Whitney v. Brown

• Decision Date: 15 August 1989
• Docket Number: Nos. 88-1308,88-1399,s. 88-1308
• Parties: Harry WHITNEY, et al. Plaintiffs-Appellees, Cross-Appellants, v. Robert BROWN, et al. Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1068

882 F.2d 1068

Harry WHITNEY, et al. Plaintiffs-Appellees, Cross-Appellants, v. Robert BROWN, et al. Defendants-Appellants, Cross-Appellees.

Nos. 88-1308, 88-1399.

United States Court of Appeals, Sixth Circuit.

Argued May 23, 1989.

Decided Aug. 15, 1989.

Michael Barnhart (argued), Barnhart & Mirer, P.C., Detroit, Mich., for plaintiffs-appellees, cross-appellants.

Susan A. Harris (argued), Corrections Div., Lansing, Mich., for defendants-appellants, cross-appellees.

Before MILBURN, Circuit Judge; PECK, Senior Circuit Judge, and ALDRICH, District Judge ^*.

MILBURN, Circuit Judge.

This is a prisoner civil rights case brought pursuant to 42 U.S.C. Sec. 1983 by Jewish inmates at the State Prison of Southern Michigan ("SPSM"). They challenge a prison policy instituted in 1985 that prohibits them from congregating in weekly Sabbath services and an annual Passover Seder. The defendants-appellants/cross-appellees prison officials appeal from that portion of the district court's decision requiring them to permit an annual Passover Seder. The plaintiffs-appellees/cross-appellants inmates appeal from that portion of the district court's decision rejecting their claim to weekly Sabbath services. For the reasons that follow, we affirm the decision permitting an annual Passover Seder and reverse the denial of the inmates' claim to weekly Sabbath services.

I.

Harry Whitney and the three other plaintiffs ("inmates") commenced this action on April 14, 1986, by filing a complaint seeking declaratory and injunctive relief from a new prison policy prohibiting them from traveling to the SPSM Central complex for weekly Sabbath services and an annual Passover Seder. The named defendants included Robert Brown, Director of the Michigan Department of Corrections, and Dale Foltz, Warden of the Michigan State Prison ("prison officials"). The inmates claimed the new SPSM policy was unnecessary and overly restrictive and thereby violated their First and Fourteenth Amendment rights. By agreement of the parties, the case was referred to the magistrate, who conducted a two-day hearing on January 12 and 13, 1987.

On October 9, 1987, the magistrate issued findings of fact and conclusions of law and recommended the prisoners be allowed to conduct an annual Passover Seder and Sabbath services every other Saturday. After conducting a brief hearing on February 19, 1988, the district court adopted the magistrate's recommendation allowing annual Passover Seders, but rejected the recommendation permitting biweekly Sabbath services. After the district court denied the prison officials' motion for reconsideration, they filed a timely notice of appeal. The inmates then filed a cross-appeal.

Until the 1970s, the SPSM was operated as a single prison of 4,500 beds. In March 1985, pursuant to a consent order entered in another proceeding, prison officials began to divide the prison into separate, autonomous facilities of various security levels. The SPSM has now been divided into three complexes, with an ultimate goal of having the prison divided into six separate units. It is uncontested that the plan to operate the SPSM as separate units within one wall is in line with current prison management practices and will help the prison reach legitimate goals, including limiting the contact between inmates of various security classifications.

Since 1985, inmate movement between the complexes has been restricted mainly to prisoners undergoing medical or psychiatric treatment in the prison hospital in the North complex, inmate truck drivers and helpers serving the three complexes, and prisoner movement between the complexes to attend prisoner pension fund committee meetings.

The SPSM Central complex is for prisoners assigned to close custody and is the prison's maximum security area. The South complex is for prisoners requiring minimum custody, and the North complex is for medium-custody prisoners. Since 1985, the North complex has been operated as an independent institution with its own warden and staff.

Generally, there are fewer than ten active practitioners of the Jewish faith in the combined inmate population. At the time this action was filed, there were four active practitioners in the Central complex. It is agreed that this case involves the travel of a total of six Jewish inmates from the North and South complexes to the Central complex. It is also agreed that these inmates are sincere in their religious beliefs.

Tenets of the Jewish faith provide that a Sabbath service involves the Torah and a minyan, which is a gathering of no less than ten persons over the age of thirteen of the Jewish faith. Without both a Torah and a minyan, any "service" that would be provided for Jewish believers was characterized below as a "nothing." A Torah is kept in the Central complex, where the prison's Jewish library and chapel are located. The parties agree there is no other location in the prison suitable for housing the chapel, library, and the Torah. The Torah cannot be moved from one complex to another without being searched, an action the faithful consider a desecration. Moreover, moving the Torah would not address the need for gathering ten qualified believers to form a minyan required for a meaningful service.

The Passover Seder is a family celebration of great religious significance to believers in the Jewish faith, in the sense that the concepts of community and family are central to the religion. Seders do not require the presence of a Torah or a minyan. But because the Passover Seder is a celebration of the exodus of the Jewish people out of Egypt, an individual's solo seder, or one conducted with only a very few worshipers, was characterized below as "a very miserable seder."

For approximately forty-five years, from the time the SPSM opened until 1985, Jewish inmates met in the Central complex for weekly congregative Sabbath services. Jewish inmates also met for a congregative Passover Seder. When the prison was divided into three separate complexes in 1985, Jewish inmates were the only inmates permitted to travel between complexes to attend weekly religious services. The Jewish faith, however, is the only religion at the prison that requires a minimum number of inmates to be gathered together before full religious services may be conducted. Sabbath services last for about an hour and fifteen minutes every Saturday, and the magistrate found the Jewish inmates' weekly attendance at these services did not incite anger or jealousy in other inmates.

Movement from the North and South complexes to the Central complex requires walking out of doors, but the inmates remain inside the SPSM walls at all times. Inmates entering from one complex to another are given a pat-down or strip-search. In the year before the new policy became effective, there were no escapes attempted by Jewish inmates, nor were there any reports of attacks on them. In 1983, two inmates going to Sabbath services were found carrying contraband into the Central complex. Prison officials responded by revoking the two inmates' privilege of attending the services.

Warden Foltz testified that the travel of six Jewish inmates to the Central complex for Sabbath services would increase the work on the staff at the gates through which the inmates would pass. He testified that between daily visitors, prisoners traveling to the hospital or other group meetings in other complexes, and prison staff members traveling from one complex to another, the officers who man the gates must shake down, search, check in and check out hundreds of people a day. In view of the traffic through the gates, Foltz conceded that the addition of six inmates traveling to Sabbath services once a week would have little, if any, impact on the security staff's workload.

Prison officials still allow Rabbi Jeffrey Gale to bring Jewish volunteers to the prison to make up a minyan at Sabbath services in the Central complex. These volunteers must be searched before they enter the complex and are escorted throughout their visit. Over the past two years, Rabbi Gale has brought volunteers into the prison about once a month. But the inmates in the North and Central complexes have not been allowed to attend these services.

One measure of relief the inmates sought in this action was a temporary restraining order to permit a Passover Seder. The plaintiffs were successful in obtaining a TRO which, consistent with prior prison practices, ordered that a seder be allowed in the North complex. The district court later modified its order in response to requests made by the prison officials. The seders conducted pursuant to the TRO have been conducted in the Central complex. In addition, instead of having the inmates and their families prepare traditional foods in the North complex kitchen as in years before, the seders are now catered by a nearby synagogue. Recent seders have been attended by fewer than twenty of the inmates' family members.

In his findings of fact, the magistrate found that many of the prison officials' justifications for the ban on the Jewish inmates' intercomplex travel ultimately arose from problems with overcrowding and understaffing which continued to exist after the ban was in place. The magistrate concluded that the point of "mutual accommodation" in this case would be to require the prison officials to allow the Jewish inmates to gather in a Passover Seder and to attend Sabbath services, complete with a minyan and a Torah, on alternate Saturdays.

The district court found the importance of the Passover Seders to the Jewish religion, and the minimum burden they placed on the prison, to compel the acceptance of the magistrate's recommendation that annual Passover Seders be permitted. But it held the ban on travel to Sabbath services was reasonably related to the interest in eliminating mingling between inmates of different security levels, and upheld it.

This appeal presents the question of whether...