Phelps v. Dunn
| Citation | 965 F.2d 93 |
| Decision Date | 28 May 1992 |
| Docket Number | No. 91-5835,91-5835 |
| Parties | Paul PHELPS, Plaintiff-Appellant, v. Wayne DUNN and Clark Edwards, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Douglas L. McSwain, Ogden, Sturgill & Welch, Lexington, Ky., (argued and briefed), for plaintiff-appellant.
David A. Sexton, Asst. Atty. Gen., Linda G. Cooper, Office of Atty. Gen., Barbara W. Jones, John T. Damron (argued and briefed), Office of Gen. Counsel Corrections Cabinet, Frankfort, Ky., for defendants-appellees.
Before: NELSON and BOGGS, Circuit Judges; and KRUPANSKY, Senior Circuit Judge.
Paul Phelps, a state prisoner, alleges that prison officials violated his rights under the Free Exercise Clause and Establishment Clause of the first amendment by denying him participation in prison religious services because he is a homosexual. The district court, 770 F.Supp. 346, granted summary judgment to defendants on the grounds that there were sufficient security concerns to justify their actions against the prisoner and that, in fact, he was not denied his right to practice his religion. We reverse and remand because there are genuine issues of material fact as to whether the prisoner posed a security risk and whether he was denied attendance at the religious services.
Plaintiff Paul Phelps is a state prisoner who was imprisoned at the Northpoint Training Center ("NTC") in Burgin, Kentucky for part of 1985, all of 1986, and most of 1987. Phelps is a practicing Christian and a homosexual. Phelps alleges that while at NTC he was denied equal participation and attendance at religious services in the prison chapel because of his homosexuality.
Upon entering NTC, and after discussing his homosexual status with the prison chaplain, Willie C. Polk, Jr., Phelps became an active participant in NTC's religious services. He sang at the services, both as a soloist and as part of a group, he sang with the New Hope Singers who performed for outside audiences, he served as chapel janitor, and he gave testimony during service. Chaplain Polk, knowing that Phelps was homosexual, did not object to this participation. Chaplain Polk felt that it was his responsibility to guarantee that all services were open for attendance and equal participation by all inmates, unless such attendance posed a security risk. At no time did Chaplain Polk view Phelps as a security risk.
Phelps participated in NTC religious services regularly for thirteen months without incident, until August 1986. At that time, Chaplain Polk went on vacation for two weeks and his regular services were conducted by one of NTC's volunteer chaplains, Rev. Clark Edwards, who had been conducting one or two services a week at NTC since he had signed on as a volunteer in February 1986. Phelps alleges that while Polk was on vacation, Phelps and Rev. Edwards had a conversation, disagreeing on whether Christians could be homosexuals. Phelps alleges that Rev. Edwards then denied him participation in the religious services because of Phelps's homosexuality. After this two-week period, tensions allegedly began to mount between pro- and anti-gay Christian factions of the prison community. However, Phelps continued his regular religious service activity under Chaplain Polk when he returned and throughout the fall. No incidents occurred during this time.
Sometime during the fall of 1986, Phelps told Rev. Edwards that the Lord had spoken to him while he was in the hospital with a spleen injury and that he was no longer homosexual. At that time, Rev. Edwards let Phelps sing solos and give testimonies at his Tuesday night services. This participation was subsequently denied when Phelps was caught in a homosexual act and once again acknowledged his homosexual identity. On December 2, 1986, Phelps asked Rev. Edwards if he could give testimony that night in Rev. Edwards's regular Tuesday night service. Rev. Edwards denied the request, citing security risks. Rev. Edwards was then allegedly warned that some members of the congregation were planning a demonstration of some sort. That night, Rev. Edwards conducted the entire service himself. At one point, Phelps stood up as if to speak. Captain Sims, who had, at Rev. Edwards's request, attended the service with some other officers to curb potential problems, then entered the Chapel from the foyer. Phelps, after expressing how glad he was to be attending the service, immediately sat down, and no other incidents occurred that night.
While it is possible that this event could have been found to show that Phelps was a security risk, the issue was eventually adjudicated after Phelps filed an Inmate Grievance on December 5, 1986, claiming that Rev. Edwards had denied him equal participation in the December 2 service. Deputy Warden Wayne Dunn, in an informal resolution on December 11, 1986, upheld Rev. Edwards's decision, stating:
All inmates are encouraged to attend any religious service, study or program. If Mr. Phelps wants to lead a service by speaking, singing, et cetera, this is not acceptable because of his admitted homosexual activity. The other men attending the services support the position taken by the volunteer chaplain.
Phelps then appealed to the full Grievance Committee, which included Deputy William Bain, the direct supervisor of Chaplain Polk. On December 24, 1986, the Committee found that
Mr. Phelps is not barred from services; but he is a controversial figure due to his sexual preference (homosexual). The Chaplain Chief, Willie Polk, sees no wrong in his taking part in services and leadership. However, the volunteer Chaplain, Rev. Edwards, does not concur in members of the Gay Community leading the worship service. Deputy Warden Wayne Dunn, whose responsibilities include our Chapel and Religious Programs, concurs with Rev. Edwards.
Recommendations: If Mr. Phelps [sic] leadership in the Chapel Service is causing disruption with trauma which is damaging the overall program, he should not be allowed a leadership role. Whereas, if it is only a minority of two residents objecting to Mr. Phelps [sic] leadership role, then he should be allowed full participation....
Phelps then appealed to the next level, Warden Dewey Sowders, who, on January 13, 1987, held:
I do not agree with the philosophy that only certain inmates should be permitted roles in chapel activities. All inmates should be afforded the opportunity to participate in leadership roles regardless of sexual preference.
In response to Warden Sowders's ruling, Chaplain Polk issued a memorandum on January 16, 1987, which stated in part:
In response to inmate participation in chapel services and grievance # 976, please note the following mandates as given by Warden Dewey Sowders ... All religious activities conducted by NTC chapel volunteers or participated in by volunteers, must be at the access of the general inmate population. All inmates, Gay Christians and alleged homosexuals alike, must be provided the opportunity to actively participate in free religious expression.
After some political infighting between the Warden and Deputy Warden, on February 2, 1987, Warden Sowders issued the following statement in response to Polk's memorandum:
A memorandum dated January 16, 1987, issued by Chaplain Willie Polk contains inaccurate information that needs clarification. A grievance was filed by an inmate who was being denied active participation in religious services held at Northpoint Training Center. My decision on this issue was that all inmates should be given the opportunity to participate in worship services. The question of sexual preference was not considered in the decision.
Northpoint offers a valuable service by providing denominational as well as non-denominational religious outlets for its residents. How can we who profess to be Christians make a judgment to include or exclude certain individuals who some may deem inappropriate based on sexual preference?
J.A. at 94 (emphasis in original).
In the trial court and on appeal, Phelps maintained, based on Warden Sowders's decision, that he was never found to be a security risk and that Rev. Edwards and Deputy Dunn failed to enforce the Warden's grievance decision. Phelps asserts that Warden Sowders specifically required that he be allowed to participate in religious services, as he was not a security risk on account of his homosexuality. Yet, despite this decision, Phelps alleges that he was thereafter never allowed to participate in services or even enter the chapel. J.A. at 524. He alleges that he was subjected to continuous harassment and was threatened with "write-ups" and "lock-ups" if he attended services. Phelps claims he was retaliated against by being subject to three "write-ups" in the two weeks following Warden Sowders's decision. Until that time, Phelps had good custody "scores," received meritorious good time awards, and received a commendation from his dorm officers for his actions during emergency conditions in April 1986.
Phelps filed suit against Deputy Dunn and Rev. Edwards under 42 U.S.C. § 1983 in district court in October 1987. United States Magistrate Joseph Hood recommended summary judgment for the plaintiff on the issue of liability and assigning the case for trial on the issue of damages. The district court judge rejected this recommendation and directed the parties to file cross-motions for summary judgment. Phelps did not file for summary judgment but instead asked for a trial date. On remand, United States Magistrate Judge James Cook recommended summary judgment for defendants. The district court agreed and granted summary judgment on the grounds that there were sufficient security concerns to justify Deputy Dunn's actions. Phelps appeals, seeking reversal and remand for trial.
This court reviews a grant of summary judgment de novo and it uses the same test as used by the district court...
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