O'MALLEY v. Brierley

• Decision Date: 30 April 1973
• Docket Number: No. 72-1056.,72-1056.
• Citation: 477 F.2d 785
• Parties: Father John J. O'MALLEY et al., Appellants, v. Joseph R. BRIERLEY, Superintendent of the State Correctional Institution at Pittsburgh, et al.
• Court: U.S. Court of Appeals — Third Circuit

477 F.2d 785 (1973) Father John J. O'MALLEY et al., Appellants, v. Joseph R. BRIERLEY, Superintendent of the State Correctional Institution at Pittsburgh, et al.

No. 72-1056.

United States Court of Appeals, Third Circuit.

Submitted February 2, 1973.

Decided April 30, 1973.

Harry F. Swanger, Leonard I. Sharon, James H. Logan, Paul D. Boas, Pittsburgh, Pa., Stanley A. Bass, NAACP Legal Defense Fund and Educational Fund, New York City, for appellants.

Frederick N. Frank, Asst. Atty. Gen., John J. Kennedy, Jr., Asst. Atty. Gen., J. Shane Creamer, Atty. Gen., Harrisburg, Pa., for appellees.

Roslyn M. Litman, Pittsburgh, Pa., for American Civil Liberties Union, Greater Pittsburgh Chapter, for amicus curiae.

Before SEITZ, Chief Judge, ALDISERT, Circuit Judge, and FISHER, District Judge.

Submitted Under Third Circuit. Rule 12(6) February 2, 1973.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question presented on this appeal is the propriety of summary judgment in an action brought under the Civil Rights Act, 42 U.S.C. § 1983, by certain Catholic priests and prisoners, contending that their First Amendment rights were abridged when state prison officials withdrew from the priests previously granted privileges to conduct religious services and counseling within the prison. Ruling that plaintiffs' complaint failed to set forth a claim upon which relief could be granted, the district court entered summary judgment for the defendants. We affirm the judgment as against the priest-plaintiffs, but reverse the judgment as against the prisoner-plaintiffs.

Father John O'Malley and Father Augustus Taylor, although not official prison chaplains, began to visit Western Penitentiary in 1969, and soon developed a close spiritual relationship with many inmates, both black and white. In November, 1969, Father Taylor conducted an Afro-American Mass in the prison chapel, the alleged purpose of which was to "relate the essentials of the Catholic Mass more significantly to the black experience." Shortly after the celebration of this Mass both Father Taylor and Father O'Malley were denied further visitation privileges at the prison.

By affidavit, Joseph R. Brierley, Superintendent of Western Penitentiary, described the Mass:

The Afro-American Mass lacked any semblance of a religious service and was in fact a political rally.

It did not attract Catholic inmates but rather self-proclaimed Black Nationalists and Black Panthers. In fact less than two per cent of the inmate population, or ten prisoners are Negroes who profess Roman Catholicism.

Plaintiff Father Taylor began the Afro-American Mass by holding his clenched fist in the air. He said "I do not believe in a honky Christ." He went on to say that he is a revolutionary. The entire theme of his address to those in attendance was black militancy. There was little reference at all to any religious matters, with the exception of the receiving of communion which was indiscriminately given to non-Catholic prisoners. Father Taylor\'s speech was followed by inmates standing in the pulpit giving testimonials to Black Nationalism.

Responding by affidavit, Father Taylor insisted:

The Mass conducted at Western Penitentiary in November 1969 was presented in the traditional Catholic Mass structure. Extemporaneous prayers and prescribed prayers of rite were utilized, communion was offered and the essential liturgy was followed. I was assisted by Father Dennis Kinderman. Within this structure, I talked about Jesus and how he was related to them (Black Prisoners) . . . The real message I was seeking to convey was that Jesus Christ and Christianity was identified with them and their condition . . . Any reference to a Honky Christ was a call to examine exactly what Jesus Christ meant and to reject the White false values we are told to worship and which are embodied in the traditional White image of Christ. In saying this I was not suggesting a form of Black racism and or any interpretation that being pro-Black meant anti-White was incorrect. I suggested we were above that and that our consciousness of Blackness meant recognizing, discovering, enjoying, and living our Afro-American heritage. In this process we would discover that Black people and their collective mind are "together" just as Jesus Christ was "together" . . . I tried to conclude this theme by urging all those Black people in attendance to spread the peace, harmony, and togetherness which they had as a whole congregation throughout the prison among Black and White prisoners alike.

Several months later, following negotiations with and intercession by the state attorney general, both priests were readmitted to very limited visitation privileges.¹ Then, on September 20, 1971, shortly after the Attica, New York prison riot, the priests participated in what they described as a "peaceful and lawful demonstration . . . held outside the gates of the Western Penitentiary in support of prison reform, the elimination of racism in prison, and in sympathy for those persons slain at Attica State Penitentiary in New York." Two days later, Fathers Taylor and O'Malley received a letter, dated September 20, 1971, from Superintendent Brierley, which stated in part:

In the past you have been denied permission to visit with members of our population for a number of reasons, many of which we have previously discussed. However, because of your persistence to be permitted to again visit here and your voiced good intentions to be of service, as well as a request in your behalf by my superiors, I relented and gave the approval for your visiting members of our prison population. However, after witnessing your so very active part in the demonstration outside the institutional walls at noon today, I can readily see that it is your sole purpose to incite the prison population to riot and I am therefore forced to rescind the approval permitting you to enter the confines of this institution. . .

Superintendent Brierley indicated that he based his actions upon the following observations and conclusions:

The speeches being made at the demonstration could be heard in the South Block of the institution. The inmates in that section of the institution soon told other inmates in other parts of the institution what was being said by the demonstrators.

The demonstrators charged the officials at Western Penitentiary with failing to communicate with the prisoners and with oppression of the prisoners. There was an outburst from the prisoners who could hear the demonstrators and the demonstrators answered the outburst.

At this point I took notice of the probable effect of this demonstration on the inmate population. Tension was already high in the prison because of the Attica State Prison incident which had preceded the demonstration by only a few days.

Because I feared the inmate population would be agitated by this demonstration, I had the inmates in the South Block moved to another part of the institution so they could not hear what the demonstrators were saying. At no time did I order the demonstrators to move. In fact, no prison official moved beyond the prison gate during the course of the demonstration.

I personally observed both plaintiff Father O\'Malley and plaintiff Father Taylor taking part in this demonstration. It was my carefully considered opinion that because of their participation in a demonstration of this nature, it would be a serious security risk to readmit them as spiritual advisors inside the institution. There was no doubt in my mind that the purpose of this demonstration was to incite the prisoners to riot. Therefore I could not jeopardize the safety of the institution by permitting any of the participants in that demonstration inside the institution in the future.

Superintendent Brierley explained further that there has never been any interference with the practice of the Catholic faith by prisoners, and that there are two Catholic prison chaplains, one full-time and one part-time. These priests conduct services in the prison chapel every Sunday and on every Holy Day, and have daily access to visit and counsel all Catholic prisoners.

By affidavit, Father S. Richard Terza reported that he was assigned by the Bishop of the Diocese of Pittsburgh to the position of full-time Catholic chaplain at Western Penitentiary. Father Terza stated that he "had the fullest possible cooperation from all prison officials in all aspects of serving the Catholic inmates," that he has "free access to all Catholic inmates who desired religious counsel, . . . and at no time has the practice of the Catholic faith by inmates of the institution been interfered with by the officials of the institution, nor have these officials discriminated among Catholic prisoners on racial grounds." Moreover, Father Terza observed that "there is no tenet or article of the Roman Catholic faith which permits a member of the laity to dictate the selection of his parish priest."

Because prison authorities withdrew their visitation privileges, the priests asserted a deprivation of First Amendment rights and sought injunctive and declaratory relief against the ban. The priests requested money damages as well, compensatory and punitive, "in an amount to be determined by a jury for the humiliation, public scorn and derision suffered by them."

As a matter of preliminary importance, it is essential to note that the priests are suing in their own right. They seek personal injunctive relief and money damages for injuries allegedly sustained by them. The prisoners, too, are suing in their own right, for themselves and for a class of inmates similarly situated. It is inappropriate, therefore, to construe the claims of the priests as derivative claims of others "not immediately before the Court which could not be effectively vindicated except through an appropriate representative before the Court. See Barrows v. Jackson, 346 U.S. 249, 255-259, 73 S.Ct. 1031, 1034, 1036, 97 L.Ed. 1586 1953...