Ross v. Blackledge, 73-1314.

• Decision Date: 27 March 1973
• Docket Number: No. 73-1314.,73-1314.
• Citation: 477 F.2d 616
• Parties: Daniel ROSS et al., Appellants, v. Dr. Stanley BLACKLEDGE et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

477 F.2d 616 (1973)

Daniel ROSS et al., Appellants, v. Dr. Stanley BLACKLEDGE et al., Appellees.

No. 73-1314.

United States Court of Appeals, Fourth Circuit.

Submitted January 30, 1973.

Decided March 27, 1973.

Daniel Ross, pro se.

Jacob L. Safron, Asst. Atty. Gen., for appellees.

Before SOBELOFF, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.

SOBELOFF, Senior Circuit Judge:

Six North Carolina prisoners, who are members of the Islamic, a Black Muslim faith, seek injunctive relief pursuant to 42 U.S.C. §§ 1983 and 1985 to compel prison authorities to provide them with the pork-free diet required by the tenets of their religious faith. They allege that they cannot obtain a balanced diet by eating only non-pork items because of the frequency with which pork appears as the only meat on the prison menu and because most vegetables are cooked in or seasoned with pork. And, adducing the failure of prison officials to provide them with a "special diet on the same basis as the correctional prisoners who are on ulcer diet," the prisoners proffer an equal protection argument as an additional basis for the relief sought.

Initially, the District Court denied a motion to dismiss, directing instead that the State demonstrate that an adequate diet could be maintained by eating only non-pork items and that the State respond to the equal protection allegation. After the State's submission of a supplemental memorandum and supporting affidavits, the District Court granted a motion to dismiss without ever holding an evidentiary hearing.

In its Memorandum Opinion and Order, the District Court said that "the affidavits and menus clearly show that the plaintiffs can receive more than adequate nourishment from other foods and that the defendants are providing ample pork free meals and foods" (emphasis added). The court also found that the "record clearly shows" that a rational basis existed for providing a separate diet for prisoners with ulcers but not for Black Muslims. We conclude that the District Court erred in granting summary dismissal and therefore vacate its judgment and remand the case for an evidentiary hearing.

In Abernathy v. Cunningham, 393 F. 2d 775, 778 (4 Cir. 1968), this court held that where the District Court found after "an extensive evidentiary hearing" (p. 777) that Muslim prisoners could obtain a balanced ration while avoiding pork and food prepared with pork, the state was not required to provide a separate pork-free diet. Subsequently, in a case involving the attempt of Muslims to secure First Amendment rights, we held that the state may only restrict a prisoner's desire to practice religion "upon a convincing showing that paramount state interests so require. * * * The burden is not met merely by the filing of an answer which controverts the allegations of the complaint or which relies solely on our previous decision in Abernathy v. Cunningham, supra." Brown v. Peyton, 437 F.2d 1228, 1231 (4 Cir. 1971).

The value of a full evidentiary hearing is exemplified by Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969), which dealt with Black Muslim demands for at least one full-course, pork-free diet per day. The District Court initially dismissed the petitions without a hearing. The dismissal was vacated upon appeal, counsel appointed and an extensive evidentiary hearing held that enabled the District Court to develop a full and complete record. Only examination and cross-examination of witnesses brought out the prevalence of pork in the prison diet. See Abernathy v. Cunningham, supra, 393 F.2d at 780 (Craven, J., concurring and dissenting). Witnesses for the Muslims testified that pork was used to prepare such non-pork main dishes as hamburgers, meat loaf, chili con carne, and gravies served on non-pork meats. While prison authorities contested this testimony, they admitted that pork was present in macaroni and cheese, hot dogs, cold cuts and luncheon meats. The chief steward also admitted that pork was used to season about half of the green vegetables served and many side dishes. Barnett v. Rodgers, supra, 410 F.2d at 998. Nonetheless, the District Court once again dismissed the suit, apparently on the theory that a balanced diet was provided to prisoners generally and if a particular inmate wished to practice his religion, he could refrain from eating those things he found objectionable. The issue of whether an inadequate diet would result from this exercise of "freedom" was not faced.

The Court of Appeals for the District of Columbia Circuit ruled that the District Court had erred in its dismissal of petitioners' complaints, reasoning that the request for one full-course, pork-free diet daily was "essentially a plea for a modest degree of official deference to their religious obligation." The onus was to be placed upon the state to demonstrate that the impediments placed in the way of appellants' observance of their dietary creed had compelling justification, such as budgetary constraints or administrative difficulties. The District Court was also to inquire into whether governmental purposes responsible for the impediments could be feasibly "pursued by means that less...