Jaben v. Moore

• Decision Date: 18 March 1992
• Docket Number: No. 88-3230-S.,88-3230-S.
• Parties: Allan F. JABEN, Plaintiff, v. Richard MOORE and Roger Endell, Defendants.
• Court: U.S. District Court — District of Kansas

788 F. Supp. 500

Allan F. JABEN, Plaintiff, v. Richard MOORE and Roger Endell, Defendants.

No. 88-3230-S.

United States District Court, D. Kansas.

March 18, 1992.

Allan F. Jaben, pro se.

Bryona J. Kincanon, Asst. Atty. Gen., Jefferson City, Mo., for Richard Moore.

Carol B. Bonebrake, Asst. Atty. Gen., Topeka, Kan., for Roger Endell.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. In 1978, plaintiff was convicted in Johnson County, Kansas, on charges of aggravated battery, attempted rape, rape, aggravated sodomy, and aggravated kidnapping, and is serving a controlling sentence of life imprisonment. In August 1984, plaintiff was transferred to the Missouri Department of Corrections pursuant to the Interstate Corrections Compact after an investigation of his involvement in an inmate work stoppage. In this action, plaintiff claims his constitutional rights have been violated as a result of the conditions of his confinement in Missouri. Plaintiff specifically claims (1) he has been deprived of access to Jewish religious services, (2) he has been deprived of access to Kansas legal materials, resulting in a denial of access to the courts, (3) his Missouri custody classification as a medium high security inmate is higher than his classification while incarcerated in Kansas and has deprived him of equal protection, (4) he will not be present at his initial parole hearing, (5) Missouri rehabilitation programs are not designed to facilitate a grant of parole, (6) he has been unable to seek reduction of his sentence, and (7) he has been deprived of family visitation as a result of his transfer.

Having reviewed the record in this matter, the court makes the following findings and order.

Discussion

Access to religious services

Plaintiff complains he was unable to participate in Jewish religious services upon his transfer to the Missouri Department of Corrections.

Correctional officers have a constitutional obligation only to provide inmates with an opportunity to exercise their religious freedom. In enunciating the appropriate standard, the United States Supreme Court was careful to note that correctional facilities need not provide identical opportunities for worship to all inmates:

We do not suggest, of course, that every religious sect or group within a prison — however few in number — must have identical facilities or personnel. A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regard to the extent of the demand. But reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty.

Cruz v. Beto, 405 U.S. 319, 322, n. 2, 92 S.Ct. 1079, 1081, n. 2, 31 L.Ed.2d 263 (1972).

In considering similar claims by Jewish inmates, at least two courts have found constitutionally adequate provision for religious observance where facilities are available and clergy and lay leaders are permitted access to the facility. In Garza v. Miller, 688 F.2d 480 (7th Cir.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983), the court found that in light of the small number of Jewish inmates in the federal penitentiary at Marion, Illinois, and the high security level of that institution, it was permissible to provide a rabbi, services, and other programs only upon request. Further, in Glasshofer v. Thornburgh, 514 F.Supp. 1242 (E.D.Pa. 1981), aff'd, 688 F.2d 821 (3d Cir.1982), the court granted summary judgment to corrections officials, finding no infringement where Jewish inmates had no exclusive area for worship and were served by visiting clergy. In reaching this conclusion, the Glasshofer court noted, "The Constitution does not require that each religious group be treated identically; good faith accommodation in light of practical considerations is all that is required." Id. at 1246, citing Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir.1970).

A review of the record in this case demonstrates plaintiff was afforded the opportunity to practice his faith. Jaben was transferred in August 1988 to the Missouri Training Center for Men in Moberly, Missouri ("MTCM"). It is uncontested that very few inmates of the Jewish faith were housed in that facility at the time.

Plaintiff filed a grievance in November 1988 regarding the availability of Jewish services and was advised the All Faith Chapel was available to him. There is also evidence in the record that a rabbi conducted a ministerial visit at the request of another inmate in early December 1988.

The record demonstrates that at the time in question, the MTCM housed only three to four Jewish inmates. A rabbi was available upon request, and a chapel was also available. These opportunities, although limited, persuade the court that plaintiff had a constitutionally adequate accommodation for his religious needs. Plaintiff is not entitled to relief on this claim.

Access to the courts

Plaintiff next asserts he was not provided adequate access to Kansas legal materials, resulting in a denial of access to the courts.

It is, of course, well-established that inmates enjoy a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). The protection of this right obligates corrections officials to assure prisoners effective access to the courts by providing either adequate law libraries or the assistance of trained personnel in preparing and filing meaningful legal papers. Id. at 830, 97 S.Ct. at 1499. Where an inmate alleges he has been denied access to the courts, the burden is on corrections officials to show the inmate has received adequate access to legal research or assistance. Id. at 824, 97 S.Ct. at 1496.

In Bounds, the Supreme Court stated the inquiry of constitutional adequacy in this context requires an examination of a plan for access as a whole, id. at 832, 97 S.Ct. at 1500, and this court recognizes this "determination is fact-sensitive and for the district court to make in the first instance after evaluating the extent of personnel and facilities available." Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir.1981).

It is uncontested that Jaben requested Kansas legal materials as early as June 15, 1988. (Martinez report, Ex. 2). This request sought all reports of the state appellate courts from 1972 on; state statutes and revisions from 1972 on; Kansas Shepard's Citations, a treatise covering state criminal practice and procedure and all revisions from 1972, and the Kansas state court rules. This request was forwarded to Kansas authorities by correspondence dated June 23, 1988, (Martinez report, Ex. 7). In a reply dated July 14, 1988, plaintiff received the following response:

Please be advised that I have discussed your request with Mr. Linden Appel, Legal Counsel, Kansas State Penitentiary. It was the opinion of Mr. Appel, and I agree, that your request cannot be met in its entirety at this time. You are requesting several volumes of legal material, much of which would be irrelevant to your needs. Mr. Appel has, however, agreed to provide you with photo copied material of relevant statutes, etc. that pertain to your immediate need. To obtain this material, I suggest that you write Mr. Appel and explain to him specifically what your needs are. You may write to Mr. Appel at....

(Martinez report, Ex. 8). Jaben did not contact Appel in response to this offer, nor is there any record that he contacted the librarian at the Kansas State Penitentiary to request legal materials. Further, there is no record that plaintiff sought either representation or legal materials from Legal Services for Prisoners, Inc., a non-profit corporation providing legal assistance to Kansas state prisoners and having an office in the Kansas State Penitentiary. (Martinez report, Exs. 9-11).

Viewing the record in the light most favorable to plaintiff, the court finds he has failed to establish a claim for relief. Plaintiff does not dispute his failure to seek further assistance from Appel, and the court finds the response to plaintiff's request was a reasonable effort to clarify a request which was virtually a request for a personal library.

It is at best difficult on this record to evaluate the sufficiency of Kansas officials' proposal to permit plaintiff access to Kansas legal materials, and the court therefore expressly limits its finding on this issue to the situation presented here. The court holds only that where Kansas officials make a good faith offer to provide state legal materials where the inmate's need has been reasonably described and the inmate completely fails to respond, no claim of denial of access to the courts by the inmate is stated. Given the circumstances of this case, the court concludes plaintiff was not deprived of a right of access to the courts by Kansas authorities.

Missouri custody classification

Plaintiff next contends the transfer resulted in a denial of equal protection. In support, plaintiff states he was classified as medium custody by Kansas authorities prior to his segregation. Upon his transfer, plaintiff was classified under Missouri guidelines as high medium security. Missouri authorities reported this determination to Kansas authorities, and Kansas officials had no objection (Martinez report, Exs. 18-20).

After considering plaintiff's claim, the court must reject his argument. The court does not interpret the Interstate Corrections Compact to require the application of Kansas custody guidelines. First, the Compact, as codified in the Kansas Statutes...