Phelps v. Dunn
| Decision Date | 24 June 1991 |
| Docket Number | Civ. A. No. 87-389. |
| Citation | 770 F. Supp. 346 |
| Parties | Paul PHELPS, Plaintiff, v. Wayne DUNN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Douglas L. McSwain, Ogden Sturgill & Welch, Lexington, Ky., for plaintiff.
Barbara W. Jones, Corrections Cabinet, Office of General Counsel, Frankfort, Ky., for defendants.
This matter is currently before the Court upon the motion of the defendants, Wayne Dunn and Clark Edwards for summary judgment. Also before the Court is the plaintiff's motion for pre-trial conference and to set a trial date. The plaintiff, Paul Phelps, is an individual who, at the time of submitting his pro se civil rights complaint pursuant to 42 U.S.C. § 1983, was confined at the Northpoint Training Center (NTC) in Burgin, Kentucky. Consistent with local practice, this matter was referred to the United States Magistrate for initial consideration and, later, for further development of the record. Counsel was appointed to represent the plaintiff and discovery was taken. In response to the defendants' motion for summary judgment, the plaintiff has filed a response. The Magistrate filed a report and recommendation in which he recommended that the defendants' motion be sustained and this action be stricken from the docket. The plaintiff has filed objections to the Magistrate's report.
By plaintiff's complaint, amended complaint and most recent allegations of constitutional violations contained in his response to the pending motion,1 plaintiff asserts that he was denied his right to actively participate in religious services at the institution. He claims that his rights under the Free Exercise Clause of the First Amendment of the United States Constitution as well as the Establishment Clause have been violated. Not only has the plaintiff's religious expression been discriminated against unreasonably in violation of the Free Exercise Clause, but also his particular religious beliefs have been impermissibly considered by the defendants in their decision to curtail and deny plaintiff's right to equal participation in religious services, in violation of the Establishment Clause. The plaintiff also presents a claim under the Equal Protection Clause of the Fifth Amendment due to defendants' allowance of other inmates similarly situated to have greater rights of participation in religious services than he, and without any basis for this distinction that is rationally connected to a legitimate penological interest. Finally, the plaintiff claims a procedural due process violation under the Fourteenth Amendment based upon his contention that although he won his grievance in the internal prison grievance system about the religious expression over which he now sues, defendants effected a change in prison policy that undermined the plaintiff's favorable grievance result.
The facts can be summarized as follows. From 1985 through most of 1986, the plaintiff was permitted by the chaplain, Willie C. Polk, Jr., to actively participate in chapel services, which were held daily. Plaintiff sang in the choir, sang solos, read aloud from the Bible and shared his testimony of faith. The chaplain believed in equal participation for all, despite the plaintiff's professed homosexuality and despite other inmates' objections to the active participation of a practicing homosexual. In February 1986, the defendant Edwards, as volunteer chaplain, began to conduct services on Tuesday and Wednesday of each week. Defendant and the plaintiff disagreed upon the proper role for a gay Christian in services. Chaplain Edwards believed that active participation, by singing solos and giving testimony, etc., by a homosexual was inconsistent with his interpretation of the Bible. The plaintiff contends that the defendant refused to allow him to actively participate in services as other inmates were allowed to during and after August 1986, when Edwards filled in for Chaplain Polk while he was on vacation.2 Plaintiff alleges that defendant Dunn began to take sides with defendant Edwards. He states that at one point he was barred from chapel under threat of "lock-up" by Deputy Dunn.
Also in the record is testimony by sworn statements that during this time two discernable factions among the chapel attenders developed. Plaintiff belonged to, or possibly led, a group of practicing homosexual Christians, who were opposed by a group of anti-gay Christians. Tensions mounted throughout the fall of 1986.
Plaintiff filed an Inmate Grievance on December 5, 1986 because the defendant denied him participation in a service on December 2, 1986. On informal resolution on December 11, 1986, Deputy Dunn made the following initial decision:
All inmates are encouraged to attend any religious service, study or program. If Mr. Phelps wants to lead in a service by speaking, singing, et cetera, this is not acceptable because of his admitted homosexual activity. The other men attending the services support the position taken by the volunteer chaplain.
The Grievance Committee recommended that the plaintiff should not be allowed a "leadership role" if that was causing "disruption which is damaging the overall chapel program;" but that "if it is only a minority of two residents objecting to Mr. Phelps' leadership role, then he should be allowed full participation." On appeal to Warden Dewey Sowders, the warden modified the committee's recommendation, stating:
I do not agree with the philosophy that only certain inmates should be permitted roles in chapel activities. All inmates should be afforded the opportunity to participate in leadership roles regardless of sexual preference.
Warden's Decision of January 13, 1987. The plaintiff did not appeal this favorable decision.
The plaintiff asserts that despite the warden's decision, plaintiff was never allowed to participate in services or even enter the chapel. He further alleges that he was subjected to continuous harassment by write-ups following on the heels of the warden's decision. It is plaintiff's position that both defendants Edwards and Dunn failed to abide by and enforce the warden's grievance decision issued in January of 1987.
On May 1, 1987, NTC regulation 23-01-01, which was previously silent on the question of who should conduct religious services, was amended to provide that "inmates will not conduct religious services, i.e., preach, lead music, etc."
The Magistrate reached the following conclusions of law. First he considered sua sponte whether the defendants are "state actors" for section 1983 purposes. He found that the challenged action taken by defendant Edwards, a volunteer chaplain, was based upon religious doctrine, and not upon any state or prison regulation. Specifically, despite the agreement he had with NTC to conduct religious services, while performing his ministerial duties of interpreting and preaching the words of the Bible, he retained the essential attributes of a chaplain performing religious services in a non-prison setting. To this extent the defendant was acting independent of the state, and in view of the Establishment Clause of the First Amendment, the state must recognize this independence. Therefore, Edwards cannot be found to have been acting under color of state law. Defendant Dunn, however, was acting under color of state law in his position as deputy warden when he concurred with defendant Edwards' position.
Next the Magistrate considered the plaintiff's First Amendment claims that he was refused the right to attend religious services and the right to take a "leadership role" in the conducting of said services. The Magistrate found that the record clearly reflects that plaintiff was never denied the right to attend any services, nor was he denied the right to participate as a member of the congregation in any religious service. Furthermore, plaintiff's alleged right to assume a leadership role in the conducting of services by singing solos and praising Jesus Christ as an individual separate and apart from the congregation, was found not to be a protected constitutional right. The Magistrate recommended that the First Amendment claim be dismissed with prejudice.
The Magistrate recommended that the Equal Protection claim also be dismissed with prejudice. Recognizing the plaintiff's right under the Fourteenth Amendment to equal protection under the law, he found that there was no prison policy precluding inmates from taking a leadership role in the conducting of religious services, that the decision was left to the discretion of the chaplains. The Magistrate found that the record reasonably supported a conclusion that the plaintiff was being denied the opportunity to take a leadership role in conducting services, while others were being permitted to do so. Although defendant Edwards based his decision to restrict plaintiff's participation on religious grounds, the defendant Dunn relied on his concern for prison security.
The propriety of Dunn's actions are to be measured by whether they are reasonably related to a legitimate penological interest. O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). The Magistrate rejected the plaintiff's contention that the defendant's decision was based solely upon the fact that plaintiff was a homosexual. He reviewed the record of growing tension toward the plaintiff by other inmates for reasons of the plaintiff's homosexuality, as well as his monopolizing the allotted time for religious services by his songs and testimony. The Magistrate found that on December 2, 1986, defendant Edwards refused to let any inmate take a leadership role during the service because of his concern for security. Additional security officers attended that service because of rumors of trouble. Defendant Dunn decided to prohibit the plaintiff from taking a leadership role in the conducting of subsequent religious services....
To continue reading
Request your trial
-
Phelps v. Dunn
...Clause of the first amendment by denying him participation in prison religious services because he is a homosexual. The district court, 770 F.Supp. 346, granted summary judgment to defendants on the grounds that there were sufficient security concerns to justify their actions against the pr......
- US v. Ibarra, Crim. No. H-91-97.