December (Ramadan) meals, and found that '* * * there is no purposeful discrimination as among the various religious sects in the prison as to diet'. With regard to the general allegation that petitioners were subjected to a diet which offended their religious practices, and the testimony that all of the foods furnished petitioner contained pork, except coffee and cereal, the court found that testimony to be untrue and that the diets as shown in the record could sustain prisoners while avoiding pork or the essence of swine. It recognized that the security problem created by the late meal would require 'additional staff', because many of the Muslims were severe custodial risks by institutional classification.

We affirm. It is our opinion that considerations of security and administrative expense outweigh whatever constitutional deprivation petitioners may claim. In this regard, the court holds that the government has demonstrated a substantial and compelling interest, that of security, which compels the deprivation of these after-sunset meals during the month of December (Ramadan). In addition, the added expense of purchasing and preparing this special food, in the light of the present ability of the Muslims to sustain themselves without eating essence of swine, is another substantial reason for placing these minor restrictions on the practice of the faith of Islam at the penitentiary.



The prison radio system was described as having two channels, each of which played continuously from 6:00 A.M. until 11:45 P.M., except on Friday and Saturday nights, when the system operated until 1:30 A.M.

It was prison policy to present a balanced program during the broadcast period. When asked his understanding of the balanced program, Dickson stated:

A. News...

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