Desmond v. Blackwell, 551.

• Decision Date: 23 October 1964
• Docket Number: No. 551.,551.
• Parties: George 3 X. C. DESMOND, Petitioner, v. Olin G. BLACKWELL, Warden, United States Penitentiary, Lewisburg, Pennsylvania, Respondent.
• Court: U.S. District Court — Middle District of Pennsylvania

235 F. Supp. 246

George 3 X. C. DESMOND, Petitioner, v. Olin G. BLACKWELL, Warden, United States Penitentiary, Lewisburg, Pennsylvania, Respondent.

No. 551.

United States District Court M. D. Pennsylvania.

October 23, 1964.

John P. Campana, Williamsport, Pa., for petitioner.

Bernard J. Brown, U. S. Atty., Scranton, Pa., Harry A. Nagle, Asst. U. S. Atty., Lewisburg, Pa., Clair Kripe, Attorney, Department of Justice, Bureau of Prisons, Washington, D. C., for respondent.

FOLLMER, District Judge.

Petitioner, a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, instituted, in forma pauperis, an action designated in habeas corpus. At the hearing had thereon, it was agreed by all parties that the petition should be considered as a civil action for deprivation of rights under 42 U.S.C. § 1983.

Petitioner is a member of a group which call themselves "Muslims", at the head of which there is an individual who calls himself "Muhammad" (referred to during the hearing as a messenger of Allah). Whether it is properly within the term "religion" is a controverted issue. It has been aptly described by the Second Circuit in Piercé v. LaVallee, 319 F.2d 844 (1963), as "the `Muslim Brotherhood' — a self-organized and self-styled group having as its avowed object the study and furtherance of Islam, but which also had overtones of secrecy and intrigue",¹ and the Seventh Circuit in Cooper v. Pate, 324 F.2d 165, 166 (1963) refers to "certain social studies which show that the Black Muslim Movement, despite its pretext of a religious facade, is an organization that, outside of prison walls, has for its object the overthrow of the white race, and inside prison walls, has an impressive history of inciting riots and violence." For the purposes of this case, however, Respondent took the position that he was willing to assume that the Nation of Islam, to which the Petitioner adheres, is a religion (Transcript of Hearing, Page 66). In the present proceeding, moreover, no purpose would be served by attempting to decide this issue since considered in the light most favorable to Petitioner, his cause of action cannot be sustained.

Petitioner summarized the issues raised in his petition as the right to ministry by a person of his own faith, subject to the approval of the prison officials; the right to receive religious teachings from Mr. Elijah Muhammad, which includes "Muhammad Speaks" and the "Salaam" magazine; and the right to correspond with Mr. Muhammad himself (Transcript of Hearing, Pages 37 and 39).

The credible testimony here fully justifies the conclusion that the Director of the Bureau of Prisons, in his overall supervision, and the officials in charge of this penitentiary, have exercised admirable restraint in dealing with a most difficult situation consistent with maintaining the necessary discipline, orderly administration and safety as well as the general welfare of a large prison population.

It has been fully recognized that as was stated in In re Ferguson et al., 55 Cal.2d 663, 12 Cal.Rptr. 753, 758, 361 P. 2d 417, 422 (1961), cert. den. Ferguson v. Heinze, 368 U.S. 864, 82 S.Ct. 111, 7 L.Ed.2d 61, "Even as prisoners, petitioners have the absolute right to possess their Muslim beliefs. * * * Nor may petitioners be punished for holding their Muslim beliefs." With this I find that there has been full compliance by the prison authorities.

On the other hand, as far as action or conduct is concerned, it should be recognized that prison officials must be vested with the necessary discretion in conducting a proper penitentiary and as incident thereto, in safeguarding the prisoners committed to their custody, the prison personnel and the general public. In Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948), the Supreme Court recognized that "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." As stated by Judge Brennan in Piercé v. LaVallee, D.C.N.D.N.Y., 212 F.Supp. 865, 869 (1962),

"In our zeal for the protection of freedom of religious belief and practice, the particular circumstances involved may not be overlooked. A large prison population is committed to the custody of a minority of prison employees and authorities. Discipline is necessary for the protection of both the inmates and the public. Prison discipline may on occasions impinge upon fundamental rights. That a public officer has or will violate the constitutional safeguards of the freedom of religion, in this court's opinion must be established by convincing evidence. Such a charge is easy to make in an unverified complaint but the charging party must support it by more than inference or conjecture."

At their so-called "religious meetings" although the words "Brotherly Love" were written on the blackboard, they were actually meetings devoted to the doctrine of "hate". There were open references to those supervising the meetings as "monsters of inferior intelligence" and there were discussions and references to Armagedon in 1970 when the White race would be exterminated. When they were permitted to meet in the Chapel, half of the meeting was devoted to ridicule and disparaging remarks concerning the Christian and Jewish faiths, and all the things in the Chapel "including what the Catholics call the Stations of the Church (sic) that lined both walls and the altar".² They were subsequently assigned a meeting room and a regular time for meeting was designated. At these meetings there were references to the white man as "devil" and "skunk". Although the supervision of the meetings of the various religious groups consisted of spot checks, it became necessary because of the manner in which the Muslim meetings were conducted to assign institutional employees for continuous supervision, thus depleting the available force for other duties. When the meetings were supervised the attendance declined until on February 1, 1963 five attended and although the time and place of a weekly meeting has been routinely announced in the same manner as for other groups, no one has attended. At their meetings certain members constituted a guard known as the...