Sample v. Borg

• Decision Date: 16 December 1987
• Docket Number: No. CIV. S-85-0208 LKK.,CIV. S-85-0208 LKK.
• Citation: 675 F. Supp. 574
• Court: U.S. District Court — Eastern District of California
• Parties: Herbert N. SAMPLE, individually and on behalf of all persons similarly situated, and Ronald G. Rivera, individually, Plaintiffs, v. R.G. BORG, Warden of California State Prison at Folsom and the California State Prison at Sacramento and James Roland, as Director of the California State Department of Corrections, Defendants.

675 F. Supp. 574

Herbert N. SAMPLE, individually and on behalf of all persons similarly situated, and Ronald G. Rivera, individually, Plaintiffs, v. R.G. BORG, Warden of California State Prison at Folsom and the California State Prison at Sacramento and James Roland, as Director of the California State Department of Corrections, Defendants.

No. CIV. S-85-0208 LKK.

United States District Court, E.D. California.

December 14, 1987.

As Amended December 16, 1987.

Jay B. Petersen, Steven Hirsh, Michael S. Pfeffer, California Indian Legal Services, San Francisco, Cal., for plaintiffs.

John K. Van De Kamp, Atty. Gen. of the State of Cal., Cathy A. Neff, Supervising Deputy Atty. Gen., Sacramento, Cal., for defendants.

OPINION AND ORDER AFTER TRIAL

KARLTON, Chief Judge.

In this case the court is asked to determine whether the Constitution of the United States inhibits the power of the Warden of the California State Prison at Sacramento to determine that certain prisoners may not participate in any outward manifestation of their religious belief. More precisely, the suit relates to the limitations imposed upon adherents of traditional Native American religion incarcerated in the security housing unit of that prison. Plaintiff,¹ whose religious belief is undisputedly sincerely held, seeks first an opportunity to celebrate the pipe ceremony under the guidance of a spiritual leader,² and second, the right to possess, make and wear certain artifacts of his religious life, specifically a hairwrap or headband,³ tobacco ties,⁴ and a medicine bag.⁵

That the question of religious freedom in prison is raised in this case by a Native American simply compounds the lamentable character of cases of this nature, since it cannot be gainsaid that the destruction of American Indian culture and religious life was for many years a conscious policy of this nation. See, e.g., First Annual Report to the Congress of the United States from the National Advisory Council on Indian Education (March, 1974).⁶ Moreover, and independent of the special poignancy derived from the fact that this case is brought by Native Americans, it is a terrible comment upon our society that a serious question exists as to whether the security of a prison is compromised by permitting inmates to engage in legitimate religious practices.

I FACTS

A Security Housing Unit ("SHU") is a maximum security, minimum privilege, segregated prison housing unit. The SHU at California State Prison, Sacramento County, was opened October 1, 1986. It consists of four blocks, comprised of three sections each. Two sections contain 20 cells, and a third section contains 24 cells. Inmates are double-celled and, accordingly, each block has a capacity of 128 inmates. Staffing for each block consists of two gunmen (one who doubles as a control officer and one who is responsible for supervising the exercise yards), three floor officers (one for each section), and search and escort officers.

The SHU block includes two offices for floor staff, counselors and medical technician assistants. The offices are used for regular office duties, hearings, interviews, and examinations. There is an area in front of the cells which may be described as a "day room." At present, as a general matter, prisoners are not permitted in the day room area except to pass through it escorted by officers for one of the very limited purposes permitting departure from the cell.

Entrance to the cell is made through a solid metal door, which includes a long, narrow glass window running perpendicular to the floor. Because prisoners are fed in their cells, the doors also have a food port running horizontal to the floor, which is wide enough to admit a food tray.

The prisoner regimen in the SHU is extremely rigid. SHU inmates are under strict limitations as to the amount and kinds of personal property which they may possess and keep in their cells. By virtue thereof, Native American prisoners confined to the SHU may not wear or possess medicine bags, tobacco ties, hairwraps or headbands, all of which possess religious significance for practitioners of the Native American religion (see footnotes 3 through 5).⁷

At present, the population in the SHU stands at 494 prisoners. Although as a general matter the SHU contains some of the most violent and violence-prone inmates in California's prisons, inmates may also be incarcerated in the SHU in order to safeguard them from other prisoners, and for other institutional reasons.⁸

The average stay in the SHU is approximately nine months, but it is possible for an inmate to remain in the SHU for several years. The present plaintiff has been in the SHU for approximately one year. He is on an indeterminate sentence and, at least theoretically, may remain in the SHU until his parole date in 1990.⁹

As a general matter, SHU inmates may leave their cells only for showers, hearings within and outside the unit, exercise, court appearances, medical and dental examinations or treatment, and non-contact visits. Contact visits apparently can only be had with attorneys.

Although as noted above, most of the prisoners incarcerated in the SHU are violent, the authorities recognize the variation among prisoners for certain purposes. Thus, as an example, the named plaintiff in this case is a "five day floor tender." For that purpose, he is permitted to leave his cell and to remain on the tier to clean it.

SHU inmates may consult and counsel with staff clergy and approved volunteer clergy during cell visits conducted through the cell door. These visits may be accomplished weekly or more often upon request of the inmate. Inmates are never allowed to congregate in groups, with the sole exception of group exercise.¹⁰ SHU inmates may not participate in any religious ceremony. By virtue of this rule, Native American prisoners in the SHU may not participate in either the sweat lodge ceremony or the pipe ceremony available to general population practitioners. This policy has been in effect since the opening of the SHU.

The plaintiff in this case is a sincere practitioner of his religion, and seeks the right to celebrate various religious rites and possess various religious artifacts, all of which are deeply rooted in the Native American religious experience. Three themes are central to Native American religious life: purification, offering, and vision. The ceremonial manifestations of these three aspects of Native American religious life are of such a character that the deprivation of one (for whatever reason) makes more critical, from a spiritual standpoint, the need to participate in another. Thus, for Native Americans who are unable to participate in a sweat lodge ceremony (a purification rite) by virtue, for instance, of their physical impairment, participation in a pipe ceremony (an offering rite) becomes more important.

II CONSTITUTIONAL RIGHTS OF STATE PRISONERS

One might think that this case is disposed of simply by reading the plain words of the First Amendment to the Constitution of the United States ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"), which was made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). Indeed, the Supreme Court has recently acknowledged that "inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, ___ U.S. ___, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987) (citations omitted). Unfortunately, no such simple disposition is permitted. Rather, the Supreme Court has taught that such cases require "accommodation between institutional needs and objectives and the provisions of the constitution that are of general application." Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)). The Court has taught that while engaging in this mutual accommodation, allowance must be made for "the respect and deference that the United States Constitution allows for the judgment of prison administrators." O'Lone, 107 S.Ct. at 2405.¹¹

Even conceding a lack of specific textual support for deference to prison authorities, it is true that our Constitution is not only an "embodiment of our most precious values," but "a great document of practical governance." Potter v. Rain Brook Feed Company, Inc., 530 F.Supp. 569, 580 (E.D. Cal.1982). Accordingly, it is hardly surprising that constitutional doctrine recognizes that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Those "limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives—including deterrence of crime, rehabilitation of prisoners, and institutional security." O'Lone, 107 S.Ct. at 2404.

The tension between notions of retained and retracted prisoner rights must be resolved in some manner. The High Court's resolution requiring deference is premised, in substantial part, upon the assertion that "courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform." Turner v. Safley, ___ U.S. ___, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987) (quoting Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974)).¹² In this court's opinion, the doctrine of deference, as it has evolved, does not adequately serve First Amendment values. Nonetheless, whatever this court thinks of the doctrine, whether as a matter of faithfulness to constitutional text or fidelity to constitutional values, I am bound by...