95 F.3d 472 (7th Cir. 1996), 95-1843, Kerr v. Farrey

Docket Nº:95-1843.
Citation:95 F.3d 472
Party Name:James W. KERR, Plaintiff-Appellant, v. Catherine J. FARREY and Lloyd Lind, Defendants-Appellees.
Case Date:August 27, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 472

95 F.3d 472 (7th Cir. 1996)

James W. KERR, Plaintiff-Appellant,

v.

Catherine J. FARREY and Lloyd Lind, Defendants-Appellees.

No. 95-1843.

United States Court of Appeals, Seventh Circuit

August 27, 1996

        Argued Jan. 12, 1996.

Page 473

        Walter Stern, (argued), Union Grove, WI, for Plaintiff-Appellant.

        Stephen J. Nicks, (argued), Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for Defendants-Appellees.

        Before CUMMINGS, FLAUM, and DIANE P. WOOD, Circuit Judges.

        DIANE P. WOOD, Circuit Judge.

        The question presented in this case is whether a state correctional institution may require an inmate, upon pain of being rated a higher security risk and suffering adverse effects for parole eligibility, to attend a substance abuse counseling program with explicit religious content, consistent with the Establishment Clause of the First Amendment to the U.S. Constitution. Applying the test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the district court concluded that the prison program did not violate the Establishment Clause and

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granted the defendants' motion for summary judgment. We find, to the contrary, that the state has impermissibly coerced inmates to participate in a religious program. We therefore reverse and remand for further proceedings.

        I

        James W. Kerr, at the time this case arose, was an inmate at the Oakhill Correctional Institution, a minimum security facility in Oregon, Wisconsin. Catherine J. Farrey is the warden at Oakhill, and Lloyd Lind is the supervisor for Oakhill's Social Services Department. Oakhill requires inmates with chemical dependence problems, like Kerr, to observe Narcotics Anonymous ("NA") meetings as part of their rehabilitation program. According to Kerr, whose version of the facts we accept on this appeal from summary judgment, the penalty for nonattendance at NA meetings was a higher security risk classification and negative effects on parole eligibility. NA was the only substance abuse program available to the Oakhill inmates. Oakhill used it because of its demonstrated success with prison inmates and because it was free for both the institution and the inmates.

        The NA brochure, which was part of the summary judgment record, sets forth the twelve-step program that lies at the heart of its treatment approach. These twelve steps, which we set forth in full, described the road to recovery that successful NA participants had followed:

        1. We admitted that we were powerless over our addiction, that our lives had become unmanageable.

        2. We came to believe that a power greater than ourselves could restore us to sanity.

        3. We made a decision to turn our will and our lives over to the care of God as we understood Him.

        4. We made a searching and fearless moral inventory of ourselves.

        5. We admitted to God, to ourselves, and to another human being the exact nature of our wrongs.

        6. We were entirely ready to have God remove all these defects of character.

        7. We humbly asked Him to remove our shortcomings.

        8. We made a list of all persons we had harmed, and became willing to make amends to them all.

        9. We made direct amends to such people wherever possible, except when to do so would injure them or others.

        10. We continued to take personal inventory, and when we were wrong promptly admitted it.

        11. We sought through prayer and meditation to improve our conscious contact with God, as we understood Him, praying only for knowledge of His will for us, and the power to carry that out.

        12. Having had a spiritual awakening as a result of those steps, we tried to carry this message to addicts and to practice these principles in all our affairs.

        The parties do not dispute the fact that the NA meetings at Oakhill were organized around these principles.

        Kerr asserted in an affidavit that he objected as soon as he was told by Alan Webb, the prison social worker assigned to his case, that he would be required to attend the NA meetings. His affidavit claimed that Webb told him that he "didn't have a choice in the matter; that attendance was mandatory; that if [he] didn't go, [he] would most likely be shipped off to a medium (i.e. higher security) prison, and denied the hope of parole." When Kerr first attended the NA meeting, he objected to dragging God's name into "this messy business of addictions," and he expressed his disagreement with the view of God that was propounded at the meeting. Kerr regarded NA's deterministic view of God to be in conflict with his own belief about free will; more generally, he found it offensive to his personal religious beliefs.

        Warden Farrey confirmed in her affidavit that inmates were required to "observe" the NA meetings, although she stated that they were not required to "participate." She also conceded that "Narcotics Anonymous does use the concept of a 'higher being' in their

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treatment approach." This concept, she went on to say, was viewed as a very personal matter and could range from a religious concept of God to the non-religious concept of individual willpower. Nevertheless, she confirmed that the NA program followed the twelve principles set forth above. Finally, she confirmed that refusal to attend recommended treatment programs like NA could have an adverse impact on an inmate's security risk rating and consideration for parole, although she asserted that no inmate had ever suffered the former penalty solely for refusing to participate in NA or in Alcoholics Anonymous, a similar program for alcoholics.

        II

        On December 19, 1994, acting pro se, Kerr filed this suit under 42 U.S.C. § 1983, naming both Warden Farrey and Lind as defendants. He initially asked for an injunction preventing the prison officials from compelling himself and other inmates to attend NA meetings and from keeping records of attendance at those meetings. He also asked for unspecified compensatory and punitive damages. The district court allowed him to proceed in forma pauperis. On February 15, 1995, the defendants filed a motion for summary judgment, attaching Warden Farrey's affidavit and the NA brochure in support of the motion. Kerr responded on March 9, 1995. He asserted that the "flexible" spirituality that NA claimed did not reflect the actual operation of the program and that the NA approach was antithetical to his religious beliefs. He also stated that the Oakhill NA meetings always began with a prayer invoking the Lord and that all members were encouraged to read the NA book, which is similar to the AA "Big Book" and contains many references to spirituality and God. Finally, in the event his materials were deemed insufficient to defeat the summary judgment motion, he asked for 60 more days for further discovery. He attached excerpts from Rational Recovery, a non-spiritually based self-help substance abuse recovery program, and the AA Big Book, in addition to other materials, to his response. The defendants filed their reply on March 21, 1995, which added the argument that they were entitled to qualified immunity from suit.

        The next day, March 22, 1995, the district court granted the defendants' motion. The court's order acknowledged that "Narcotics Anonymous uses the concept of a 'higher being' in its treatment approach." It accepted Warden Farrey's representation that the "higher being" concept could range from a religious view of God to the nonreligious concept of individual willpower (and thus implicitly rejected Kerr's evidence to the contrary). The court also found that inmates like Kerr were required to observe the NA meetings and that refusal to attend could have an adverse impact on an inmate's security risk rating and consideration for parole. Nevertheless, the court found no Establishment Clause violation. Following the three-part test of Lemon, the court concluded (without explanation) that the NA program had a secular purpose, that it neither advanced nor inhibited religion, and that there was no state entanglement "in terms of economic support." The court found support for its result in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), which held that a prison policy impinging on an inmate's First Amendment rights (relating to inmate marriages and inmate-to-inmate correspondences) was valid if it was reasonably related to legitimate penological interests. Finally, it rejected the argument that the NA program impermissibly burdened Kerr's rights under the Free Exercise Clause of the First Amendment or the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. In light of its rejection of Kerr's claims on the merits, the district court did not reach the defendants' claim of qualified immunity.

        III

        A. Effect of Kerr's Parole

        Before turning to the merits of the claims Kerr raises, we must consider one preliminary question: which, if any, of them are still properly before us? On August 14, 1995, after the district court granted summary judgment and this appeal was docketed, Kerr was paroled from Oakhill. This action renders his claim for injunctive relief from the mandatory attendance requirement moot. City of Los Angeles v. Lyons, 461

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U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Knox v. McGinnis, 998 F.2d 1405, 1413-14 (7th Cir.1993). Counsel for the State asserted at oral argument that August 14th was the earliest date at which he could have been paroled, but Kerr claimed that this was not true. Unfortunately, the record before us is inadequate to resolve this matter, which means on summary judgment review that we must accept Kerr's account...

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