1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-22-1996

Small v. Lehman

Precedential or Non-Precedential:

Docket 95-7279

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Small v. Lehman" (1996). 1996 Decisions. Paper 58.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/58
 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 ___________________ 

 No. 95-7279 

 ___________________ 

 

 ELWOOD SMALL, ERIC BAYNES, 

 BRIAN ROSS, LAWRENCE ELLISON, 

 ALI JAMAL ABDUL-QUDDUS, 

 

 v. 

 

 JOSEPH LEHMAN, Commissioner, PA Dept. of Corrections, ROBERT 

 BITNER, Chief Hearing Examiner, J. HARVEY BELL, Pardons Case 

 Specialist, J. DOE, Staff Attorney, WILLIAM J. LOVE, IRWIN S. 

 OWENS, Protestant Chaplin, FATHER BECKER, Catholic Chaplin, 

 STERYL GROVE, Grievance Coordinator at SCI-Huntingdon, 

 in their individual and official capacities, 

 Appellees. 

 

 Elwood Small; Eric Baynes, 

 Appellants 

 __________________ 

 

 An Appeal from the United States District Court 

 for the Middle District of Pennsylvania

 D.C. No. 93-cv-01155 

 ___________________ 

 

 Submitted Under Third Circuit LAR 34.1(a) August 13, 1996 

 Before: SLOVITER, Chief Judge, 

 COWEN, and ROSENN, Circuit Judges. 

 Opinion Filed October 22, 1996 

 _____________________ 

Elwood Small, AM-9183 

Eric Baynes, AM-8345 

SCI-HUNTINGDON 

1100 Pike Street 

Huntingdon, PA 16654-1112 

Pro Se 
Thomas W. Corbett, Jr., Attorney General 

Michael L. Harvey, Deputy Attorney General 

Calvin R. Koons, Sr., Deputy Attorney General 

John G. Knorr, III, Chief Deputy Attorney General, Chief, 

 Litigation Section 

Office of Attorney General 

15th Floor, Strawberry Square 

Harrisburg, PA 17120 

Counsel for Appellees. 

 ____________________ 

 OPINION OF THE COURT 

 _____________________ 

ROSENN, Circuit Judge. 

 This appeal by four present and former inmates of the 

Pennsylvania State Correctional Institution at Huntingdon (SCIHuntingdon) (collectively "Inmates"), presents a troublesome 

question relating to the provision of adequate facilities for 

religious worship in a prison environment. The inmates, Elwood 

Small, Eric Baynes, Brian Ross and Lawrence Ellison, members of 

the Sunni Muslim Brotherhood, sued prison officials under 42 

U.S.C. § 1983 for allegedly violating their First and Fourteenth 

Amendment rights by providing only one Muslim worship service in 

their prison for all Muslim sects. They filed suit pro se in 

the United States District Court for the Middle District of 

Pennsylvania on July 30, 1993. In their briefs filed in the 

district court opposing the defendants' motion for summary 

judgment, the Inmates asserted for the first time an alternative 

claim under the Religious Freedom Restoration Act of 1993 (RFRA 

or Act), 42 U.S.C. § 2000bb. 

 The district court, adopting the Report and Recommendation 

of a magistrate judge, found that the prison officials did not 

violate the Inmates' First Amendment rights because the officials 

provided sufficient alternative means for Muslim worship. 

Further, the court found that the Inmates' RFRA claim was 

untimely. It noted, however, that the Inmates' claim did not 

implicate the Act. The Inmates filed a timely appeal to this 

court. We vacate the judgment and remand the case to the 

district court for further proceedings. 

 I. 

 The Inmates are members of the Sunni Muslim religion, one 

of five organized groups of practicing Muslims at SCIHuntingdon. The prison provides Jummah and Taleem services for 

all the approximately two hundred Muslim inmates. All Muslim 

sects are invited to attend services, and generally upon arrival 

at services in the chapel separate into groups. 

 The Inmates requested separate space for religious services 

for Sunni Muslims, claiming that there are fundamental 

differences between the Muslim sects that prevent them from 
worshiping together in one service. The Sunni Muslim sect at 

SCI-Huntingdon approximates 75 in number and is one of the two 

largest at the institution. The Inmates claim that several empty 

rooms are available at the prison at times when they wish to 

worship, that they are one of the larger Muslim sects in the 

installation, and that the institution could allow them to use 

one of the available rooms without excessive expense or 

additional security. They contend that the differences between 

the Sunni Muslim Brotherhood and the other Muslim sects can be 

compared to the differences between Catholics and Protestants, 

who are provided facilities for separate services at Huntingdon. 

They also assert that Pennsylvania provides separate facilities 

for Sunni Muslim services at other maximum security prisons. 

 Prison officials denied the request, stating that the 

institution did not have the space or the resources to 

accommodate separate worship services. Further, the officials 

asserted that they had consulted an expert in the Muslim faith 

who informed them that Muslim belief permits a combined worship 

service of various sects. 

 The Inmates submitted numerous unsworn written statements 

by prisoners asserting that the teachings of the institution's 

current Muslim worship service leader are in direct contradiction 

to their faith. They assert that the Sunni Muslim religion 

mandates adherence to the four "Schools of Thought," and that 

they may not be led in prayer by anyone who does not subscribe to 

these doctrines. The unsworn declarations stated: "If I choose 

to attend Jummah Services, I am required to practice it under the 

teachings and practices ([e.g.,] language, Dress Code and 

teachings of Iman Wallace Deem Muhammad) which are in direct 

conflict with the four (4) School's [sic] of Thought of the Sunni 

Muslim Brotherhood." 

 In their brief opposing the defendants' motion for summary 

judgment, the Inmates asserted that there are several unused 

areas in the Huntingdon institution that could be used for 

services on Fridays without burdening the State, and that the 

prison's security staff had been increased. Further, they 

contend that the policy at SCI-Huntingdon violates RFRA. 

 The district court granted summary judgment for the 

defendants. The court maintained that the Inmates provided no 

support for their allegations, and thus accepted the defendants' 

version of the facts as true. It held that the defendants had a 

legitimate penological interest in denying the Inmates space for 

a separate Sunni Muslim service, finding that the institution 

lacked sufficient funds and staffing to provide the services. 

Further, the court noted that prison officials had consulted with 

an expert in the Muslim religion, who informed the officials that 

all Muslims are united as one regardless of "personal" 

designations such as Sunni Muslim. 

 The court also held that the Inmates may not assert their 

claim under RFRA because they did not raise it in their 

pleadings. They sought reconsideration and moved the court to 

vacate its judgment to permit them to amend their complaint and 

add a claim under RFRA. The district court denied the motion. 

Nonetheless, the court concluded that the Inmates' claim did not 
implicate the Act because the State did not burden their exercise 

of religion. 

 II. 

 The district court's grant of summary judgment is subject 

to plenary review. See Wheeler v. Towanda Area Sch. Dist., 950 

F.2d 128, 129 (3d Cir. 1991). 

 The threshold and critical question here is the proper 

standard of review to be applied in addressing prisoners' 

constitutional claims. We also must appropriately consider the 

policy of judicial restraint regarding prisoner complaints first 

set forth by the Supreme Court in Procunier v. Martinez, 416 U.S. 

396 (1974), partially overruled by Thornburgh v. Abbott, 490 U.S. 

401 (1989). There the Court recognized that "the problems of 

prisons in America are complex and intractable, and more to the 

point, they are not readily susceptible of resolution by decree." 

Id. at 404-05. Over a decade later, the Supreme Court not only 

reiterated these concerns, but pragmatically observed that where 

a state penal system is involved, as we have here, "federal 

courts have . . . additional reason to accord deference to the 

appropriate prison authorities." Turner v. Safley, 482 U.S. 78, 

85 (1986). Nonetheless, the Court also recognized the importance 

of the right to religious worship, even as to state or federal 

prisoners. The Court perceived that all prisoners must be 

afforded reasonable opportunities to "exercise the religious 

freedom guaranteed by the First and Fourteenth Amendments." Cruz 

v. Beto, 405 U.S. 319, 322 n.2 (1972). 

 In Turner, 482 U.S. at 93, and O'Lone v. Estate of Shabazz, 

482 U.S. 342, 353 (1987), the Court held that a prison regulation 

may validly impinge on an inmate's constitutional rights if it is 

reasonably related to a legitimate penological interest. A court 

may look to several factors in making its determination including 

the connection between the prison regulation and the legitimate 

governmental interest justifying the regulation, and whether 

there are alternative means open for the prisoner to exercise the 

right. Turner, 482 U.S. at 89-90. The court may also take into 

consideration the impact that accommodation of the constitutional 

right will have on prison resources and personnel. Id. at 90. 

 In the instant case, the district court held that SCIHuntingdon's policy of permitting only one Muslim service was 

reasonably related to a legitimate penological interest. It 

noted the institution's budgetary and space limitations, and the 

alternative Muslim services open to the Inmates. Thus, under the 

standards set forth in Turner and O'Lone, the court granted 

summary judgment for the defendants. 

 Although the district court may have correctly applied the 

standards established in Turner and O'Lone, Congress enacted the 

Religious Freedom Restoration Act in 1993 to legislatively 

overrule the Supreme Court's standard of review of religious 

claims as set forth in those cases. Through RFRA, Congress 

intended to "restore the compelling interest test . . . and to 

guarantee its application in all cases where free exercise of 

religion is substantially burdened." 42 U.S.C § 

2000bb(b)(1)(Supp. 1996). Although the Inmates may not have 
mentioned RFRA in their amended complaint, they did refer to it 

in their opposition-brief to the defendants' motion for summary 

judgment and in their motion for a second amendment to their 

complaint. The Act was in force and as it was the applicable 

law, the district court was required to apply the compelling 

interest test to the facts of the instant case, particularly 

since it had been called to its attention. As Judge Pollak 

aptly observed in Muslim v. Frame, 897 F. Supp. 215, 216 (E.D. 

Pa. 1995), "RFRA is the law regardless of whether parties mention 

it." We therefore hold that RFRA, being in effect at the time 

the district court heard this case, should have been considered 

by the district court before entering summary judgment. 

 III. 

 RFRA provides, in pertinent part: 

 (a) IN GENERAL.--Government shall not

 substantially burden a person's exercise of religion 

 even if the burden results from a rule of general 

 applicability, except as provided in subsection (b). 

 (b) EXCEPTION.--Government may substantially 

 burden a person's exercise of religion only if it 

 demonstrates that application of the burden to the 

 person-- 

 (1) is in furtherance of a compelling governmental 

 interest; and 

 (2) is the least restrictive means of furthering 

 that compelling governmental interest. 

42 U.S.C. § 2000bb-1 (Supp. 1996). We agree with other courts of 

appeal that have interpreted RFRA to hold that the Act applies to 

the claims of prisoners. See, e.g., Werner v. McCotter, 49 F.3d 

1476, 1479 (10th Cir.), cert. denied, Thomas v. McCotter, 115 S. 

Ct. 2625 (1995); Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 

1995). 

 Thus, the first question to be determined under RFRA is 

whether the State has substantially burdened the Inmate's 

exercise of religion; and, if so, whether the State can justify 

the imposition of that burden. Although the district court did 

not believe it need reach the Inmates' RFRA claim, it apparently 

decided to address the issue. The court concluded that the 

Inmates' claim did not implicate the Act. It adopted the 

magistrate judge's recommendation, which stated that the Inmates: 

 have not alleged that the government has "burdened" 

 their exercise of religion. Rather they [complain] 

 that the government has not taken affirmative steps to 

 provide them with a place to worship. . . . 

 Accordingly, because the Act restricts only burdensplaced upon 

the exercise of religion, it is not 

 applicable to this claim of failure to provide the 

 plaintiffs with a worship service of their choice. 

Thus, the court found that the Inmates had not proven that the 
State has substantially burdened their exercise of religion under 

the Act. 

 In their objections to the magistrate judge's report, the 

Inmates claimed that their rights to free exercise of their 

religion have been substantially burdened by the defendants 

because they are compelled to attend Jummah and Taleem services 

that are led by the American Muslim Mission, which has different 

practices, teachings, dress codes, and Imams. The American 

Muslim Mission's spiritual leader is Imam Wallace Deem Muhammad, 

who they assert does not follow the four (4) Schools of Thought 

of the Sunni Muslim Brotherhood. The Inmates maintain that the 

American Muslim Mission's "teachings and beliefs" are "in direct 

contradiction" with their beliefs. In particular, they claim 

that their religion prohibits them from "being led in Jummah 

prayer by someone who does not follow one of the Four Schools of 

Thought, which the American Muslims do not." 

 Under RFRA, the Inmates are required to show that a 

"substantial burden" to their free exercise of religion has 

resulted from the State's actions. Goodall v. Stafford County 

Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995), cert. denied, 116 S. 

Ct. 706 (1996); Werner v. McCotter, 49 F.3d 1476, 1480 (10th 

Cir.), cert. denied, 115 S. Ct. 2625 (1995). If they establish a 

substantial burden, then the burden of proof shifts to the State 

to show that it has a "compelling interest" in its actions and is 

furthering that interest by the "least restrictive means." 

Werner, 49 F.3d at 1480 n.2; Campos v. Coughlin, 854 F. Supp. 

194, 206 (S.D.N.Y. 1994). 

 The showing, however, required to prove a substantial 

burden under RFRA seems to be unsettled. In Werner v. McCotter, 

the Tenth Circuit Court of Appeals provided the following summary 

of standards which seem to be applicable under RFRA: 

 To exceed the "substantial burden" threshold, 

 government regulation must significantly 

 inhibit or constrain conduct or expression

 that manifests some central tenet of a 

 prisoner's individual beliefs; must 

 meaningfully curtail a prisoner's ability to 

 express adherence to his or her faith; or 

 must deny a prisoner reasonable opportunities 

 to engage in those activities that are 

 fundamental to a prisoner's religion. 

49 F.3d at 1480 (citations omitted); see also Bryant v. Gomez, 46 

F.3d 948, 949 (9th Cir. 1995) (to survive summary judgment under 

"substantial burden" test, plaintiff must prove facts that "show 

that the activities which he wishes to engage in are mandated by 

[his] religion.") 

 In the instant case, the district court concluded that the 

State had not burdened the Inmates' free exercise of religion 

because the Inmates alleged only that the prison institution had 

not taken any affirmative action and had not provided them with 

the separate facilities that they requested and considered 

necessary for worship. We agree that the State does not have an 

affirmative duty to provide every prison inmate with the clergy 
person or the service of his choice. Gittlemacker v. Prasse, 428 

F.2d 1, 4-5 (3d Cir. 1970). However, an opportunity to worship 

as a congregation by a substantial number of prisoners may be a 

basic religious experience and, therefore, a fundamental exercise 

of religion by a bona fide religious group. 

 The exercise of religion commonly involves

 group worship, and when the only option 

 available for a prisoner is under the 

 guidance of someone whose beliefs are 

 significantly different from or obnoxious to 

 his, the prisoner has been effectively denied 

 the opportunity for group worship and the 

 result may amount to a substantial burden on 

 the exercise of his religion. See SapaNajin 

 v. Gunter, 857 F.2d 463, 464-65 (8th Cir. 

 1988). 

Weir v. Nix, 890 F. Supp. 769, 788 (S.D. Iowa 1995) (citations 

omitted). The failure to provide otherwise available facilities 

may therefore be, depending on whether it is compelled, as 

substantial a burden on that right as would the removal of 

pertinent facilities from actual congregational worship. It may 

meaningfully bar their ability to express adherence to their 

faith. 

 Here, the Inmates claimed to have significant ideological 

differences with other Muslim sects, and that the prison's 

insistence on requiring all Muslims to worship collectively 

places a burden on their free exercise of religion. In 

particular, they urge that their faith "mandates" that they not 

be led in worship by a non-Sunni Muslim. On the other hand, the 

defendants assert that they have been informed by a reliable 

Muslim authority that the Inmates can comply with their religious 

faith if they worship in a combined service with other Muslims. 

With this factual and material issue in serious dispute, we do 

not believe that it can be determined on a motion for summary 

judgment, particularly with the compelling standard now 

prescribed by RFRA. 

 Even if the Inmates are able to establish that their 

religious right to worship has been substantially burdened by the 

defendants' inaction, this is not the end of the matter. A 

remaining question is whether conditions and circumstances at the 

prison compel the combined worship service and whether the action 

taken by the prison authorities is the least restrictive means of 

furthering the alleged compelling governmental interest. 

Although the State may have a compelling interest in operating an 

efficient and reasonably cost driven penal institution, the 

Inmates dispute whether the prison officials have taken the least 

restrictive measures in furthering that interest. Prison 

officials may not take shelter in the mere words of "security" 

and "lack of funds"; they must substantiate the permissibility 

of their conduct under the statute. The disputes of material 

fact do not permit a trial court to resolve them on a motion for 

summary judgment. 

 
 IV. 

 In summary, we hold that RFRA was the law of the land when 

the Inmates filed their complaint and that it applies to State 

and Federal prisons. The Inmates therefore were entitled to 

amend their complaint accordingly. We further hold that under 

RFRA the compelling interest standard applies to a claim charging 

state prison officials with substantially burdening the rights of 

prisoners to the free exercise of their religion. Therefore, the 

district court should not have decided genuine issues of material 

fact by summary judgment when it concluded that RFRA was 

inapplicable to the Inmates' claims. Accordingly, the judgment 

of the district court will be vacated and the case remanded to 

the district court for further proceedings consistent with this 

opinion. 

 Each side to bear its own costs.