Johnson-Bey v. Lane

• Decision Date: 05 December 1988
• Docket Number: 86-2581 and 86-3052,J,Nos. 86-2205,JOHNSON-BE,s. 86-2205
• Citation: 863 F.2d 1308
• Parties: Ronnieohn Lee Lipscomb-Bey, and Reginald Morgan-Bey, Plaintiffs-Appellants, Cross-Appellees, v. Michael P. LANE, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1308

863 F.2d 1308

Ronnie JOHNSON-BEY, John Lee Lipscomb-Bey, and Reginald Morgan-Bey, Plaintiffs-Appellants, Cross-Appellees, v. Michael P. LANE, et al., Defendants-Appellees, Cross-Appellants.

Nos. 86-2205, 86-2581 and 86-3052.

United States Court of Appeals Seventh Circuit.

Argued Sept. 19, 1988.

Decided Dec. 5, 1988.

Patrick O'Hara, Blane & O'Hara, Petersburg, Ill., for plaintiffs-appellants, cross-appellees.

William D. Frazier, Office of Illinois Atty. Gen., Chicago, Ill., for defendants-appellees, cross-appellants.

Before POSNER, RIPPLE and KANNE, Circuit Judges.

POSNER, Circuit Judge.

The appeal and cross-appeal in this prisoners' civil rights case under 42 U.S.C Sec. 1983 present issues of religious freedom. The plaintiffs, three inmates at the Illinois state prison at Menard, belong to the black Islamic sect known as the Moorish Science Temple of America. That it is a bona fide religion is not questioned, although three-fourths of its temples (congregations) are inside prisons. The Moors, as adherents to the Moorish Science Temple are called, have their own version of the Koran and a list of prophets that includes, in addition to the prophets recognized by orthodox Islam, Buddha, Confucius, and the founder (in 1913) of the Moorish Science Temple, Prophet Noble Drew Ali. The Moorish religious observances include the wearing of the fez. Two groups vie for leadership of the sect: one in Mt. Clemens, Michigan, headed by Grand Sheik/Moderator Brother R. Love-El, and one in St. Louis headed by Grand Sheik Jerry Lewis-Bey. (The suffixes "El" and "Bey" refer to the African tribes from which the Moors believe black people are descended.) The plaintiffs now concede that only the Mt. Clemens group is legitimate. The sinister El Rukn group is a breakaway faction from the Moorish Science Temple, see Faheem-El v. Lane, 657 F.Supp. 638, 642 (C.D.Ill.1986); apparently it no longer has any connection with the Moorish Science Temple.

Menard prison has two full-time chaplains on its payroll, one Protestant and the other Catholic. We were told at argument that since the trial in this case the prison has added a part-time Islamic chaplain, but he is not a Moor. Prisoners of other faiths (the occasional Jew or Buddhist) are served by clergy of their faith who visit the prison. Since 1979, the Moors at Menard have been trying without success to arrange for religious services in the Moorish faith. At first their efforts focused on persuading the prison to allow ministers from the St. Louis group to conduct services at the prison, but the prison officials vetoed this on the ground that the St. Louis clergy include convicted criminals and are dangerous. Later the Moors invoked paragraph II F of Administrative Regulation 839 of the state's Department of Corrections: "Where religious groups are without the services of a clergyman, they may submit a request to the chaplain for approval of resident-conducted religious activities under the supervision of a staff member." The Moors submitted a request, but it was turned down on security grounds. However, the prison's chaplains looked for Moorish ministers among the Mt. Clemens group, and in 1986 identified two suitable candidates for conducting Moorish services at Menard on a visiting basis. The two ministers were already conducting services on a visiting basis at the federal prison at Marion, Illinois, and they agreed to visit Menard as well, asking only for a small amount of money to defray their expenses. However, it is the prison's unwritten policy to require from any religious organization proposing to supply clergy a statement specifying the time, place and nature of the services to be conducted and identifying the clergy who will conduct them--and no such statement was submitted here. The requirement of a "free-world sponsor," upheld in Tisdale v. Dobbs, 807 F.2d 734, 738 (8th Cir.1986), is not questioned by these plaintiffs. Nor do they question the prison's right to insist that the "free-world sponsor" submit a statement describing the proposed program of religious activities in the prison, a requirement upheld in Childs v. Duckworth, 705 F.2d 915, 921 (7th Cir.1983).

This suit was originally filed in 1981, named as defendants the relevant prison officials, and came on for a bench trial before a federal magistrate in 1986 pursuant to an agreement by the parties that the magistrate could conduct the trial and enter a final judgment appealable to this court. See 28 U.S.C. Sec. 636(c). After the trial, the magistrate issued a declaratory judgment. Believing that the security concerns that had been the ostensible reason for turning down the Moors' request for permission to conduct their own services were spurious, he ruled that the Moors had to be allowed to conduct their own services, although only until the defendants arranged for the two ministers from the Mt. Clemens group to provide "contractual religious services for the members of the Moorish Science Temple of America at Menard." If necessary, the defendants were to pay the ministers "in accordance with an hourly rate comparable to that paid to the chaplains of the Catholic and Protestant faiths." But because the plaintiffs had not filed a proper program statement, the magistrate rejected their claim for damages. Both sides appeal.

We have found it difficult to obtain a clear idea from the record, the magistrate's opinion, and the briefs and argument of the parties of what the dispute in this lawsuit is about. The case was not tried well by either side, the magistrate's opinion is confusing and incomplete, the appeal briefs are unclear, and, most important, relevant circumstances have changed greatly in the inexplicably long interval between the filing of the original complaint and the argument of the appeals. The defendants question neither the legitimacy of the Mt. Clemens branch of the Moorish Science Temple hierarchy nor the propriety of having ministers from that branch visit Menard to conduct services for the 30 or so Moorish inmates, while the plaintiffs question neither the requirement for filing a program statement describing the desired religious activities nor the prison's right to veto on security grounds any minister they propose, and they also do not insist that the prison employ a full-time or even a part-time Moorish chaplain. Moreover, it seems the plaintiffs desire religious services conducted by inmates only as a second-best alternative to services conducted by the ministers from the Mt. Clemens branch. Although there are potential issues concerning the frequency of these visits and whether the prison will defray any of the expenses incurred by the Moorish Science Temple in connection with them, those issues are not ripe for decision. The magistrate did not discuss them, except for his gratuitous reference to paying the Moorish ministers an hourly wage comparable to that of the prison's chaplains--gratuitous because no one had requested that the Moorish ministers be paid for their time, as distinct from being reimbursed for their expenses, and because there is no evidence on these issues except the ministers' request for reimbursement of expenses.

If we had the unlimited equitable discretion possessed by the Lord Chancellor of England in early medieval times, we would suspend the lawsuit and ask the parties to report back to us in six months concerning their progress in working out mutually acceptable arrangements to secure the Moorish inmates' religious rights without compromising the prison's security. There seems little doubt that such arrangements are feasible and indeed they may already be well in train. As we do not have so capacious a discretion, we shall plod through the appeals.

Rejecting the old "hands off" approach to problems of prison administration, the courts of late have held that prison inmates retain a number of constitutional rights, including the right to the free exercise of their religion--but in distinctly truncated form: the prison is entitled to curtail these rights to the extent necessary to protect security. See, e.g., Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir.1988); Mumin v. Phelps, 857 F.2d 1055 (5th Cir.1988); Standing Deer v. Carlson, 831 F.2d 1525, 1528-29 (9th Cir.1987); Allen v. Toombs, 827 F.2d 563, 567 (9th Cir.1987). The "free" exercise of religion thus is rather a misnomer in the prison setting. No one thinks that a prison is required to excuse inmates to attend religious services outside of the prison. It need not yield to their desire to invite convicted felons, frocked or unfrocked, to conduct religious services in the prison. It need not employ chaplains representing every faith with at least one adherent among the prison population. Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079, 1081 n. 2, 31 L.Ed.2d 263 (1972) (per curiam); Allen v. Toombs, supra, 827 F.2d at 568-69; cf. Kahey v. Jones, 836 F.2d 948 (5th Cir.1988). It need not--as we held in Hadi v. Horn, 830 F.2d 779 (7th Cir.1987)--allow inmates to conduct their own religious services, a practice that might not only foment conspiracies but also create (though more likely merely recognize) a leadership hierarchy among the prisoners. To the same effect see Cooper v Tard, 855 F.2d 125 (3d Cir.1988); cf. Tisdale v. Dobbs, supra, 807 F.2d at 738.

On the other hand the prison may not, because it is contemptuous or unreasoningly fearful of a particular sect, place arbitrary obstacles in the way of inmates seeking to participate in the sect's...