Kahane v. Carlson

• Citation: 527 F.2d 492
• Decision Date: 26 November 1975
• Docket Number: D,No. 274,274
• Parties: Meir KAHANE, Plaintiff-Petitioner-Appellee, v. Norman CARLSON, Director of the Federal Bureau of Prisons, et al., Defendants-Respondents-Appellants. ocket 75--2088.
• Court: U.S. Court of Appeals — Second Circuit

Page 492

527 F.2d 492

Meir KAHANE, Plaintiff-Petitioner-Appellee, v. Norman CARLSON, Director of the Federal Bureau of Prisons et al., Defendants-Respondents-Appellants.

No. 274, Docket 75--2088.

United States Court of Appeals Second Circuit.

Argued Oct. 9, 1975.

Decided Nov. 26, 1975.

Edward S. Rudofsky, Asst. U.S. Atty. (David G. Trager, U.S. Atty., E.D.N.Y., Paul B. Bergman, Asst. U.S. Atty., of counsel; Burton S. Weston, Law Clerk, N.Y. University, on the brief), for appellant.

Barry Ivan Slotnick, New York City (Jay L. T. Breakstone, Law Clerk, Brooklyn Law School, and Garrett Lewis, Law Clerk, Fordham Law School, on the brief), for appellee.

Before KAUFMAN, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

In 1971, appellant Kahane, an orthodox Jewish rabbi, was sentenced in the Eastern District of New York to imprisonment and fine for conspiracy to violate the federal Firearms Act. 18 U.S.C. § 371. However, the sentence of imprisonment was suspended by the court, and Kahane was placed on probation. Kahane and his family had made their home in the Eastern District for many years prior to his conviction. While Kahane was on probation, they had removed to Israel with the permission of the court and Kahane had become a candidate for election to the Knesset, the Israeli Parliament. Kahane subsequently admitted to violating the terms of his probation. His probation was accordingly revoked, but his sentence of imprisonment was reduced to a term of one year. Kahane then sought, by several forms of action in the Eastern District of New York, orders requiring the prison administrators to conform the conditions of his incarceration to his religious beliefs concerning diet and prayer. The court, Jack B. Weinstein, Judge, found jurisdiction and venue in the Eastern District of New York and granted Kahane relief in the nature of mandamus.

We conclude that jurisdiction and venue were properly found by the district court in the instant action, that a need for relief was shown, but that the relief granted by the court was somewhat broader than required. We therefore modify the order and, as modified, affirm.

Jurisdiction in the court below was founded upon the mandamus power provided by 28 U.S.C. § 1361:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

The United States contends however that, even though mandamus jurisdiction exists generally in the district courts, venue does not properly lie in the Eastern District of New York for this particular mandamus action. ¹ 28 U.S.C. § 1391(e) governs venue in mandamus cases. ² According to the government, neither the prisoner's present or contemplated place of incarceration, nor the residence of any respondent was in the Eastern District. No real property is involved in the instant action nor could the cause of action regarding deprivation of kosher diet be said to have arisen in the Eastern District. Finally, the government maintains, plaintiff's residence is not in the Eastern District of New York. With this last assertion, we disagree.

The parties agree that the case does not qualify under subdivisions (1) and (3) of § 1391(e). We need not pass upon Kahane's contention that venue can be sustained under subdivision (2) since the circumstances do qualify the case under § 1391(e)(4), which establishes mandamus venue in the district of the plaintiff's residence. To be sure, residence for the purposes of § 1391 is often interpreted as equivalent to domicile, and there are some indications that Kahane has changed his domicile from the Eastern District of New York. 1 J. Moore, Federal Practice P0.142(5.1--1, 5.1--2, 7); Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir. 1972); Ott v. United States Board of Parole, 324 F.Supp. 1034, 1037 (W.D.Mo.1971).

After his sentencing, Kahane moved to Israel with his family and ran for office there. Under ordinary circumstances that would be strong support for a finding of Israeli domicile. At the time of his conviction and sentence, however, he was a long-time resident of the Eastern District and was under active probation supervision there, a probation which he violated. Under these circumstances we hold that, until he had successfully completed probation and had been released from supervision, Kahane should have been considered a resident of the Eastern District for the purpose of venue, entitled to turn to the court for that district.

Venue is a doctrine of convenience of the forum. Denver & R.G.W. R.R. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 560, 87 S.Ct. 1746, 18 L.Ed.2d 954 (1967); Rutland Ry. v. Brotherhood of Locomotive Engineers, 307 F.2d 21, 29 (2d Cir. 1962), cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978 (1963); Penrod Drilling Co. v. Johnson, 414 F.2d 1217 (5th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 552, 24 L.Ed.2d 495 (1970). Domicile is usually the best measure of that convenience since removal, with intent to relinquish personal ties to the old home and remain indefinitely at the new, is the handiest dividing line in measuring relative convenience of the forum. Here, however, continuing probation obligations to the court of the Eastern District made it more sensible to consider that district as Kahane's residence for the purposes of the venue statute. Because of the unusual circumstances here--Kahane's long-time residence in the Eastern District combined with his probation obligations to the court of that district--we conclude that venue was properly laid in the Eastern District of New York. ³ We therefore reach the merits of the matter.

It is by now quite well established that, while prisoners in penal institutions are subject to restrictions on their freedoms, ⁴ the restrictions are not without limit. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Where they operate on fundamental rights such as the freedom of worship, the degree of restriction must be only that which can be justified by an 'important or substantial government interest' in the restriction by the penal institution. ⁵ Id. at 413, 94 S.Ct. 1800. ⁶

The courts have properly recognized that prison authorities must accommodate the right of prisoners to receive diets consistent with their religious scruples. Chapman v. Kleindienst, 507 F.2d 1246, 1251 (7th Cir. 1974); Ross v. Blackledge, 477 F.2d 616 (4th Cir. 1973); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969).

Their (Muslims') request for 'one full-course pork-free diet once a day and coffee three times daily' is essentially a plea for a modest degree of official deference to their religious obligations. Certainly if this concession is feasible from the standpoint of prison management, it represents the bare minimum that jail authorities, with or without specific request, are constitutionally required to do, not only for Muslims but indeed for any group of inmates with religious restrictions on diet.

Barnett v. Rodgers, supra at 1001.

The evidence in this case justifies the court's finding of the deep religious significance to a practising orthodox Jew (which this prisoner concededly is) of the laws of Kashruth. The dietary laws are an important, integral part of the convenant between the Jewish people and the God of Israel.

The district court on the evidence before it was thoroughly justified in its finding of the religious importance to the prisoner of the Jewish dietary rules. We agree with the court below that the prison authorities are proscribed by the constitutional status of religious freedom from managing the institution in a manner which unnecessarily prevents Kahane's observance of his dietary obligations. The difficulties for the prisons inherent in this rule would seem surmountable in view of the small number of practising orthodox Jews in federal prisons (which the evidence indicated would not exceed approximately twelve) and in view of the fact that state and city prisons provide kosher food, that federal institutions do so on high holidays and that medical diets are not unknown in the federal system.

The order under review indicates that there are several means within the reach of the respondents by which Kahane's rights may be respected. Some of these means, such as methods for self-preparation of vegetables and fruits, are suggested by respondents themselves. Provision of tinned fish, boiled eggs and cheese may be made from regular institution supplies. The language of the opinion incorporated in the order ⁷ may be interpreted to require hot kosher TV dinners. If these are merely suggested methods, we find no fault with them. If, however, the order requires implementation of each and every one of these methods, it would go further than necessary to reach the required result. Such details are best left to the prison's management which can provide from the food supplies available within budgetary limitations. Prison authorities have reasonable discretion in selecting the means by which prisoners' rights are effectuated. See Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Shakur v. Malcolm, 525 F.2d 1144, 1148, n. 3 (2d Cir. 1975).

The use of frozen, prepared foods, while perhaps helpful, is not constitutionally required if another acceptable means of keeping kosher is provided. We therefore modify the order to require the provision of a diet sufficient to sustain the prisoner in good health without violating the Jewish dietary laws, without otherwise mandating specific items of diet. As so modified, the order is affirmed.

Mandate may issue forthwith.

FRIENDLY, Circuit Judge (concurring):

Judge Weinstein's initial opinion in this case, dated May 7, 1975, predicated jurisdiction on 28 U.S.C. § 2255, or, alternatively, on 28 U.S.C. § 1361, although the only named defendant...