Butler-Bey v. Frey, BUTLER-BE

• Decision Date: 10 February 1987
• Docket Number: BUTLER-BE,No. 86-1200,J,86-1200
• Citation: 811 F.2d 449
• Parties: Nathanielohnnie Williams-Bey, and David Head-El, Appellants, v. Gerald T. FREY, Donald Cabanna, Micki Andrews, Michael Bowersox, John B. Kemp, David Miller and Ronald Kennedy, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 449

811 F.2d 449

Nathaniel BUTLER-BEY, Johnnie Williams-Bey, and David Head-El, Appellants, v. Gerald T. FREY, Donald Cabanna, Micki Andrews, Michael Bowersox, John B. Kemp, David Miller and Ronald Kennedy, Appellees.

No. 86-1200.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1986.

Decided Feb. 10, 1987.

Alan D. Pratzel, St. Louis, Mo., for appellants.

Paul LaRose, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before JOHN R. GIBSON, FAGG, and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Nathaniel Butler-Bey, Johnnie Williams-Bey, and David Head-El, members of the Moorish Science Temple of America, appeal from the trial court's ¹ judgment against them on their 42 U.S.C. Sec. 1983 (1982) claim that officials of the Missouri Eastern Correctional Center ² denied them the right to free exercise of their religion and to the equal protection of the laws by refusing to permit them to wear fezes, by denying them access to the prison chapel for religious services, and by denying them access to prison funds for the purchase of religious materials. The trial court held that the practices and regulations complained of were not discriminatory and did not violate the plaintiffs' constitutional rights. The court found that these regulations were based on legitimate institutional security considerations. On appeal, the plaintiffs argue that the trial court erred in ignoring the plaintiffs' testimony and in giving "undue weight" to the prison officials' testimony. We affirm.

The plaintiffs essentially attack the magistrate's evaluation of the evidence. Our review of the magistrate's findings in this non-jury case is governed by the clearly erroneous standard, Fed.R.Civ.P. 52(a); see Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), and we are not free to reweigh the evidence presented to the trier-of-fact. Our review of the magistrate's ultimate conclusions--whether the facts as found support or undermine the constitutionality of a given practice or regulation--is plenary. Hill v. Blackwell, 774 F.2d 338, 343 (8th Cir.1985).

We turn our attention first to the legal standard employed by the trial court. The trial court's opinion quotes from and relies on our opinion in Hill v. Blackwell, supra, 774 F.2d at 338. In Hill, we stated that the burden is on the prisoner challenging the regulation or practice to show that it infringes upon a sincerely held religious belief. ³ Id. at 342-43. The responsible prison officials, on the other hand, need only show that the religious practice "could create a potential threat to a legitimate penological objective." Id. at 343. If this showing is made, the trial court must defer to the prison officials' expertise in matters of prison administration unless there is substantial evidence that the officials' belief that the regulation is necessary is unreasonable or that their response to the penological objective is exaggerated. If the prisoner has not shown that the officials' belief is unreasonable or their response is exaggerated, "the prisoner's right must yield to the prison regulation." Id.; see also Little v. Norris, 787 F.2d 1241, 1244 (8th Cir.1986); Gregory v. Auger, 768 F.2d 287, 290-91 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 601, 88 L.Ed.2d 580 (1985); Otey v. Best, 680 F.2d 1231, 1233 (8th Cir.1982). The trial court's conclusions of law carefully adhere to the analytical framework developed for prisoner first amendment claims in the opinions of this court and set forth by us in Hill.

The plaintiffs challenge four specific regulations or practices of the prison officials. The first is a prohibition against the wearing of headgear in the prison visiting room, dining room, chapel, school, and administration building. The plaintiffs wear fezes. The parties agree that the wearing of fezes has religious significance for members of the Moorish Science Temple. The regulation thus infringes upon the plaintiffs' religious practice. The trial court found as a factual matter that this regulation was prompted by concern that headgear may be used to conceal drugs, weapons, and other contraband. The trial court further found that this explanation was "eminently reasonable," and not an exaggerated response to an otherwise valid security concern.

The magistrate's factual finding is amply supported by the record. The prison officials testified that smuggling contraband is a problem at the Missouri Eastern Correctional Center and that headgear can be used for that purpose. There was also testimony that members of the Moorish Science Temple, including one of the plaintiffs, were involved in smuggling contraband. The plaintiffs point to the fact that no member of the Moorish Science Temple has been discovered carrying contraband in a fez, and contend that other security procedures at the prison, such as strip searches given inmates after leaving the visiting rooms, support the conclusion that this regulation is an exaggerated response to the security concern. However, prison officials need only show that the regulated practice creates a potential threat to institutional security. Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977). This standard, we conclude, has been met. The trial court properly deferred to the administrative expertise of the prison officials. See Rogers v. Scurr, 676 F.2d 1211, 1215-16 (8th Cir.1982) (no constitutional right of Muslim prisoners violated by prohibition of wearing prayer caps and robes outside religious services).

The plaintiffs' second allegation is that the Moorish Science Temple was not allowed to hold religious services or otherwise meet in the prison chapel. ⁴ The plaintiffs also assert that this action was discriminatory in that other religious groups were permitted to meet in the chapel. Finally, the plaintiffs contend the prison's alternative meeting arrangements were unsatisfactory because the Moorish Science Temple members were required to provide a correctional officer to monitor the meetings and to submit weekly membership lists and minutes to prison officials. The trial court found that the Moorish Science Temple has had access to facilities within the prison comparable to the chapel, and that members have been meeting regularly on Fridays, Saturdays, and Sundays. The trial court concluded that there was no constitutional violation or discrimination concerning plaintiffs' access to the chapel.

The testimony of the prison officials and of the plaintiffs is conflicting as to whether the chapel was made available to members of the Moorish Science Temple. The prison officials testified that members were offered the chapel for their services and they turned it down. The trial court found that the plaintiffs have always had access to prison facilities comparable to the chapel for their religious and secular meetings, and sufficient record evidence exists to support that finding. The prison is obligated to afford a "reasonable opportunit[y]," Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079, 1081 n. 2, 31 L.Ed.2d 263 (1972), for the plaintiffs to exercise the religious freedom guaranteed to them by the first and fourteenth amendments. The members of the Moorish Science Temple do not contend that they cannot hold services in the facilities provided by the prison. Thus, the plaintiffs have shown us no reason why the trial court's determination that a reasonable opportunity to worship has been provided the Moorish Science Temple should be disturbed.

Turning our attention to the requirements that a guard be present at their meetings, and that written minutes of meetings and membership lists be provided to the prison administration, we believe that this issue is governed by our recent decision in Tisdale v. Dobbs, 807 F.2d 734 (8th Cir.1986). In Tisdale, we considered a regulation that prohibited inmates from holding religious services unless a free-world sponsor was present and in charge. Id. at 736. We affirmed the trial court's conclusion that the regulation was prompted by a reasonable, legitimate concern for institutional security, and not an exaggerated response to the penological objective. Id. at 738. In reaching our conclusion, we recognized that unsupervised group religious services and prayer meetings can become forums for inmate dissension and unrest. Id.; see Little, 787 F.2d at 1244 (approving temporary suspension of group religious meeting privileges during period of prison unrest); Otey, 680 F.2d at 1234 (approving regulation prohibiting attendance of death row inmates at group religious services).

The regulation we now consider is less burdensome than the one we approved in Tisdale. A guard need only be present; the plaintiffs need not find a free-world sponsor to preside over their religious services. Nor have the plaintiffs shown that the prison officials' belief in the necessity for this requirement, or for the membership lists and written minutes, is unreasonable or an exaggerated response to their security concerns. We affirm the magistrate's conclusion that these regulations do not discriminate ⁵ against the plaintiffs or violate their first amendment rights.

The plaintiffs' third allegation is that the prison officials refused to provide them with an organizational account or with adequate prison funds to purchase religious materials. The trial court found that the Moorish Science Temple did not have an organizational account but received as much money from the prison as...