Theriault v. Carlson

• Decision Date: 22 January 1973
• Docket Number: Civ. A. No. 13872.
• Parties: Dr. Harry W. THERIAULT, Bishop, Church of the New Song of Universal Life, and Rector, The Fountainhead Seminary, and Rev. Jerry Mack Dorrough, Vice-Rector, The Fountainhead Seminary, and Minister, Church of the New Song of Universal Life, et al. v. Norman A. CARLSON, Director, Bureau of Prisons, et al.
• Court: U.S. District Court — Northern District of Georgia

353 F. Supp. 1061

Dr. Harry W. THERIAULT, Bishop, Church of the New Song of Universal Life, and Rector, The Fountainhead Seminary, and Rev. Jerry Mack Dorrough, Vice-Rector, The Fountainhead Seminary, and Minister, Church of the New Song of Universal Life, et al. v. Norman A. CARLSON, Director, Bureau of Prisons, et al.

Civ. A. No. 13872.

United States District Court, N. D. Georgia, Atlanta Division,

January 22, 1973.

Harry W. Theriault, pro se.

Jerry Mack Dorrough, pro se.

Glenn Zell, Atlanta, Ga., Juan Manuel Ramirez, El Paso, Tex., for plaintiffs.

John W. Stokes, U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for defendants.

ORDER

EDENFIELD, District Judge.

While incarcerated in the United States Penitentiary at Atlanta, Harry W. Theriault, a convicted thief and self-proclaimed escape artist, claims to have started a new faith or church known as the "Church of the New Song".¹ Declaring as its source certain obscure passages from the Book of Revelations in the New Testament Bible, the Church of the New Song concerns itself with a supreme spirit known as "Eclat" and espouses, in general, a doctrine of brotherhood and love. When he was thwarted in his attempts to arrange communal services for his church, Theriault filed a Rule 23(b)(2)-type class action in this court seeking, among other things, equal religious rights for the members of the Church of the New Song. The original petition was co-signed by 165 inmates at the Atlanta federal penitentiary. In due course extensive hearings were held in this court.

The evidence at the hearings revealed that Theriault's idea for a new religion began as a game or joke, but that after some reflection his inspiration became real. A prison official from the federal penitentiary in Marion, Illinois, to which Theriault was transferred as soon as the class action was filed, admitted on the stand that when Theriault was received at Marion his activities were truly religious in nature. While at Marion Theriault, through divers occult and prophetic powers which he claims, was able to develop a theology and church hierarchy, complete with its own written bible and clergy. The clergy, beginning with Theriault himself as the "Bishop of Tellus", bore new but episcopal-sounding titles, degrees, and commissions, all conferred by Theriault himself without any necessity for previous formal instruction, training, or study. Theriault's own "degree" was obtained originally from a mail-order house in California.

Theriault's message was addressed almost exclusively to prisoners and former prisoners and, as might be expected, most of his officers and members are still behind bars.

From the outset the prison officials have taken a dim view of Theriault's movement, branding it a fake and a fraud supported only by a group of the most hardened criminals in federal custody. They refused to permit him to conduct religious services in the prison solely on the ground that his religion was not "recognized", and when he first asked for and then demanded equal time with other religions they placed him in punitive segregation.

These attempts at suppression, however, appear to have only caused the movement to spread, which seems to be the history of such cases. Compare, for example, the experience of Pontius Pilate in dealing with Jesus of Nazareth where the charges were almost identical.

After considering all the evidence and researching the legal precedents, the court concluded that neither it nor the defendant prison authorities, if indeed anyone, has the power to finally say, under the First Amendment, what is or is not a worthy religion, the question being ultimately not one for debate or proof so much as one of faith and conscience. The court also concluded that the Church of the New Song, despite the character of many of its members, was at least as meritorious as certain other sects which, after conclusive legal battles, must now be "recognized" by the prison authorities. E. g., Cruz v. Beto, 445 F.2d 801 (5th Cir. 1971), vacated and remanded per curiam, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Cooper v. Pate, 324 F.2d 165 (7th Cir. 1963), reversed, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).

Being of this view the court first held that the insistence of the defendants that plaintiffs meet some standard of be defendants themselves runs squarely afoul of the freedom of exercise clause of the First Amendment, and further found as a fact that the "sole basis for religious "recognition" established only the punitive segregation of Theriault was his demand to hold religious services." The court therefore entered an order and injunction against defendants, providing in part as follows:

"(2) Respondent Carlson and respondent Silber are ordered to direct prison authorities under their jurisdiction to grant petitioners the right to freely exercise their religion, including the right to correspond with petitioner Theriault for the purpose of seeking spiritual guidance, as regulated by Bureau of Prisons Policy Statement 7300.43A and in accordance with the opinion of this court;

(3) Respondent Henderson is hereby ordered to immediately release petitioner Theriault from confinement in punitive segregation and restore him to the general prison population; and

(4) Respondent Carlson is hereby ordered to instruct prison authorities under his jurisdiction that they may not reimpose confinement in punitive segregation upon petitioner Theriault unless Theriault violates an institutional rule or regulation requiring such confinement subsequent to the date of this opinion and order or incites riot or insurrection during the conduct of his religious activities subsequent to the date of this opinion and order."

The order also contains some additional provisions, none of which, however, are pertinent to the present controversy.

Thereafter, on the 27th day of March, 1972, the plaintiffs filed a further petition in this court alleging several direct violations by the defendants of the portions of the prior order set out above, and praying that the defendants be adjudged in contempt of court for disobeying the prior order and that they be punished accordingly.

The first alleged violation of the order is that the defendants failed to release Theriault from punitive segregation as ordered by the court in paragraphs 3 and 4 of the order, but instead kept him in such segregation after the date of the order, both in Atlanta and later at the federal prison institution at LaTuna, Texas, to which he was transferred.

After much evidence and with some lingering doubt, the court concludes that at the present hearing the plaintiffs simply have not carried their burden of showing a contemptuous violation of this part of the order.

The order was signed on Friday afternoon, February 25, 1972. Frequently this court has no time to read and sign orders until after the other daily business of the court is over—many times after the Clerk's Office is closed. While the court has no specific recollection of what happened in this case, it is entirely possible and even likely that on this occasion the Clerk's Office was closed and that the order did not get to the Clerk's Office for processing and mailing until Monday, February 29th. Considering the present state of the mails, it is also likely that it did not arrive at the prison for several days thereafter.

In any event, the prison officials swear, and the court has no reason to doubt their testimony, that a copy of the order was not actually received at the prison until the afternoon of Wednesday, March 1st. The prison authorities also testify that prison policy is that they never move a prisoner even under the order of a court until a copy of the order is actually in their hands. Considering their responsibility for prisoners in their custody, the court concludes that this is a reasonable rule. The matter is further complicated, however, by the fact that on Wednesday afternoon, even after the order was received at the prison, the defendants still did not release Theriault from segregation except to remove him from his segregated cell into a waiting automobile to be transported to LaTuna, the prison officials in the meantime having been ordered by Washington to carry out such a transfer. Moreover, to complicate matters still further, the plaintiffs insist that Theriault was not released from segregation even after arriving at LaTuna. At the hearing, the court investigated this part of plaintiffs' claim thoroughly, and what appears is this. By the time Theriault arrived at LaTuna he had grown a beard, and upon his reception at that institution he was asked to shave his beard as a condition of his being released into the general prison population, it appearing that a valid prison regulation prohibits the wearing of beards at that institution. Theriault refused to shave his beard and for this reason was retained in segregation. Under the previous order this, of course, was perfectly permissible. Although the evidence here is not entirely without conflict, Theriault in substance admits that this is what happened. It also appears that after remaining in segregation at LaTuna for four days, he then agreed that he would shave his beard and thereupon he was removed from punitive segregation, although he further complains that even thereafter he was kept in a deadlocked (isolated) cell except that he was released to population to obtain his meals, and so forth.

Under all the circumstances, the court gives to the defendant prison authorities the benefit of the doubt and finds that there was no contemptuous violation of paragraphs 3 and 4 of the previous order.

The alleged violation by the Director of the Bureau of Prisons and the other defendants of paragraphs 2, 3 and 4 of the order is an entirely different matter. The court had thought that the meaning of paragraph 2 of the order was about as clear as the English language could make it....