Allen v. Toombs

• Citation: 827 F.2d 563
• Decision Date: 08 September 1987
• Docket Number: No. 86-3805,86-3805
• Parties: Earl ALLEN; Donald Barkley, Plaintiffs-Appellants, v. Thomas G. TOOMBS, individually and in his official capacity as Administrator of the Corrections Division of the State of Oregon; J.C. Keeney, individually and in his official capacity as Superintendent of Oregon State Penitentiary, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 563

827 F.2d 563

Earl ALLEN; Donald Barkley, Plaintiffs-Appellants, v. Thomas G. TOOMBS, individually and in his official capacity

as Administrator of the Corrections Division of the State of

Oregon; J.C. Keeney, individually and in his official

capacity as Superintendent of Oregon State Penitentiary,

Defendants-Appellees.

No. 86-3805.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 7, 1987.

Decided Sept. 8, 1987.

Allen Hart and Rick T. Haselton, Portland, Or., for plaintiffs-appellants.

Philip Schradle, Asst. Atty. Gen., Salem, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and FERGUSON, Circuit Judges, and STEPHENS, Jr., ^* District Judge.

FERGUSON, Circuit Judge:

Plaintiffs/appellants Carl Allen and Donald Barkley ("plaintiffs") appeal from the district court's grant of the defendants' motion for summary judgment on their claim for declaratory and injunctive relief under 42 U.S.C. Sec. 1983. The plaintiffs' claim, alleging violations of the First and Fourteenth Amendments, arose from prison policies regarding the participation of inmates of the Disciplinary Segregation Unit in two rituals of Native American religion, the Pipe Ceremony and the Sacred Sweat Lodge. We affirm the district court.

I.

Plaintiffs are Native Americans presently incarcerated in the Oregon State Penitentiary ("OSP"). OSP is a maximum security prison located in Salem, Oregon. It currently houses about 2000 prisoners, of whom 80-100 are Native Americans. OSP includes the Disciplinary Segregation Unit ("DSU"), ¹ which is a separate building some distance from the cell block in which the general prison population is housed. Inmates confined in the DSU are those who constitute the greatest security risk to the institution, staff, and other inmates. OSP policy prohibits regular contact between DSU inmates and inmates in the general prison population, although there are some occasions under which supervised contact is permitted, for familial visits between general population inmates and DSU inmates, and for police investigations. DSU inmates are also allowed a limited number of trips outside the segregation unit to confer with lawyers, for visits with wives or girlfriends, and for medical purposes. DSU staff accompany the inmates on all such trips.

At the time of filing their complaint both plaintiffs had been in the DSU for more than a month. ² While confined in the DSU, plaintiffs repeatedly requested that they be allowed to participate in the ceremonies of their religion: ³ they asked that a Pipe Bearer be allowed to come to the DSU to perform the Pipe Ceremony ⁴ in front of their cells, and that DSU inmates be allowed access to the Sacred Sweat Lodge. ⁵ These requests were either ignored or summarily denied. DSU inmates who were adherents of other faiths had access to the rituals of their religion as OSP permitted priests, ministers, and spiritual leaders to perform religious rituals in the unit and allowed inmates to participate in them.

On February 4, 1985, about three months before plaintiffs filed suit, their attorney wrote to defendant Keeney detailing the plaintiffs' concerns over the unavailability of a Pipe Ceremony for Native Americans in the DSU. On May 21, 1985, plaintiffs filed their complaint. Plaintiffs alleged that prison policies denied DSU inmates any opportunity to attend and participate in either the Pipe Ceremony or the Sacred Sweat Lodge, and that these policies therefore abridged their constitutional rights to free exercise of their religion and to equal protection of the laws. Plaintiffs also alleged that OSP unconstitutionally limited the number of general population inmates, as distinguished from DSU inmates, who were permitted to participate in the weekly Sweat Lodge Ceremony. ⁶

On August 5, 1985, defendant Keeney issued an official memorandum announcing a new policy with respect to the access of DSU inmates to the Pipe Ceremony. The memorandum provided that the ceremony would be available on a weekly or monthly basis to DSU inmates, so long as an outside volunteer Pipe Bearer was available. ⁷ The Pipe Bearer would prepare the pipe in front of the cell of a Native American who had requested the ceremony, pass the pipe through the bars, and at the end of the ceremony, move to the next inmate requesting the ceremony.

Both parties then moved for summary judgment. Plaintiffs argued that the defendants' newly announced policy of allowing DSU inmates to participate in the Pipe Ceremony, but requiring that an outside, volunteer spiritual leader, and not an inmate Pipe Bearer, conduct the ceremony, was unconstitutional. They argued that the policy infringed their rights under the free exercise and equal protection clauses, because the limited availability of outside volunteer leaders resulted in an undue restriction on access to spiritual counseling and the rites of their religion.

On April 1, 1986, the district court granted defendants' motion for summary judgment on plaintiffs' claims concerning the DSU inmates' access to both the Pipe Ceremony and the Sweat Lodge. Judgment was entered on April 8, 1986, and plaintiffs timely appeal.

II.

A grant of summary judgment is reviewable de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Since the parties in the instant case agree that there are no genuine issues of material fact, the issue for this court is whether the district court correctly applied the substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

III.

A. Free exercise claims

Several well-settled principles govern the court's consideration of constitutional challenges to prison regulations. First, inmates clearly retain the protections afforded by the First Amendment, Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), including its directive that no law shall prohibit the free exercise of religion. See Cruz v. Beto, 405 U.S. 319, 321-22, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).

Incarceration, however, necessarily brings about the withdrawal or limitation of many of the privileges and rights available to nonprisoners. See Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Such restrictions arise both from the fact of incarceration and from the valid penological considerations underlying the corrections system. Id. In the context of the First Amendment,

a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system....

Pell, 417 U.S. at 822, 94 S.Ct. at 2805.

The plaintiffs argue that the penitentiary's policies governing the access of DSU inmates to rituals of the Native American religion unconstitutionally burden their rights under the First Amendment to the free exercise of their religion. The district court summarily disposed of plaintiffs' free exercise claims, noting only that the Pipe Ceremony restriction "both furthers the defendants' interest in security and is necessary to isolation of inmates in DSU" and that as to the Sweat Lodge ceremony, "the current restriction does further a legitimate penal interest in security."

In two recent opinions, the Supreme Court has set forth the factors a court should consider in determining the reasonableness of a challenged restriction on First Amendment rights. See Turner v. Safley, --- U.S. ----, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); O'Lone v. Estate of Shabazz, --- U.S. ----, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it, and the governmental objective itself must be a legitimate and neutral one. A second consideration is whether alternative means of exercising the right on which the regulation impinges remains open to prison inmates. A third consideration is the impact accommodation of the asserted right will have on guards, other inmates, and the allocation of prison resources. Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation. See Turner, 107 S.Ct. at 2262. Applying this analytical framework, we conclude that the district court correctly granted summary judgment for the defendants on the plaintiffs' claim concerning access to the Sweat Lodge Ceremony.

Plaintiffs ask that inmates confined in the DSU for more than one month be allowed monthly access to the Sweat Lodge, after the regular ceremony for general population inmates is concluded. Defendants contend, however, that the prohibition on access to the Sweat Lodge is necessary to maintain security in the DSU. In particular, they note that the ceremony requires the use of an axe to chop wood for a fire, red hot stones to heat the lodge, and a pitchfork to transport the stones from the fire to the lodge interior. Defendants argue, we think not unreasonably, that the use of these materials necessarily involves a substantial security risk every time the ceremony is held anywhere in the OSP. Defendants also contend, and we are persuaded, that these risks would be magnified if DSU inmates were given access to the Sweat Lodge.

There is therefore clearly a "valid, rational" connection between the restriction on access to the Sweat Lodge and the legitimate security concerns of OSP administrators. See Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3217, 3232, 82 L.Ed.2d 438 (1984). Moreover, the restriction appears to operate in a neutral manner, without regard to the content of the restricted activity. See Pell, 417 U.S. at 828, 94 S.Ct. at 2807. No DSU inmates are allowed outside...