Green v. White, 78-1891

• Decision Date: 19 September 1979
• Docket Number: No. 78-1891,78-1891
• Citation: 605 F.2d 376
• Parties: Clovis Carl GREEN, Jr., on Behalf of Himself and All Other Members of the Human Awareness Universal Life Church Incarcerated at the Missouri Training Center for Men at Moberly, Missouri, Plaintiffs, v. Carl WHITE, Superintendent, Missouri Training Center for Men, Moberly, Missouri, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 376

605 F.2d 376

Clovis Carl GREEN, Jr., on Behalf of Himself and All Other Members of the Human Awareness Universal Life Church Incarcerated at the Missouri Training Center for Men at Moberly, Missouri, Plaintiffs, v. Carl WHITE, Superintendent, Missouri Training Center for Men, Moberly, Missouri, Defendant.

No. 78-1891.

United States Court of Appeals Eighth Circuit.

Submitted July 2, 1979.

Decided July 13, 1979.

Rehearing and Rehearing En Banc Denied Sept. 19, 1979.

Clovis Carl Green, Jr., pro se.

John D. Ashcroft, Atty. Gen., and Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, Mo., filed brief for defendant.

Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

Plaintiff Clovis Carl Green brought this action Pro se on behalf of himself and all other members of the Human Awareness Universal Life Church incarcerated at the Missouri Training Center for Men at Moberly, Missouri. The action was predicated on 42 U.S.C. § 1983 (1976) and alleged that defendant White, Superintendent at Moberly, denied plaintiffs their right to exercise their religious beliefs. The following specific violations were alleged: church members were denied permission to conduct worship services, Bible study classes, and other religious activities, and were denied the right to wear long hair and beards, to engage in conjugal visits, to hold banquets on religious holidays and to distribute the church newspaper, Truth, to inmates. Green also claimed that plaintiffs' rights were violated by the refusal of the defendant to appoint Green as a full-time paid chaplain. The District Court, on its own motion, dismissed the complaint as frivolous and denied Green's motion for leave to appeal in forma pauperis.

Thereafter, in an amended and unpublished order, this Court granted Green leave to appeal in forma pauperis with respect to three issues only: (1) the alleged denial of his right to participate in church worship services and Bible study classes; (2) the alleged denial of his right to wear long hair and a beard as an incident of the exercise of his religion; and (3) the alleged denial of his right to distribute the religious literature of his church. Accordingly, only these issues are presently before the Court.

Because the complaint was dismissed as frivolous, the District Court did not rule on the issue of certification as a class action. We note, however, that Green is not a member of the class he seeks to represent. In his complaint, Green requested certification of a class of "all church members now at the Moberly prison." Green is now and was at the time this action was filed incarcerated at Missouri State Penitentiary in Jefferson City, Missouri. He was confined at Moberly only briefly between March 9, 1976, and April 15, 1976. Green cannot, therefore, maintain this action as a class action on behalf of inmate church members presently confined at Moberly.

Defendant White asserts that Green's individual claims are barred by res judicata. ¹ White contends that our decision in Green v. White, 589 F.2d 378 (8th Cir. 1979), precludes litigation of his present claims. In that case, the District Court entered a summary judgment ruling that Green's transfer back to Jefferson City in April, 1976, was clearly for reasons unrelated to his religious beliefs or practice. This Court affirmed. Green's present specific allegations were neither raised nor considered by either court in that case. Therefore, that decision does not preclude litigation of Green's present claims.

As noted in our prior order, similar claims of denial of religious freedom were also raised by Green in Green v. White, 545 F.2d 1099 (8th Cir. 1976). This Court remanded that case for an evidentiary hearing on Green's claims that defendant denied him his right to practice his religious beliefs. The case was, however, dismissed without prejudice after Green was denied leave to proceed in forma pauperis. It, therefore, does not bar Green's present claims.

The District Court properly ruled that certain of Green's claims were frivolous. However, the three claims on which Green was allowed to proceed on this appeal are not on their faces frivolous. It appears to the Court that Green has never had an opportunity to litigate these claims. We, therefore, remand to the District Court for an evidentiary hearing. The inquiry shall be strictly limited to whether defendant White, during the brief period in 1976 that Green was incarcerated at...