Abernathy v. Cunningham, 11608.

• Decision Date: 01 April 1968
• Docket Number: No. 11608.,11608.
• Citation: 393 F.2d 775
• Parties: Charles M. ABERNATHY, Appellant, v. W. K. CUNNINGHAM, Jr., Director, Division of Corrections; C. C. Peyton, Superintendent of the Virginia State Penitentiary; and M. L. Royster, Superintendent of the Virginia State Farm, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

393 F.2d 775 (1968)

Charles M. ABERNATHY, Appellant, v. W. K. CUNNINGHAM, Jr., Director, Division of Corrections; C. C. Peyton, Superintendent of the Virginia State Penitentiary; and M. L. Royster, Superintendent of the Virginia State Farm, Appellees.

No. 11608.

United States Court of Appeals Fourth Circuit.

Argued November 6, 1967.

Decided April 1, 1968.

Robert L. Taylor, Richmond, Va., (Court-appointed counsel) Edward E. Lane & Associates, Richmond, Va., on brief for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellees.

Before BOREMAN and CRAVEN, Circuit Judges, and WOODROW W. JONES, District Judge.

BOREMAN, Circuit Judge:

Abernathy, a Virginia prisoner, petitioned the district court to order his release from the maximum security building at the Virginia State Penitentiary at Richmond and, further, to grant him certain relief in matters incident to the free exercise of his religion, Islam. After several conferences, the court scheduled a hearing for February 1967. The hearing was recessed, however, to permit the respondents to file an amended answer advising the court of the penitentiary's recently inaugurated regulations concerning Muslim prisoners.¹ Although many of this prisoner's complaints were satisfactorily resolved by the new rules, several were not, and Abernathy himself still remained in the prison's maximum security section, "C" Building. Thereafter, in April 1967, the district court conducted an exhaustive evidentiary hearing at the conclusion of which the court denied relief on all but one of the issues still before it. After a thorough review of the record we affirm.

Initially, we consider Abernathy's contention that he is being illegally detained in "C" Building but no extended discussion concerning precisely what is involved in "C" Building detention is necessary here as this court has on two recent occasions discussed this feature of the Virginia penal system. See Landman v. Peyton, 370 F.2d 135 (4 Cir. 1966), cert. denied, 385 U.S. 881, 87 S.Ct. 168, 17 L. Ed.2d 108 (1966); Howard v. Smyth, 365 F.2d 428 (4 Cir. 1966), cert. denied, 385 U.S. 988, 87 S.Ct. 599, 17 L.Ed.2d 449 (1966). "C" Building houses some prisoners assigned to solitary confinement. However, the greater number of its inmates are not so confined; they, like Abernathy, are in maximum security detention which is more restrictive than imprisonment of the prison population at large but not nearly so harsh and confining as that of prisoners in "solitary." While this court, faced with the facts in Howard and Landman, spoke quite harshly of the uses made of "C" Building, we certainly did not intend to imply that a prisoner's confinement there may not be justified and represent a valid exercise of the judgment and discretion of prison officials in the difficult area of penitentiary discipline. Such a situation is presented here.

Abernathy was convicted of murder and robbery in 1960. In late summer of that year he entered the penitentiary at Richmond where he remained for only a few months prior to his removal to the Virginia State Farm in January 1961. Frequently, from that time until January 1965 when he was returned to Richmond and placed in "C" Building's maximum security section, Abernathy was a source of trouble. The prison farm records reveal that, during his four-year stay there, Abernathy was punished a total of fifteen times for various offenses.² We conclude that the decision to return him to Richmond and to "C" Building was fully justified. He had demonstrated again and again that he was unruly, continuously in trouble, unable to mix with the general farm population and unable "to get back on the right track."

Abernathy, still confined in "C" Building, contends (1) that he should be released therefrom as his confinement there amounts to punishment and is unreasonable in light of the offenses he has admittedly committed and for which he has already been punished; also (2) that his confinement is the result of officials' discrimination against him because of his race (Negro) and religion.

The first of these contentions has really been answered above. While confinement in the maximum security area ("C" Building) is admittedly a form of punishment for past misconduct it also assures that those prisoners who have shown themselves to be unable to mix with the general prison population without undue friction, or whose presence poses a threat to general prison discipline and safety, are set apart and kept under much closer observation than would otherwise be possible. Their opportunities for getting into trouble are greatly lessened although some — like Abernathy — still manage to commit punishable offenses.³ At the same time, the inconveniences which necessarily attend maximum security detention provide an incentive for cooperation by the prisoner. The decision to place Abernathy in maximum security was made by the Director of the Division of Corrections on the advice of his assistant. We agree with the determination of the court below that the action taken was not arbitrary or capricious, and that the decision to keep him there has been fully justified.⁴

Prison officials testified below that the fact that Abernathy is a Negro and professes belief in the Black Muslim faith was unrelated to his removal to "C" Building. In fact, it is undisputed that prisoners of both races comprised the group of four men who were moved to "C" Building with Abernathy and that the Corrections Director, who made the ultimate decision to transfer him, was totally unaware of his religion. Abernathy introduced no evidence which in any way substantiated his charge of racial or religious discrimination, and we find no reason to disagree with the district court's determination that this contention is unsupported by the evidence and thus without merit.

We turn now to Abernathy's claims that he is hindered by prison regulations in the free observance and pursuit of the teachings of his religion. Specifically, Abernathy seeks to have a pork-free meal served him at noon, the right to subscribe to and receive Muhammad Speaks, a Muslim newspaper, and the right to receive Message to the Blackman in America, a book by the Muslim leader, Elijah Muhammad.

Meals at the penitentiary are served cafeteria-style, and a prisoner may exercise unfettered choice in the selection of his meal from among the items served. The penitentiary has no regulation concerning what he must take or eat, insisting only that he eat all which he chooses to take from the serving counters. At the hearing below Abernathy testified briefly that the Muslim faith prohibits the eating of pork in any form and that the penitentiary consistently serves pork, or food cooked in grease or lard. According to him, such tainted food is served so frequently that he would suffer from malnutrition should he attempt to abstain from pork through a process of individual selection. Prison authorities, however, testified to the contrary, maintaining that adequate nourishment could be obtained from a prison meal consisting solely of foods cooked without pork chosen from among the variety offered. They admit such a meal would perhaps not contain everything one might desire, but they insisted that it would provide a balanced ration. The district court so found, choosing to credit the testimony of the officials. Under these circumstances, the court determined that the prison was not required to provide a special diet and we agree.

Abernathy's remaining contentions relate to his desire to be permitted to obtain a copy of Elijah Muhammad's book, "Message to the Blackman in America," and to subscribe to Muhammad Speaks, a newspaper published in Illinois, if not under Muhammad's direct supervision, at least under his auspices. The book contains an exposition of the doctrines and history of Islam with a lengthy discussion of Muhammad's views of separatism and the future of the races. Muhammad Speaks, while containing a great deal of nonreligious news matter, is, according to Abernathy, his only source material in the study of the teachings of his faith. Admittedly, if Abernathy were not in prison he clearly would have the...