922 F.2d 370 (7th Cir. 1991), 89-3382, Young v. Lane

Docket Nº:89-3382, 89-3489.
Citation:922 F.2d 370
Party Name:John Wesley YOUNG, III, Laurence Mack, Martin D. Kracht, Calvin S. Carter, Francis A. McKenna, and John Phillips, Plaintiffs-Appellees, v. Michael P. LANE, Director, Department of Corrections, State of Illinois, Leo L. Meyers, Assistant Director/Adult Division, Department of Corrections, State of Illinois, Linda A. Giesen, Warden, Dixon Correctiona
Case Date:January 07, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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922 F.2d 370 (7th Cir. 1991)

John Wesley YOUNG, III, Laurence Mack, Martin D. Kracht,

Calvin S. Carter, Francis A. McKenna, and John

Phillips, Plaintiffs-Appellees,

v.

Michael P. LANE, Director, Department of Corrections, State

of Illinois, Leo L. Meyers, Assistant Director/Adult

Division, Department of Corrections, State of Illinois,

Linda A. Giesen, Warden, Dixon Correctional Center, Larry E.

Sachs, Assistant Warden/Programs, Dixon Correctional Center,

Richard B. Gramley, Warden, Dixon Correctional Center, and

William O'Sullivan, Assistant Warden/Operations, Dixon

Correctional Center, in their official and individual

capacities, Defendants-Appellants.

John Wesley YOUNG, III, Laurence Mack, and Francis A.

McKenna, Plaintiffs-Cross-Appellants,

v.

Michael P. LANE, Director, Department of Corrections, State

of Illinois, Leo L. Meyers, Assistant Director/Adult

Division, Department of Corrections, State of Illinois,

Linda A. Giesen, Warden, Dixon Correctional Center, Larry E.

Sachs, Assistant Warden/Programs, Dixon Correctional Center,

Richard B. Gramley, Warden, Dixon Correctional Center, and

William O'Sullivan, Assistant Warden/Operations, Dixon

Correctional Center, in their official and individual

capacities, Defendants-Cross-Appellees.

Nos. 89-3382, 89-3489.

United States Court of Appeals, Seventh Circuit

January 7, 1991

Argued Sept. 6, 1990.

Page 371

Gary Sternberg, Kurt Yahn, Andrew Schneiderman, Gershon Kulek, Sternberg & Associates, Chicago, Ill., Karl F. Winkler, Mary P. Gorman, O'Brien, Heeley, Wade & Gorman, Rockford, Ill., for plaintiffs-appellees, plaintiffs-cross-appellants.

John Wesley Young, III, Mount Sterling, Ill., pro se.

Neil F. Hartigan, Atty. Gen., William D. Frazier, James P. Nally, Peter V. Bustamante, Asst. Attys. Gen., John A. Morrissey, Office of the Atty. Gen., Chicago, Ill., for defendants-appellants, defendants-cross-appellees.

Before WOOD, Jr., CUDAHY, and RIPPLE, Circuit Judges.

WOOD, Jr., Circuit Judge.

Dixon Correctional Center ("Dixon"), a penal institution under the direction of the Illinois Department of Corrections, is a former mental hospital that was converted into a prison in October 1983. In May 1988, the time of trial in this action, Dixon was a medium-security prison housing 890 inmates. Of those 890 inmates, seven (less than one percent) were Jewish. 1 This lawsuit addresses their right to exercise their religious beliefs while at Dixon.

I.

Plaintiffs, six former inmates at Dixon, filed individual, pro se complaints that were consolidated into the present action. The gravamen of the consolidated, amended pro se complaint, filed March 1, 1985, was that defendants, officials at both Dixon and the Illinois Department of Corrections during the relevant period, had infringed plaintiffs' first amendment right to exercise their religious beliefs. The March 1985 complaint alleged that defendants: had failed to schedule Jewish religious services; had failed to relieve plaintiffs of work assignments on Jewish holy days; had failed to provide a full-time rabbi; had prevented plaintiffs from conducting their own religious services; had refused to permit plaintiffs to attend religious services in neighboring communities; and had failed to provide plaintiffs with a daily kosher diet. The plaintiffs invoked 42 U.S.C. Sec. 1983 and sought declaratory and injunctive relief as well as compensatory and punitive damages.

On October 25, 1985, plaintiffs, with the aid of appointed counsel, further amended their complaint 2 to allege that defendants

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had restricted plaintiffs in the free exercise of their religion by failing to expend revenue to compensate or reimburse visiting rabbis while at the same time expending revenue to provide clergy for inmates of other faiths. Plaintiffs also alleged that defendants had denied their requests to wear yarmulkes and had failed to establish rules providing for and protecting the religious needs of the Jewish inmates.

Defendants denied the substance of plaintiffs' allegations and raised the affirmative defense of qualified immunity. During the course of the litigation, defendants altered their conduct and began to provide plaintiffs with a kosher diet and also reimbursed visiting rabbis for their travel expenses.

Prior to trial, on May 4, 1988, defendants filed a motion for summary judgment. Included in that motion was the argument that the injunctive portion of the lawsuit was moot as to four plaintiffs, each of whom was no longer incarcerated at Dixon. While initially denying the motion, the district court later reconsidered and ordered that the motion be taken with the proofs at the time of trial.

After bench trial commencing on May 12, 1988, the district court entered an order finding that the plaintiffs' constitutional rights had been violated by those acts alleged in the October 1985 complaint. Specifically, the district court found that the defendants' policy of restricting the wear of yarmulkes violated plaintiffs' first amendment rights. Young v. Lane, 733 F.Supp. 1205, 1209 (N.D.Ill.1990). The district court also found that the defendants' failure, now corrected, to reimburse visiting rabbis had been a violation of plaintiffs' first amendment rights. Id. at 1209-10. Last, the district court found that the defendants had been "inconsistent and slow" in responding to requests by Jewish inmates at Dixon, 3 a course of conduct that it believed was attributable to the Department of Corrections' failure to publish "specific statewide policies." 4 See id. at 1211.

As to relief, the district court denied defendants' claims of qualified immunity but found no proof of injury and awarded only nominal damages. Id. Then, with little or no evidence before it regarding conditions at other Illinois penal institutions, the district court proceeded to issue an injunction requiring defendants to issue statewide rules concerning areas in which the defendants' conduct had been found to violate the Constitution as well as areas in which the defendants' conduct had not been found to violate the Constitution. 5 The

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court also granted attorneys' fees to the plaintiffs. Id. at 1212.

After trial, the two plaintiffs remaining at Dixon were transferred to different institutions, and the record presently indicates that only one of the plaintiffs remains incarcerated, although not at Dixon. 6 The district court entertained and denied post-trial motions for reconsideration by both sides, but did grant plaintiffs' petition for attorneys' fees and costs. Defendants filed this appeal, and plaintiffs cross-appealed the district court's failure to reconsider its award of nominal damages. For the following reasons, we reverse and remand with instructions.

II.

  1. Injunctive Relief

    Federal appellate jurisdiction is not an exception to the Constitution's "case or controversy" requirement, and a "controversy must normally exist at every stage of [a] proceeding, including the appellate stages." R. ROTUNDA, J. NOWAK & J. YOUNG, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE Sec. 2.13, at 103 (1986) (citing, e.g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 reh'g denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973)). As part of their effort to remedy perceived constitutional violations at Dixon, the plaintiffs seek to control the defendants' conduct at Dixon by means of an injunction. The plaintiffs, however, by virtue of their transfers, are no longer incarcerated at Dixon. Unaccompanied by any continuing, present injury or real and immediate threat of repeated injury, their past exposure to illegal conduct at Dixon does not show a pending case or controversy regarding injunctive relief, O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974), and we must vacate as moot that portion of their prayer for relief. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); Rhodes v. Bureau of Prisons, 477 F.2d 347 (5th Cir.1973).

    Under these circumstances, the only factor that would spare the injunctive relief awarded below is a determination that one of the plaintiffs is "likely to be retransferred" to Dixon. 7 See Moore v. Thieret, 862 F.2d 148, 149-50 (7th Cir.1988); see also Vitek v. Jones, 445 U.S. 480, 487 & n. 5, 100 S.Ct. 1254, 1260-61 & n. 5, 63 L.Ed.2d 552 (1980); Mann v. Hendrian, 871 F.2d 51, 53 (7th Cir.1989). This expectation cannot arise as to those plaintiffs who are no longer incarcerated, see Vitek,

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    445 U.S. at 487 n. 5, 100 S.Ct. at 1260-61 n. 5, but it can arise as to those plaintiffs who are presently incarcerated and under the aegis of the Illinois Department of Corrections. Moore, 862 F.2d at 150; see also Vitek, 445 U.S. at 487 & n. 5, 100 S.Ct. at 1260-61 & n. 5. 8 Plaintiffs have not made this showing, nor have they been given the opportunity, and we cannot make that factual determination on this record. Accordingly, we remand this issue to the district court for further findings. 9

  2. Monetary Relief

    Even if the plaintiffs' transfers moot their claim for injunctive relief, their claim for damages survives. Azeez v. Fairman, 795 F.2d 1296, 1297 (7th Cir.1986); see also Boag v. MacDougall, 454 U.S. 364, 364, 102 S.Ct. 700, 700, 70 L.Ed.2d 551 (1982). The damages claim also suffers from disabilities, however. The alleged violations are neither of such caliber as to rise to the level of constitutional violations nor are they so clearly established as to remove qualified immunity. 10

    The free exercise clause of the first amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. CONST. amend. I. That clause, made applicable to defendants by incorporation into the fourteenth...

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