McElyea v. Babbitt, No. 86-1845

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before FLETCHER, REINHARDT and KOZINSKI; PER CURIAM
• Citation: 833 F.2d 196
• Parties: Joe Lowell McELYEA, Jr., Plaintiff-Appellant, v. Governor Bruce BABBITT et al., Defendant-Appellee.
• Docket Number: No. 86-1845
• Decision Date: 10 June 1987

Page 196

833 F.2d 196 Joe Lowell McELYEA, Jr., Plaintiff-Appellant,
v.
Governor Bruce BABBITT et al., Defendant-Appellee. No. 86-1845. United States Court of Appeals,
Ninth Circuit. Submitted June 10, 1987. ^*
Decided Nov. 30, 1987.

J. Douglas McVay, Phoenix, Ariz., for plaintiff-appellant.

Kimberly A. O'Connor, Asst. U.S. Atty., Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Page 197

Before FLETCHER, REINHARDT and KOZINSKI, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Joe McElyea brought this action pro se under 42 U.S.C. Sec. 1983 alleging that prison authorities prevented him from practicing his religion in violation of the free exercise clause of the first amendment. The district court awarded summary judgment in favor of the defendants. We reverse and remand.

FACTS

Joe McElyea is incarcerated in the Arizona State Prison in Perryville, Arizona. This action for injunctive relief and monetary damages arises out of his claim that the defendants have denied him his right to practice his religion. Specifically, he asserts that (1) there were no weekly Jewish services conducted at the prison; (2) he was unreasonably denied permission to attend a special service on the High Holy Days; (3) he was unable to obtain a kosher diet; and (4) there were no Jewish religious writings available at the prison.

At the start of the proceedings, the district court entered an order finding that McElyea's complaint stated a claim and directed service be made on two of the defendants. The defendants moved for an extension of time to respond to the complaint. This motion was granted. McElyea filed a petition for addition of evidence, attaching a letter from a representative of the Jewish Prison Services deploring inadequate attention to the religious needs of Jewish prisoners.

Thereafter, the defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Included with this motion was an affidavit of Chaplain John Voth stating that (1) regular religious services were held upon request; (2) a prisoner needed to obtain special permission to attend a special service and that McElyea refused to comply with the procedures; (3) defendants were unable to verify that McElyea was Jewish because he had recently arrived at the prison; (4) a religious diet was available at the prison, but defendants had learned that while McElyea was incarcerated at a different prison, he had not maintained a kosher diet. McElyea filed a motion for additional time and a motion for appointment of counsel. These motions were never addressed by the district court. The court converted the defendants' motion into a motion for summary judgment and granted the motion on January 21, 1986. Judgment was entered and filed the following day. McElyea timely appeals.

DISCUSSION

McElyea asserts that the district court erred in considering the Voth affidavit and thereby converting, pursuant to Fed.R.Civ.P. 12(b), the defendants' motion to dismiss into a motion for summary judgment. This claim lacks merit. McElyea advances no reason why the Voth affidavit should have been excluded. Rather, his claims challenge the fairness of granting summary judgment in light of his difficulties in presenting evidence to the court. We consider these claims below.

The right to exercise religious practices and beliefs does not terminate at the prison door. O'Lone v. Shabazz, --- U.S. ----, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987); Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security. O'Lone, 107 S.Ct. at 2404. We determine whether these competing interests are balanced properly by applying a "reasonableness" test: " '[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.' " Id. (quoting Turner v. Safley, --- U.S. ----, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987)).

McElyea's complaint has been verified; because it is based on personal knowledge and sets forth specific facts admissible in evidence, it may be considered in opposition to summary judgment. Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th

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Cir.1985). ¹ McElyea also submitted a letter from Rick Ross, a representative of the Jewish Prison Services to Alex Machain, a Perryville Chaplain. Although this letter has not been authenticated, see Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982) (finding that Rule 56, as supplemented by the Local Rules, requires that documents be authenticated "by affidavits or declaration of persons with personal knowledge through whom they could be introduced at trial"), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983), it should be considered in McElyea's opposition to summary judgment because he was not made aware that the motion was being treated as one for summary judgment, placing on him the burden to file counteraffidavits. Garaux v. Pulley, 739 F.2d 437 (9th Cir.1984). The defendants submitted a four-page affidavit of Perryville Chaplain Voth. We consider each of McElyea's claims in turn.

McElyea has alleged that regular Sabbath services are not held at Perryville. The Ross letter refers generally to the "frequent failure [of Perryville authorities] to facilitate weekly observances". Ross adds specifically that inmates in the Santa Cruz unit "make the emphatic request"...