Sutton v. Rasheed

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

3-19-2003

Sutton v. Rasheed

Precedential or Non-Precedential: Precedential

Docket 97-7096

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PRECEDENTIAL

Filed March 19, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7096

RICHARD X. SUTTON;

ROBERT X. WISE; MICHAEL X. WALKER,

Appellants

v.

IMAM ADEEB RASHEED;

JAMES SMITH, Chaplain; FRANCIS MENEI, Chaplain;

JOHN PALAKOVICH; KENNETH KYLER;

MARTIN F. HORN;

UNITED STATES OF AMERICA

(Intervenor in District Court)

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. Civil Action No. 94-cv-01865

(Honorable Edwin M. Kosik)

Argued: March 6, 2002

Before: BECKER, Chief Judge and SCIRICA, Circuit Judge,

and POLLAK, District Judge*

(Filed March 19, 2003)

* The Honorable Louis H. Pollak, United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

2

JEFFREY S. ISTVAN, ESQUIRE

(ARGUED)

Fine, Kaplan & Black

1845 Walnut Street, 23rd Floor

Philadelphia, Pennsylvania 19103

Attorneys for Appellants

FRANCIS R. FILIPI, ESQUIRE

(ARGUED)

Office of Attorney General of

Pennsylvania

Strawberry Square, 15th Floor

Harrisburg, Pennsylvania 17120

Attorney for Appellees

WILLIAM E. FAIRALL, JR., ESQUIRE

Department of Corrections

55 Utley Drive

Camp Hill, Pennsylvania 17011

Attorney for Amicus-Appellee,

Pennsylvania Department of

Corrections

OPINION OF THE COURT

PER CURIAM:

This is an appeal from an order of the District Court

granting defendants summary judgment on claims that

defendants infringed upon, inter alia, plaintiffs’ rights

protected by the Free Exercise Clause of the First

Amendment. Plaintiffs, three members of the Nation of Islam,1

contend that the Pennsylvania Department of Corrections’

former policy of limiting inmates’ access to religious

material while they were confined in a special unit for high-

risk inmates was unconstitutional — both as applied and

facially — because defendants used “unlawful prison rules”

to “illegally ban” Nation of Islam texts.

1. The Nation of Islam movement is “based on the [Qur’an] as interpreted

by Elijah Muhammad and ministers within the Nation.” Cooper v. Tard,

855 F.2d 125, 126 (3d Cir. 1988).

3

We hold that there was a constitutional violation, but

because we conclude that defendants are protected by

qualified immunity, we will affirm.2

I.

In response to three days of riots in 1989 by prisoners at

the State Correctional Institute at Camp Hill (“SCI-Camp

Hill”), the Pennsylvania Department of Corrections

designed, and in April 1992 created, a Special Management

Unit (“SMU”) at SCI-Camp Hill. Prior to the establishment

of the SCI-Camp Hill SMU, high-risk inmates of

Pennsylvania prisons were placed in restricted housing

units (“RHUs”), maximum custody settings still used at a

number of correctional institutions other than Camp Hill.3

A salient aspect of the RHU regime, as it existed at the

commencement of this litigation, was its limitation on what

reading materials an RHU inmate could keep with him.

Department of Corrections Administrative Directive 802

(“DC-ADM 802”) provided that inmates in administrative

custody were permitted “no books other than legal

materials and a personal Bible, Holy Koran4 or other

religious equivalent . . . .”5 Department of Corrections

Administrative Directive 801 (“DC-ADM 801”) similarly

provided: “[administrative custody] inmates will be

permitted legal material that may be contained in one (1)

records center box . . . . A personal Bible, a Holy Koran, or

equivalent publication is permitted.”

2. We have jurisdiction under 28 U.S.C. § 1291.

3. According to Department of Corrections Regional Deputy

Commissioner Dr. Jeffrey Beard, “[T]he RHUs are used for both

disciplinary and administrative custody inmates, to provide secure

housing for both inmates who require long-term confinement in

maximum housing because of an inability to adjust to prison life in

general population as well as for those who need such custody only in

the short term to address a misconduct or temporary security need.”

4. “Koran” is an alternate spelling of “Qur’an.”

5. DC-ADM 802, section V provided authority for a “Program Review

Committee” or “Unit Management Team” to add privileges “based on an

individual’s need, on safety and security, and on behavioral progress of

the inmate.”

4

The regulations governing the SCI-Camp Hill SMU were

modeled on those governing the RHU.6 But unlike the

Department of Corrections’ traditional restricted housing

units, the SMU is a structured program that provides for

progression through a series of five phases, from Phase V to

Phase I, at which point the inmate is returned to the

general prison population.7 Progression from one phase to

the next is accomplished by compliance with specified goals

and is rewarded by additional privileges. The intent of the

program is to provide security for both staff and inmates

while at the same time giving inmates with a long history of

behavioral problems various incentives to modify their

behavior. The program functions to prepare such inmates

for reintegration into the general prison population.

Some inmates begin their time in the SMU at Phase IV,

but most begin at Phase V. Inmates in Phases III, IV, and

V are under restrictive regimes: they are placed under strict

security and control practices; they have short exercise

periods; and they have limited access to their own personal

property. At the outset of this litigation, a Phase V SMU

inmate’s access to personal property was confined to a

newspaper, one package of cigarettes every two weeks, one

records center box of legal materials (“with even exchange”),8

and religious materials consisting of one personal “Bible,

Quran or equivalent only.”9 Phase IV increased inmates’

privileges slightly, but still allowed them a “Bible, Quran, or

equivalent only.” At Phase III, an inmate was allowed to

have legal materials, a Bible or Qur’an, and “[two] other

religious reading materials.” At Phase II, an inmate was

6. The Department of Corrections’ summary of those regulations,

Appendix III to the SMU Inmate Handbook, is reprinted as an appendix

to this opinion.

7. In a June 29, 1992 Department of Corrections policy statement, the

SMU is defined as “A special unit within designated Department of

Corrections institutions designated to safely and humanely handle

inmates whose behavior presents a serious threat to the safety and

security of the facility, staff, other inmates, or him or herself.”

8. According to the appellees, “[a] records center box has approximate

interior dimensions of 15 inches (long) by 12 inches (wide) by 10 inches

(deep).”

9. “Quran” is another alternate spelling of “Qur’an.”

5

permitted legal materials, a Bible or Qur’an, and four other

religious reading materials. At Phase I, an inmate was

returned to the general population, with all privileges

“except that [his] movements [would] be controlled and

monitored.”

Plaintiff Richard X. Sutton was confined in the SMU from

October 5, 1993 until July 20, 1995, when he was

transferred to SCI-Greene. Plaintiff Robert X. Wise was

confined in the SMU from January 3, 1994 until December

27, 1994, when he was transferred to SCI-Graterford; as of

August 28, 2000, he was in the general population at SCI-

Albion. Plaintiff Michael X. Walker was confined in the SMU

from November 17, 1993 until August 28, 1996, when he

was transferred to SCI-Rockview. Plaintiff Walker has now

been released from prison. All three are adherents of the

Nation of Islam.

Several times between October 1993 and May 1994,

Sutton asked defendant Imam Adeeb Rasheed,10 the

Muslim Chaplain at SCI-Camp Hill, whether he would be

permitted to have access to various texts written by Fard

Muhammad, Elijah Muhammad and Louis Farrakhan from

his personal property.11 Believing the texts were not

religious, Imam Rasheed determined that Sutton should not

be permitted access to them. During the same period,

Sutton also asked Officer Olenowski, the SMU Property

10. The caption of this case spells the Imam’s name as “Rashid.” In

deposition testimony, the Imam stated that the proper spelling of his

surname is “R-A-S-H-E-E-D.” This opinion will use the latter spelling.

11. Fard Muhammad was the founder of the Nation of Islam, and

followers believe him to have been the Messiah. Elijah Muhammad is

believed by Nation of Islam faithful to have been a prophet. Louis

Farrakhan is a prominent minister in one of the branches of the Nation

of Islam. The texts in question are primarily those written by Elijah

Muhammad: Message to the Blackman, The Supreme Wisdom, How to

Eat to Live, Our Savior Has Arrived and The Fall of America. In addition,

plaintiff Wise attempted to obtain The Meaning of FOI by Louis

Farrakhan and The Wake of the Nation of Islam by Silas Muhammad. In

her deposition, plaintiffs’ expert, Aminah Beverly McCloud, a professor of

Islamic Studies in the Department of Religious Studies at DePaul

University, states that the texts in question are “required reading by the

faithful.” Her report is unrebutted.

6

Officer, for the books in question. The inmates’ personal

property, which includes the Nation of Islam texts at issue,

appears to have been stored in the SMU Property Room.

Olenowski, in turn, asked Imam Rasheed whether the

books were religious. Imam Rasheed responded negatively,

and Olenowski denied Sutton access to them. By May 27,

1994, Sutton reached Phase III of the program, and, under

the regulations, was permitted two religious texts in

addition to the Qur’an. He requested two Nation of Islam

texts from his personal property. But Acting Property

Officer Stone denied the request because “[n]o religious

books [were] found that were authorized by the Imam [i.e.,

Rasheed].”

On May 30, 1994, Sutton filed an Official Grievance

directed to defendant John A. Palakovich, the

Superintendent’s Assistant at SCI-Camp Hill from 1979

until July 1995. Palakovich forwarded the grievance to

defendant Reverend James W. Smith, the Facility

Chaplaincy Program Director at SCI-Camp Hill. In addition,

Sutton sought the assistance of defendant Kenneth D.

Kyler, the Superintendent of SCI-Camp Hill. In an attempt

to resolve the impasse, the SMU Unit manager, Arthur

Auxer, together with Reverend Smith and Imam Rasheed,

met with Sutton. That meeting appears to have been

contentious. Sutton expressed his belief that Message to the

Blackman, one of the principal works of Elijah Muhammad,

was religious and that Rasheed was “not an Imam” —

presumably meaning that he was not a Nation of Islam

Imam. Imam Rasheed and Reverend Smith insisted that

Message to the Blackman was not an Islamic text. The

meeting ended without resolution.

On June 9, 1994, Sutton filed a second grievance with

Palakovich, the Superintendent’s Assistant, stating he did

“not believe in the same doctrine as Rasheed.” On June 14,

Palakovich again denied Sutton’s request for the books

because “[t]he books in question were received by Chaplain

Rasheed and determined not to be religious in nature.” The

same day, Superintendent Kyler denied the appeal that

Sutton had initially filed, writing that “[s]ince the books in

question are not considered religious books, you may not

receive them at this time.” Kyler also wrote, “It should be

7

pointed out that Chaplain Rasheed as the Muslim Ima[m] is

considered the authority when making a determination on

this type of book.” When Sutton again wrote to Kyler asking

for the basis of Imam Rasheed’s authority, Kyler responded

that “Rev. Rasheed is an Islamic Minister and as such is

the recognized institution authority on the Muslim religion.”

On July 4, 1994, Sutton wrote to defendant Father

Francis T. Menei, Administrator of Religious and Family

Services at the Department of Corrections, explaining that

Imam Rasheed, as a Sunni Muslim, did not follow the

teachings of Elijah Muhammad. He again requested access

to his Nation of Islam texts. Father Menei asked Reverend

Smith to review the books. In a memorandum to Father

Menei, Reverend Smith wrote:

On July 26, 1994 I reviewed the following books

written by Elijah Muhammad:

Our Savior Has Arrived”

“Message to the Blackman”

“How to Eat to Live”

The general contents of each of the aforementioned

books appears to be of a social/political nature,

referencing both racial superiority and political

activism. Religious discussion is generally in the

context of a social agenda, making “religion” a vehicle

for the promotion of the central ideologies in these

books, the essence of which smacks of racism and

hatred.

Religion, by definition, begins and ends with a search

for and discovery of God.

These books are about attaining a political program,

“religion” merely attached to their itinerary as a useful

component to achieving this end.

It is therefore my opinion that these books are not

essentially religious in nature.

Two days later, without reviewing the books in question,

Father Menei wrote to Sutton regarding his appeal, stating,

“We have determined that these books are not essentially

religious in nature,” and that “these books smack of racism

8

and hatred, and I know of no God that wants us to worship

him in this way.”

Plaintiff Robert X. Wise appears to have gone through a

similar peregrination. At some point prior to June 6, 1994,

Wise attempted to gain access to various Nation of Islam

texts kept in the property lock-up. Wise was not allowed to

have any of his Nation of Islam books because he was at

Phase IV of the SMU program, which only permitted access

to a Bible, Qur’an or “equivalent religious text.” On June 6,

Wise filed a grievance with Palakovich, explaining that he

was a member of the Nation of Islam and that he had been

denied access to the texts, and questioning the authority of

Imam Rasheed to determine whether Nation of Islam texts

were religious. Reverend Smith responded to that grievance,

noting that Imam Rasheed had determined the material in

question was not religious and that an inmate at Phase IV

was only permitted access to “his main holy book.” Wise

appealed to Superintendent Kyler, arguing he did not

“worship the same God that Orthodox Imam Rasheed

worships.” Kyler denied that appeal, writing, “The Muslim

Chaplain is the religious authority in determining if the

books are religious or not.” He concluded, “Since [Rasheed]

has determined it not to be religious, you are not permitted

to have it while in the SMU.” Kyler also wrote, “I would

suggest you concentrate on improving your adjustment to

be released from the SMU at which time you may have the

book in question.”

At some point before July 12, 1994, Wise reached Phase

III in the SMU system, and again sought access to the

Nation of Islam texts. His requests were denied on the

ground that Imam Rasheed determined the texts were not

religious. On July 15, 1994, Wise filed a grievance with

Palakovich, who denied the request for the texts because

Reverend Smith determined the books in question were not

religious and not permitted in the SMU.

Between November 1993 and the fall of 1995, SMU

inmate Michael X. Walker also requested various Nation of

Islam tracts by Elijah Muhammad and Louis Farrakhan.

His requests were denied.

9

II.

Plaintiffs Sutton and Wise filed a pro se complaint in

November of 1994 against defendants Imam Rasheed,

Reverend Smith, and Father Menei. After retaining counsel

in the summer of 1995, Sutton and Wise, together with

plaintiff Walker, filed an amended complaint, adding

defendants Kyler and Palakovich and Commissioner of

Corrections Martin F. Horn. As the District Court

compendiously summarized, the principal claims put

forward in the amended complaint were that defendants’

“alleged deprivations of [plaintiffs’] religious materials . . .

violated [plaintiffs’] rights to: free exercise of religion under

the First Amendment and the Religious Freedom

Restoration Act, 42 U.S.C. § 2000bb-bb-4 (1993) (the

‘RFRA’); freedom from the establishment of religion by the

state under the First Amendment; due process and equal

protection under the Fourteenth Amendment; and the

rights secured by 42 U.S.C. §§ 1981, 1985(3), and 1986.”12

Sutton v. Rashid,13 No. 97-7096, unpub. op. at 2 (M.D. Pa.

Sept. 3, 1996). The amended complaint sought

“[c]ompensatory and punitive damages, as well as

declaratory and injunctive relief and attorneys’ fees.” Id. On

September 3, 1996, the District Court granted defendants’

motion for summary judgment as to plaintiffs’ free exercise

claims and denied plaintiffs’ motion for partial summary

judgment. On January 21, 1997, the District Court granted

defendants’ supplemental motion for summary judgment on

the remaining claims. Plaintiffs filed a timely appeal. In a

judgment order dated November 21, 1997, we affirmed the

judgment of the District Court. Plaintiff-appellants

subsequently filed a petition for panel rehearing, which was

granted.

On October 29, 1998, at oral argument before this court,

counsel for defendants argued that the policy under attack

had been changed, effective August 16, 1995. In making

12. Plaintiffs’ contentions based upon RFRA have been rendered moot by

the decision in City of Boerne v. Flores, 521 U.S. 507 (1997) (as applied

to the states and hence to state officials, RFRA exceeds congressional

power).

13. As noted, this caption misspells Rasheed.

10

this argument, counsel relied on two administrative

directives that allegedly amended DC-ADM 801 and 802 “to

allow inmates to maintain religious, as well as legal

material, in one (1) records center box”; and the declaration

of Dr. Jeffrey Beard, explaining the reasons for those

amendments. Counsel further represented that the Nation

of Islam texts in question are now “absolutely” permitted. In

response to these representations, plaintiffs filed, on

December 28, 1998, a “Motion to Supplement the Record

on Appeal.” Because the proposed additional information

was keyed to the question of mootness, we granted

plaintiffs’ motion and directed defendants to file a

memorandum addressing the record as supplemented. See

Clark v. K-Mart Corp., 979 F.2d 965, 967 (3d Cir. 1992) (en

banc) (“[B]ecause mootness is a jurisdictional issue, we may

receive facts relevant to that issue; otherwise there would

be no way to find out if an appeal has become moot.”).

The enlargements to the record include an affidavit from

Sutton and two institutional grievance forms. Together,

these documents suggest that Sutton, while assigned to the

Houtzdale RHU in December of 1998, requested, from his

personal property, the following texts: The Flag of Islam (by

Elijah Muhammad), Seven Speeches (by Louis Farrakhan),

A Torchlight for America (by Louis Farrakhan), The

Convention of the Oppressed (by Louis Farrakhan), How to

Teach Math to Black Students (by Shahid Muhammad),

Light from the Ancient African (author unknown), Creating

Wealth (by Robert G. Allen), Black Economics (by Jawanza

Kunjufu), My Life’s Journey Traveling with the Wise Man (by

Mother Tynnetta Muhammad14), The Corner by Night (by

Mother Tynnetta Muhammad), and This Is the One (by

Jabril Muhammad). According to his affidavit, Sutton was

denied access to these texts on the basis of regulation DC-

ADM 801, which limited inmates in the RHU to a Bible,

Qur’an, or equivalent religious text, despite Sutton’s

attempt to convince the officer involved that the cited policy

was no longer in effect. In the Department of Corrections’

responsive papers, Superintendent John McCullough

stated:

14. Mother Tynnetta Muhammad was the wife of Elijah Muhammad.

11

I am aware that an inmate currently at my institution,

Richard X. Sutton . . . has submitted an affidavit in

which he represents that the amendments to [DC-ADM]

801 and 802 effective August 16, 1995 are either not in

effect or not being faithfully followed.

That is not correct. To the contrary, the bulletins that

were issued and made effective from August 16, 1995

. . . have been in full force and in effect the entire time

SCI-Houtzdale has been open to confine inmates.

. . . .

I appreciate that Mr. Sutton’s December 3, 1998

grievance . . . would lead the casual reader to the

conclusion that Mr. Sutton was denied the additional

books because he was limited by the former policy to

one Bible, Holy Koran or its religious equivalent. This

is simply incorrect. The issue being addressed through

Mr. Sutton’s grievance (although this is not clear either

from his grievance or from the response he ultimately

received) was whether the two books written by Mother

Tynnetta Muhammad were religious books (which

would have been permitted so long as they could be

contained with Mr. Sutton’s other legal and religious

material in a records center box) or were educational

books (which the inmate is not permitted to possess in

the status that Mr. Sutton was then in).

On April 19, 1999, appellants filed a Second Motion to

Supplement the Record on Appeal, containing an affidavit

from Wise, stating that the prior policy remained in effect at

SCI-Albion, where he was confined. Concluding that the

record on appeal had been sufficiently augmented, we

denied that motion.

On July 12, 1999, we entered an order directing the

parties to “file succinct memoranda reflecting relevant

changes in policy, law or additional submissions.” In light

of these submissions, we remanded the case on September

20, 1999 (while retaining jurisdiction) to the District Court

with “instructions to determine whether the claim for

injunctive and declaratory relief is moot in view of the

putative change in policy.” We stated that “[i]n making this

determination, the Court may wish . . . . to ascertain how

12

Corrections officials determine whether a book requested by

a prisoner qualifies as religious material under the current

policy, and whether the [Nation of Islam books requested]

are available to inmates as religious materials . . . .”

Accordingly, the District Court held a hearing on January

27, 2000, on the most recent incarnation of the Department

of Corrections policy and its implementation. In a

subsequent Order, the District Court found the August 16,

1995 changes to the Department of Corrections policy were

poorly enforced. The District Court also found that even

after state correctional facility superintendents were

informed of policy misinterpretations on April 28, 1999,

“distinctions and limitations persisted . . . . Although an

administrative procedure was in place where disputes

arose, the prison authorities continued to follow previous

practices in determining what was religious material. This

practice continues.” The District Court also referenced a

Department of Corrections policy change made in February

2000 and observed that the new policy failed to define

religious materials, an issue “which continues to be at the

root of continuing misinterpretations.”

After the District Court’s memorandum, the putative

February 2000 SMU policy change became effective April

17, 2000.15 Because the effects of this latest policy change

had not yet been determined, we again remanded on June

16, 2000 to the District Court “with directions to determine

whether plaintiffs’ claims for injunctive and declaratory

relief are moot.”

On remand, the District Court entered an order on

August 21, 2000, advising that plaintiffs’ claims for

injunctive and declaratory relief were not moot. But in a

Supplemental Memorandum dated October 30, 2000, the

District Court stated the injunctive and declaratory relief

15. The February 2000 policy change (targeted to go into effect on March

15, 2000) provides that “[disciplinary custody] inmates will be permitted

to retain religious, as well as legal materials that may be contained in

one record center box. Any additional or religious materials will be stored

and made available upon request on an even exchange basis. Not more

than one subject for every day unless approved by the Department of

Corrections.”

13

claims were moot.16 To resolve this confusion, we remanded

again with instructions to “fully comply” with our June 16,

2000 Order.17 We also granted motions to file supplemental

briefs on mootness and granted leave to supplement the

record on appeal. On March 21, 2001, we reaffirmed our

prior remand requesting the District Court to issue a final

order on mootness and to make a determination whether

this was an injury capable of repetition yet evading review.

We also requested the District Court to make findings of

fact and determine whether plaintiffs still pressed damage

claims.

After this remand, the District Court held that the claims

for injunctive and declaratory relief were moot. The District

Court based this holding on submissions from the

Department of Corrections about a new SMU directive

adopted October 5, 200118 that “virtually allow[s] each

inmate to determine what is religious material.” The District

Court observed “because we concluded that the changes to

Directives 801 and 802 have force of law, we do not believe

that the injury was of a type likely to happen to plaintiff

again regardless of declaratory and injunctive relief.” The

District Court also stated that damages claims remained

pending.

The October 5, 2001 amendment of DC-ADM 801

provides:

16. In the Supplemental Memorandum, the District Court found: (1) the

specific books plaintiffs sought have been provided to them; (2) it is

undisputed that the policy change of February 2000, which became

effective on April 17, 2000, was issued throughout the Pennsylvania

Department of Corrections facilities; (3) employees were not provided

with a definition of religious material in the policy change; (4) an inmate

may have as much combined legal or religious material as will fit inside

one records center box; and (5) an inmate aggrieved by a decision on

what is “religious material” may file a grievance challenge. The District

Court also stated “the broader issue of what is defined as ‘religious’

material in the present case remains constitutionally questionable.”

17. Just prior to this Order, the District Court submitted the

Supplemental Memorandum clarifying his previous memorandum.

18. The District Court was advised by the Office of the Attorney General

for Pennsylvania that another policy was “formally adopted on October 5,

2001, and is contained in Administrative Directives 801 and 802.”

14

5. [Disciplinary Custody] status inmates shall be

permitted to maintain in their cells any combination of

personal property from the following list that will fit

into one standard sized records-center box:

a. Written materials in accordance with DC-ADM

803, “Inmate Mail and Incoming Publications”;19

b. One newspaper (one-for-one exchanges are

permitted for newly received editions);

c. Ten magazines (one-for-one exchanges are

permitted for newly received publications).

Additionally, each facility will establish procedures to

permit inmates to exchange legal materials from their

cells with stored legal materials once every 30 days.20

The Program Review Committee may authorize more

frequent exchanges based upon a demonstrated need

that the inmate requires additional exchanges for

active litigation. Such legal material exchanges,

however, may not exceed one per week.

DC-ADM 801-3, “Disciplinary Custody Status Inmates,”

amending section IV, M.

The October 5, 2001 amendment to DC-ADM 802

provides:

4. [Administrative Custody] status inmates shall be

permitted to maintain in their cells any combination of

personal property from the following list that will fit

into one standard-sized, records-center box:

a. Written materials in accordance with DC-ADM 803,

“Inmate Mail and Incoming Publications”;

b. One newspaper (one-for one exchanges are permitted

for newly received editions)

c. Ten magazines (one-for-one exchanges are permitted

for newly received publications).

19. DC-ADM 803 (effective June 24, 2002) establishes “policy and

procedures governing inmate mail privileges and incoming publications.”

20. Based on the Department of Corrections’ oral representations to this

Court and the District Court, we interpret the October 2001 policy to

permit inmates to exchange religious or legal materials.

15

5. Inmates will be provided access to the facility law

library by requesting legal materials in accordance with

local procedures. Leisure reading material may be

requested on a weekly basis from the library.

Additionally, each facility will establish procedures to

permit inmates to exchange legal materials from their

cells with stored legal materials once every 30 days.21

DC-ADM 802-10, “Administrative Custody Housing Status,”

amending section IV, M, subsections 4 and 5.

At oral argument on March 6, 2002, a Department of

Corrections representative stated that under the new policy,

the contents of inmates’ records center boxes were “not

examined.” The Department of Corrections representative

also explained that grievance procedures were available for

inmates claiming the new policy was not being properly

applied.

III.

Our review of the District Court’s grant of summary

judgment is plenary. Johnson v. Horn, 150 F.3d 276, 281

(3d Cir. 1998). A grant of summary judgment is appropriate

if there are no genuine issues of material fact22 and the

moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

A.

As a preliminary matter, we must determine whether the

inmates’ claims are moot because “a federal court has

neither the power to render advisory opinions nor to decide

questions that cannot affect the rights of litigants in the

case before them.” Preiser v. Newkirk, 422 U.S. 395, 401

(1975) (quotations omitted); see also Abdul-Akbar v.

Watson, 4 F.3d 195, 206 (3d Cir. 1993). An inmate’s

transfer from the facility complained of generally moots the

21. As noted, we interpret the October 2001 policy to permit inmates to

exchange religious or legal materials.

22. At oral argument on March 6, 2002, both parties agreed that no

issues of material fact remain.

16

equitable and declaratory claims. Abdul-Akbar, 4 F.3d at

197 (former inmate’s claim that the prison library’s legal

resources were constitutionally inadequate was moot

because plaintiff was released five months before trial). But

these claims are not mooted when a challenged action is (1)

too short in duration “to be fully litigated prior to its

cessation or expiration”; and (2) “there [is] a reasonable

likelihood that the same complaining party would be

subjected to the same action again.” Id. at 206; see also

Mesquite v. Aladdin’s Castle Inc., 455 U.S. 283, 298 n.10

(1982). When there is a voluntary cessation of a policy, a

claim will not be rendered moot if there remains the

possibility that plaintiffs will be disadvantaged “in the same

fundamental way.” Northeastern Fla. Chapter of Assoc. Gen.

Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662

(1993). Instead, the dismissal of an action on mootness

grounds requires the defendant to demonstrate that “there

is no reasonable expectation that the wrong will be

repeated.” Id. (quotation omitted); see also United States v.

W.T. Grant Co., 345 U.S. 629, 633 (1953) (discussing

several factors, including “bona fides of expressed intent to

comply, effectiveness of discontinuance, and, in some

cases, character of past violations”).

Here, none of the plaintiffs remains confined at SCI-

Camp Hill, and class action status has not been sought.

Wise and Sutton have been provided with the specific

Nation of Islam books requested, and Walker has been

released from prison. Since October 5, 2001, a new SMU

policy has been in effect allowing inmates access to “any

combination of personal property” that can fit into one

records center box.23 We are satisfied this one-box policy

will not be rescinded based on the representations of the

Department of Corrections made before us on March 6,

2002. Furthermore, there are strong administrative

incentives making it unlikely that the new policy will be

reversed.24 We conclude plaintiffs no longer present a

justiciable claim for declaratory and injunctive relief.

23. This policy is similar to one of plaintiffs’ prior proposals.

24. Indeed, plaintiffs themselves recognized these incentives, stating “the

primary impact . . . eliminating the rules restricting inmate access to

religious books would have on guards and prison resources would be to

reduce the amount of time and resources prison officials spend making

decisions on whether books are ‘religious’ and whether they are

particular inmates’ ‘main holy book.’ ”

17

But plaintiffs’ damages claims are still extant. As noted,

under the now-defunct SMU policy, SMU inmates in Phases

IV and V were allowed access to one box of legal materials

and a Bible, Qur’an or equivalent only. In Phase III, SMU

inmates were allowed legal materials, a Bible, Qur’an or

equivalent, as well as “[two] other religious reading

materials (total [three]).” In Phase II, SMU inmates were

allowed legal materials, a Bible or Qur’an, and “[four] other

religious materials.”25 But even though the prior SMU policy

permitted access to additional “religious materials,”

plaintiffs were repeatedly denied access to Nation of Islam

texts over a period of several years while SMU policy

changes were being implemented. As noted, plaintiffs were

not allowed access to books by Elijah Muhammad, among

others, because prison officials determined they were not

religious. Hence, plaintiffs’ claims for damages remain

despite their transfer out of the SMU and the recent policy

changes.

B.

We now turn to defendants’ contention that

Commissioner Horn and Father Menei were not personally

involved in the complained-of actions and are thus entitled

to judgment in their favor.26 Under our cases, “[a] defendant

in a civil rights action must have personal involvement in

the alleged wrongs” to be liable. Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988). Here, there is no evidence

that Commissioner Horn had any personal involvement in

the application to plaintiffs of the challenged policies.

Therefore, any damage claims against Commissioner Horn

were properly dismissed. We find otherwise with respect to

Father Menei. On July 4, 1994, Father Menei received from

Sutton a letter, styled “Final Appeal of Grievance #94-

0768,” complaining that Imam Rasheed and Reverend

Smith had denied him access to the Nation of Islam texts,

pointing out that Imam Rasheed was a Sunni Muslim and

25. In Phase I, inmates were returned to their “designated institutions”

and allowed general population privileges.

26. Defendants do not raise this argument with respect to the other

individual defendants.

18

not an adherent of the Nation of Islam, and requesting

access to the Nation of Islam material. Father Menei

referred the matter to Reverend Smith, and, on the basis of

Reverend Smith’s memorandum (quoted supra), Father

Menei wrote to Sutton denying his appeal because “[w]e

have determined the books are not essentially religious in

nature.” He continued on to say “these books smack of

racism and hatred, and I know of no God that wants us to

worship him in this way.” Because Father Menei appears to

have played an active role, he was not entitled to summary

judgment on the grounds that he was not personally

involved.

C.

We now address the merits of plaintiffs’ free exercise

claim that the Department of Corrections’ prior regulations

were unconstitutional, both as applied and facially.

Plaintiffs, members of the Nation of Islam, allege that “they

were unlawfully denied ‘access to religious literature

contained within [their] personal property while confined in

the SMU at Camp Hill,’ and, consequently, ‘defendants

prevented plaintiffs from practicing a central tenet of their

faith.’ ” Sutton, No. 97-7906, at 1-2 (citation omitted).

Defendants claim no constitutional violation occurred

because there was a rational connection between the prison

rules and a legitimate governmental interest in

rehabilitation and security under Turner v. Safley, 482 U.S.

78 (1987).27

27. Defendants also contend that they are protected by qualified

immunity from the damages claim. Prior to addressing that contention,

however, we must first conclude that plaintiffs have alleged or evinced

the violation of a constitutional right. Wilson v. Layne, 526 U.S. 603, 609

(1999) (“A court evaluating a claim of qualified immunity ‘must first

determine whether the plaintiff has alleged the deprivation of an actual

constitutional right at all, and if so, proceed to determine whether that

right was clearly established at the time of the alleged violation.’ ”)

(quoting Conn v. Gabbert, 526 U.S. 286 (1999)); Jones v. Shields, 207

F.3d 491 (8th Cir. 2000) (treating the “must” language in Wilson as

mandatory); Kitzman-Kelley v. Warner, 203 F.3d 454, 457 (7th Cir. 2000)

(same); Hartley v. Parnell, 193 F.3d 1263, 1270-71 (11th Cir. 1999)

(same); B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1265-66 (9th

19

Before commencing the requisite Turner inquiry, we must

first determine whether plaintiffs’ request for the Nation of

Islam texts stemmed from a constitutionally protected

interest. DeHart v. Horn, 227 F.3d 47, 52 (3d Cir. 2000) (en

banc) (explaining that if a prisoner’s request is “not the

result of sincerely held religious beliefs, the First

Amendment imposes no obligation on the prison to honor

that request, and there is no occasion to conduct the

Turner inquiry”). The Free Exercise Clause of the First

Amendment provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the

free exercise thereof . . . .” U.S. CONST. amend. I. Only

beliefs which are both “sincerely held”28 and “religious in

nature” are protected under the First Amendment. DeHart,

227 F.3d at 52. Purely secular views are not protected.

Frazee v. Ill. Dept. of Employment Sec., 489 U.S. 829, 833

(1989) (“There is no doubt that only beliefs rooted in

religion are protected by the Free Exercise Clause . . . .”)

(quotation and citation omitted).

It is often difficult to determine whether a proffered

viewpoint is in fact “religious” or “secular” in nature.29

Cir. 1999) (same). Other circuits have treated the “must” language in

Wilson as describing what the courts ordinarily should do, rather than

as a command. See Kalka v. Hawk, 215 F.3d 90, 95 (D.C. Cir. 2000)

(treating Conn and Wilson as “not always requiring” federal courts to

dispose of the constitutional claim before upholding a qualified immunity

defense and assuming that “humanism” was a religion protected under

the First Amendment before holding that federal prison officials were

shielded by qualified immunity); Horne v. Coughlin, 191 F.3d 244, 246-

47 (2d Cir. 1999) (discussing the doctrine of judicial restraint and

observing that “where there is qualified immunity, a court’s assertion

that a constitutional right exists would be pure dictum . . . .”).

We believe that the Supreme Court directive in Wilson v. Layne is

mandatory. Accordingly, the District Court can decide the issue of

qualified immunity only after it has concluded that a cause of action has

been stated. Therefore, we initiate our inquiry by examining whether

plaintiffs have alleged a constitutional violation.

28. The District Court found that plaintiffs sincerely believed in the

teachings of the Nation of Islam, and defendants do not contest this.

Sutton, No. 97-7096, at 5-6.

29. For a helpful discussion of the problems associated with defining the

term “religion,” see generally John Garvey & Frederick Schauer, The First

20

Nonetheless, we have tried our hand at defining “religion.”

See Africa v. Commonwealth of Pennsylvania, 662 F.2d

1025, 1030 (3d Cir. 1981) (describing three indicia of

religion).30 The Supreme Court has provided some guidance

on this question in Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah, 508 U.S. 520, 531 (1993) (concluding

that Santeria, a hybrid African/Catholic faith mandating

animal sacrifice, was a “religion” meriting First Amendment

protection based partly on the “historical association

between animal sacrifice and religious worship”). In

Hialeah, the Court reasoned:

The city does not argue that Santeria is not a “religion”

within the meaning of the First Amendment. Nor could

it. Although the practice of animal sacrifice may seem

Amendment: A Reader 595-96 (2d ed. 1996):

We cannot apply the free exercise clause without understanding the

meaning of its terms. The most difficult problems have concerned

the meaning of the term “religion.” This is an interpretative problem

like the meaning of the word “speech” in the free speech clause. The

First Amendment singles out some activities for special treatment,

and leaves the rest to the weaker protection of the due process

clause. It is thus very important to determine exactly what is

covered.

The increasing religious diversity of the United States makes this

job much harder than it once was. Many free exercise claimants will

not belong to well known denominations within the Judeo-Christian

tradition . . . . It is difficult to find a common thread running

through all these claims. To take only the most obvious example,

many (like Buddhists) do not believe in God . . . . The First

Amendment should not favor western religions, or traditional

religions, over others. But neither can it extend protection to

everyone who wants it. That would invite false claims for special

treatment. It would also dilute the strength of the free exercise

clause.

See also Kent Greenawalt, Religion as a Concept in Constitutional Law,

72 CAL. L. REV. 753 (1984).

30. These indicia included: (1) an attempt to address “fundamental and

ultimate questions” involving “deep and imponderable matters”; (2) a

comprehensive belief system; and (3) the presence of formal and external

signs like clergy and observance of holidays. Id.

21

abhorrent to some, “religious beliefs need not be

acceptable, logical, consistent, or comprehensible to

others to merit First Amendment protection.” Thomas

v. Review Bd. of Indiana Employment Security Div., 450

U.S. 707, 714, 67 L. Ed. 2d 624, 101 S. Ct. 1425

(1981). Given the historical association between animal

sacrifice and religious worship, petitioners’ assertion

that animal sacrifice is an integral part of their religion

“cannot be deemed bizarre or incredible.” Frazee v.

Illinois Dept. of Employment Security, 489 U.S. 829,

834 n.2, 109 S.Ct. 1514 (1989). Neither the city nor

the courts below, moreover, have questioned the

sincerity of petitioners’ professed desire to conduct

animal sacrifices for religious reasons. We must

consider petitioners’ First Amendment claim.

Hialeah, 508 U.S. at 530 (citations omitted).

We too “must consider” plaintiffs’ First Amendment

claim. Nation of Islam Muslims believe in the teachings of

the “One God whose proper Name is Allah,” as they are

contained in the Holy Qur’an, the Scriptures of all the

Prophets of God, and the Bible. The Nation of Islam Online,

available at http://www.noi.org (last visited Aug. 5, 2002).

They believe that Allah (God) appeared in the person of

Master W. Fard Muhammad in July 1930 and that Fard

Muhammad is the long-awaited “Messiah” of the Christians

and the “Mahdi” of the Muslims. Id. The official Nation of

Islam website states that members want to establish a

separate territory where black people can live independently

and “believe the offer of integration is hypocritical and is

made by those who are trying to deceive the black peoples

into believing that their 400-year-old open enemies of

freedom, justice and equality are, all of a sudden, their

‘friends.’ ” Id. The central and foundational tenets of the

Nation of Islam meet the definition of religion as set forth in

Hialeah and Africa. Furthermore, we cannot say they are

“so bizarre, so clearly nonreligious in motivation, as not to

be entitled to protection under the Free Exercise Clause.”

Thomas, 450 U.S. at 715. Therefore, we conclude that

plaintiffs’ sincerely-held views are sufficiently rooted in

religion to merit First Amendment protection.

22

But “the constitutional rights that prisoners possess are

more limited in scope than the constitutional rights held by

individuals in society at large.” Shaw v. Murphy, 532 U.S.

223, 229 (2001) (quoting Pell v. Procunier, 417 U.S. 817,

822 (1974)); see also Waterman v. Farmer, 183 F.3d 208,

213 (3d Cir. 1999) (prisoners’ constitutional rights “are

necessarily limited”). As we recently observed,

“incarceration almost always results in a narrowing, not a

broadening, of constitutional protections.” Fraise v.

Terhune, 283 F.3d 506, 515 n.5 (3d Cir. 2002). Although

prison walls “do not form a barrier separating prison

inmates from the protections of the Constitution,” inmates’

First Amendment rights “must in some respects be limited

in order to accommodate the demands of prison

administration and to serve valid penological objectives.” Id.

at 515 (quoting Turner, 482 U.S. at 84).

The Supreme Court has established that regulations

reasonably related to legitimate penological interests

generally pass constitutional muster. See Turner, 482 U.S.

at 84; O’Lone v. Shabbaz, 482 U.S. 342 (1987). Under

Turner, we must weigh four factors in making this

determination:

first, whether the regulation bears a “valid, rational

connection” to a legitimate and neutral governmental

objective; second, whether prisoners have alternative

ways of exercising the circumscribed right; third,

whether accommodating the right would have a

deleterious impact on other inmates, guards, and the

allocation of prison resources generally; and fourth,

whether alternatives exist that “fully accommodate[ ]

the prisoner’s rights at de minimis cost to valid

penological interests.”

Fraise, 283 F.3d at 513-14 (quoting Turner, 482 U.S. at 89);

see also Wolf v. Ashcroft, 297 F.3d 305, 310 (3d Cir. 2002)

(discussing Turner in the context of a prison policy

providing that no movies rated R, X, or NC-17 may be

shown to inmates); Waterman, 183 F.3d at 212

(“Constitutional challenges to laws, regulations, and

policies governing prison management must be examined

under the framework of Turner v. Safley . . . .”).

23

Under the first Turner prong, we accord great deference

to the judgments of prison officials “charged with the

formidable task of running a prison.” O’Lone, 482 U.S. at

353; see also Shaw, 532 U.S. at 230 (“[U]nder Turner and

its predecessors, prison officials are to remain the primary

arbiters of the problems that arise in prison management”)

(quoting Martinez, 416 U.S. at 405 (“ ‘[C]ourts are ill

equipped to deal with the increasingly urgent problems of

prison administration and reform.’ ”)). The first factor is

“foremost in the sense that a rational connection is a

threshold requirement — if the connection is arbitrary or

irrational, then ‘the regulation fails, irrespective of whether

the other factors tilt in its favor’ . . . But, as we made clear

in DeHart, we do not view it as subsuming the rest of the

inquiry.” Wolf, 297 F.3d at 310 (quoting Shaw, 532 U.S. at

229-30); see also DeHart, 227 F.3d at 52 (examining

whether a prison regulation prohibiting a Buddhist inmate

from following a vegetarian diet was justified by “legitimate

and neutral concerns” under Turner).

The first Turner factor requires a “multifold” analysis: “we

must determine whether the governmental objective

underlying the regulations at issue is legitimate and

neutral, and that the regulations are rationally related to

that objective.” Thornburgh v. Abbott, 490 U.S. 401, 414-15

(1989). Where “prison administrators draw distinctions

between publications solely on the basis of their potential

for prison security, the regulations are ‘neutral’ in the

technical sense in which [the Supreme Court] meant and

used the term in Turner.” Id. at 415-16.

In this case, the prior version of DC-ADM 802 provided

that inmates in restrictive status could have “no books

other than legal materials and a personal Bible, Holy Koran

or other religious equivalent.” Similarly, DC-ADM 801

provided: “inmates will be permitted legal material that may

be contained in one (1) records center box . . . . A personal

Bible, a Holy Koran, or equivalent publication is permitted.”

As an inmate progressed to Phases III and II, additional

religious texts were permitted.

Defendants assert the prior Department of Corrections

policy of allowing prisoners in SMU Phases IV and V access

to one box of legal materials and one Bible, Qur’an or

24

“equivalent” religious publication was rationally related to

the penological goals of “maintaining a secure environment

in the SMU (both concerning searches of cells and fire

safety) and as an integral part of a global, behavior-driven

program to encourage the most recalcitrant prisoners in the

system to engage in more responsible and acceptable

behavior.” Defendants contend that, to the extent some of

those inmates are religious, conditioning increased access

to religious material on improved behavior served as an

incentive for the desired behavior change because, once

returned to the general prison population, the inmates

would re-gain access to additional religious books. As the

District Court found, “[t]he limit on the number of books in

an SMU cell or the number of religious materials in general

was just another incentive to improve the behavior of

prisoners who behaved badly.” Sutton, No. 97-7096, at 13.

Plaintiffs contend that defendants’ “book ban” was

“fundamentally irrational” because under these policies,

essential Nation of Islam texts “were completely banned

from all levels of the SMU, it did not matter how well

plaintiffs behaved.” In addition, they contend the ban was

clearly “not neutral, and it was made only because of the

content of the expression . . . . according to defendants, the

books were ‘not religious’ and plaintiffs could not have

them.”

As noted, the prior Department of Corrections policy

provided only that Phase V and Phase IV inmates could

have a: “Bible, Quran, or equivalent.” Once an inmate

“graduated” from Phase IV to Phase III, he was entitled to

“two additional religious texts”; in Phase II, “four additional

religious texts”; and in Phase I (general population), no

restrictions. Because the prison authorities found Nation of

Islam texts “not religious,” none were permitted at Phases

II through V.

We need not address the facial challenge because in

applying the policy, the Department of Corrections

interfered with the free exercise of religion. The prison

administrators impermissibly denied access to Nation of

Islam materials because they improperly found the

documents were not religious. On this point, the facts are

25

not in dispute.31 It is difficult, therefore, to discern a

legitimate penological interest in the denial of Nation of

Islam texts to plaintiffs. Notwithstanding defendants’

arguments and the deference we accord the judgment of

prison officials, on balance, we believe that defendants

cannot satisfy the first Turner prong.

The second Turner prong requires “a court to assess

whether inmates retain alternative means of exercising the

circumscribed right . . . . When assessing the availability of

alternatives, the right in question must be viewed ‘sensibly

and expansively.’ ” Fraise, 283 F.3d at 518. The second

factor is not “intended to require courts to determine

whether an inmate’s sincerely held religious belief is

sufficiently ‘orthodox’ to deserve recognition.” DeHart, 227

F.3d at 55. Under this factor, “we must of course focus on

the beliefs of the inmate asserting the claim. It is obviously

impossible to determine whether a regulation leaves an

inmate with alternative ways of practicing the inmate’s

religion without identifying the religion’s practices.” Fraise,

283 F.3d at 518.

Here, the inmates in question are adherents of various

Nation of Islam sects.32 Nation of Islam members follow

teachings contained in the “the Holy Qur’an, the Scriptures

of all the Prophets, and in the Holy Bible.” The Nation of

Islam Online, available at http://www.noi.org (last visited

31. Imam Rasheed, while acknowledging that members of the Nation of

Islam view themselves as Muslims, nonetheless concluded that the

books were not “Islamic,” because they did not comport with what he

deemed the orthodox conception of Islam. Reverend Smith, beginning

from the view that “[r]eligion, by definition, begins and ends with the

search for and discovery of God,” concluded “these books are not

essentially religious in nature” because they referenced racial superiority

and political activism. Father Menei echoed this view when he wrote that

“these books smack of racism and hatred, and I know of no God that

wants us to worship in this way.”

We express no opinion on the restriction of religious materials that

might advocate violence.

32. Sutton is a member of a Nation of Islam sect led by Minister

Farrakhan, Wise is a member of the Lost-Found Nation of Islam, Inc.,

and Walker is a member of both.

26

Aug. 5, 2002). Plaintiffs’ expert stated in her uncontradicted

deposition testimony that the Nation of Islam books

requested and denied were “essential religious texts of the

Nation of Islam” and “required reading by the faithful,” and

that without them, “a person could not function well in the

Nation of Islam’s religious community.” Consequently,

plaintiffs contend that, under the prior policy, the “only

form of religious expression available to plaintiffs and other

members of the Nation of Islam is individual prayer in their

cells, without the essential books to teach them how to

pray.”

This Court has held that in a free exercise case, we must

consider whether the inmate has “alternate means of

practicing his or her religion generally, not whether [the]

inmate has alternative means of engaging in [any]

particular practice.” DeHart v. Horn, 227 F.3d 47, 55 (3d

Cir. 2000) (en banc). In DeHart, we overruled the analysis

in Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), that

focused on “ ‘the centrality of the religious tenet’ at issue

and distinguished between ‘religious commandments’ and

‘positive expression of belief,’ suggesting that ‘the

importance of alternative means of religious observance is

an irrelevant consideration’ when the practice in question is

a commandment.” 227 F.3d at 54. We then said:

Thus, under Johnson where the religious practice

being prohibited by the prison is commanded by the

believer’s faith, the existence of other opportunities for

exercising one’s religious faith is wholly irrelevant to

the analysis. The “religious commandment”/“positive

expression of belief ” distinction on which the panel in

Johnson relied, however, directly conflicts with the

Supreme Court’s analysis in O’Lone. The Court there

expressly held that, although attendance at Jumu’ah

was a requirement of the respondents’ religion (i.e., a

“religious commandment”), because other means of

practicing their religion were available, the second

Turner factor weighed in favor of the relevant

restriction’s reasonableness. Recognition that a

particular practice is required by an inmate’s religion,

thus, does not end this portion of the analysis. Rather,

as the Supreme Court made clear in O’Lone and

27

Thornburgh, courts must examine whether an inmate

has alternative means of practicing his or her religion

generally, not whether an inmate has alternative

means of engaging in the particular practice in

question. . . . In this case, the record shows that, while

the prison’s regulations have prohibited DeHart from

following a diet in conformity with his religious beliefs,

he has some alternative means of expressing his

Buddhist beliefs.

Id. at 55, 57.

We also said that where “other avenues remain available

for the exercise of the inmate’s religious faith, courts should

be particularly conscious of the measure of judicial

deference owed to correction officials. . . .” Id. at 59

(quoting Turner, 482 U.S. at 90) (internal quotations

omitted).

Here, while the plaintiffs had access to the Bible and

Qur’an, and could pray in their cells and celebrate

Ramadan and other religious holidays, they were deprived

of texts which provide critical religious instruction and

without which they could not practice their religion

generally.33 In so concluding, we are mindful of DeHart’s

33. The crucial religious significance of the writings that plaintiffs were

foreclosed from reading is made plain by the expert report and

deposition testimony of plaintiffs’ expert, Dr. Aminah Beverly McCloud,

an Assistant Professor in DePaul University’s Department of Religious

Studies. Professor McCloud, a specialist in Islamic studies, had this to

say in her expert report:

8. The Nation of Islam is a religious community founded by Wali

Fard Muhammad and developed by Elijah Muhammad. Within

the Nation of Islam, Allah is God, Fard Muhammad is the

Messiah, and Elijah Muhammad is a prophet. The teachings of

Fard Muhammad and Elijah Muhammad are essential

components of the religious beliefs and practices of the Nation

of Islam.

9. Minister Louis Farrakhan is the religious leader of a

prominent branch of the Nation of Islam. Like the teachings of

Fard Muhammad and Elijah Muhammad, the teachings of

Minister Farrakhan are an essential component of the religious

beliefs and practices of this branch of the Nation of Islam.

28

proscription against drawing distinctions between “religious

commandments” and “positive expressions of belief ” in

determining what religious practices may be curtailed by

prison officials, and we do not here treat the reading of

10. I am familiar with Elijah Muhammad’s books entitled The

Supreme Wisdom, Message to the Blackman in America, Our

Savior Has Arrived, How to Eat to Live and The Fall of America.

It is my considered opinion that all of these publications are

“religious” in nature. Indeed, all of Fard Muhammad’s and

Elijah Muhammad’s teachings and writings are essential to the

worldview of members of the Nation of Islam, and are

undeniably religious to members of that community.

11. I am also familiar with the periodicals entitled Muhammad

Speaks and The Final Call. These publications are also

“religious” in nature.

12. Professor C. Eric Lincoln refers to two of the above religious

publications on page 129 of the 1994 edition of his

authoritative treatise, The Black Muslims in America:

In a book entitled Message to the Blackman (first

published in 1965), [Elijah] Muhammad spelled out the

essential doctrines of Black Islam as taught him by Fard,

with his own elaborations. Message to the Blackman is

required reading by the faithful, and it has found its way

into the homes and libraries of non-Muslims. Since proper

diet is a key aspect of Muslim commitment, Message was

logically followed by a volume entitled How to Eat to Live,

also by [Elijah] Muhammad. Together, these two books refine

and extend the doctrines laid down in The Supreme Wisdom.

13. I agree with Professor Lincoln’s characterization of The

Supreme Wisdom, Message to the Blackman and How to Eat to

Live as essential religious texts of the Nation of Islam. Our

Savior Has Arrived, The Fall of America, Muhammad Speaks

and The Final Call are also essential religious texts of the

Nation of Islam.

14. For followers of Minister Farrakhan within the Nation of

Islam, his writings are likewise essential religious texts.

15. Without these materials, a person could not function well in

the Nation of Islam’s religious community. To borrow Professor

Lincoln’s phrase, they are “required reading by the faithful.”

On deposition the following colloquy was had:

Q. Does the Nation of Islam have what you refer to as inspired

text?

29

these texts as religious commandments, but rather as a

necessary element of exercising the right in question viewed

“sensibly and expansively”: the right to free exercise of the

Nation of Islam faith.

We are also mindful of this Court’s holding in Fraise v.

Terhune, 283 F.3d 506 (3d Cir. 2002). There, this court

said: “While the STG Policy forbids possession of

distinctively Five Percent Nation literature, it is undisputed

that the Policy allows inmates to possess, study, and

discuss the Bible and the Koran. Accordingly, study of the

Five Percent Nation’s teachings is only partially restricted.”

Id. at 519. However, although Fraise refers to testimony

identifying certain texts — The 120 Degrees, Supreme

Mathematics, and Supreme Alphabet — which, like the Bible

and the Qur’an, contain Five Percent teachings, id. at 511,

nothing in Fraise purports to identify these or other items

of “distinctively Five Percent literature” as having the

sacrosanct and fundamental quality which the writings of

the prophet, Elijah Muhammad, or the writings of Minister

Farrakhan, have for members of one or another sect of the

Nation of Islam. Those writings are, as plaintiffs’ expert

Professor Aminah Beverly McCloud explained, “not just the

words of Elijah Muhammad or Louis Farrakhan. They are

the words of Elijah Muhammad and Louis Farrakhan as

inspired by God.”34

In O’Lone, the Supreme Court held that the proper

analysis of the second Turner prong required the Court not

to determine if the inmates had alternative means to

A. Yes. I would classify this set of texts as both scriptural and

inspired because the members believe that these are not just

the words of Elijah Muhammad or Louis Farrakhan. They are

the words of Elijah Muhammad and Louis Farrakhan as

inspired by God.

Q. Okay. Are Elijah Muhammad’s books religious both for Silas

Muhammad’s group based in Atlanta and Louis Farrakhan’s

group based in Chicago?

A. Oh, yes.

34. See note 33, supra.

30

celebrate Jumu’ah, but rather whether they had alternative

means to practice their religion in general. Because they

teach adherents the proper way to pray and are viewed as

divinely inspired, however, deprivation of the Nation of

Islam texts in question here implicates not just the right to

read those particular texts, but the prisoners’ ability to

practice their religion in general. To illustrate this principle,

while we believe that a Christian inmate could practice his

religion generally even if prevented from attending

Christmas or Easter services, we do not believe he could

practice his religion if deprived of access to the Bible. The

distinction in this example is not between religious

commandments and positive expressions of belief, but

between the deprivation of a single aspect of religious

worship and the removal of any ability to undertake the free

exercise of the Christian religion generally.35

For example, had the plaintiff-inmates been Mormons, we

do not think that prison authorities, in furtherance of a

program of behavior modification, could, compatibly with

the Constitution, have restricted the inmates’ religious

reading to the Old and New Testaments, withholding the

inmates’ own copies of The Book of Mormon.36 There can be

no fault line in the Constitution that would place the

followers of Jesus Christ and Joseph Smith on the

preferred side of the line and the followers of Elijah

Muhammad and Louis Farrakhan on the other side.

Therefore, because the original SMU policy deprived the

plaintiffs of texts without which they could not practice

their religion generally, we conclude that the second Turner

prong favors the plaintiffs.

35. By the use of this example, we do not mean to imply that the

deprivation of texts, as opposed to restrictions on religious practices, is

more likely to mean that a prisoner cannot practice his religion

generally. For example, we suspect that a complete prohibition on a

Catholic’s ability to attend Mass would mean a deprivation of his right

to practice his religion generally, much as we would draw that

conclusion about a regulation barring the inmate’s access to the Bible.

36. The Book of Mormon is “accepted as holy scripture, in addition to the

Bible, in the Church of Jesus Christ of Latter-day Saints and other

Mormon churches.” 8 New Encyclopaedia Britannica 329.

31

The final two Turner factors also favor plaintiffs. “The

third and fourth factors . . . focus on the specific religious

practice or expression at issue and the consequences of

accommodating the inmate for guards, for other inmates,

and for the allocation of prison resources.” DeHart, 227

F.3d at 57.37 Here, the consequences of accommodation

appear de minimis and would not have a deleterious impact

on prison personnel or resources. The Department of

Corrections itself obviously did not consider the

consequences of accommodation burdensome because they

have changed their policy and adopted a policy similar to

what plaintiffs sought. Prison resources are more efficiently

allocated now because the one-box rule no longer requires

prison administrators to make repeated individualized

decisions about what are “religious” texts.

In sum, each of the four Turner factors — the existence

of a legitimate and neutral government objective with

regulations rationally related to that objective; whether

there are alternative means of exercising the circumscribed

right; the specific religious practice at issue; and the

consequences of accommodating the inmate — weigh in

favor of the plaintiffs’ claim. For these reasons, we hold

that, as applied to plaintiffs, the prior policy was

constitutionally infirm under Turner.

D.

But this does not end our analysis. We must also

consider whether defendants are protected under the

doctrine of qualified immunity.38 Wilson, 536 U.S. at 609.

Government officials performing discretionary functions,

“generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

constitutional rights of which a reasonable person would

have known.” Abdul-Akbar, 4 F.3d at 201-02 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982)). The right

allegedly violated must be defined at the appropriate level of

37. Unlike Fraise, defendants concede the books at issue pose no

security risks. Sutton, No. 97-7096, at 1.

38. Defendants were sued in their official and individual capacities.

Sutton, No. 97-7096, at 1.

32

specificity before a court can determine if it was “clearly

established.” Wilson, 536 U.S. at 615; see also Abdul-

Akbar, 4 F.3d at 202 (quoting Good v. Dauphin County Soc.

Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir.

1989) (explaining that the contours of the right must be

sufficiently clear for “reasonable officials in the defendant’s

position at the relevant time [to] believe[ ], in light of what

was in the decided case law, that their conduct would be

unlawful”)).

In this case, we must address defendants’ claims of

qualified immunity as they relate to damages claims

asserted against them on the basis of their actions under

the prior SMU policy and predicated upon decisions that

Nation of Islam texts were “not religious.”

The law in this area is murky. There has not always been

a clear consensus whether the Nation of Islam is a religion

for purposes of protection under the First Amendment. See,

e.g., Cooper, 855 F.2d at 127 (applying O’Lone and rejecting

free exercise claims of Nation of Islam plaintiffs seeking to

engage in group prayer); Long v. Parker, 390 F.2d 816, 819-

20 (3d Cir. 1968) (describing the “Black Muslim” movement

as “an alleged sect of the religion of Islam” and observing

that it “cannot be classified as purely religious in nature,”

in part because the “inexorable hatred of white people” is a

basic part of the faith) (quotation omitted);39 Cooper v. Pate,

382 F.2d 518, 523 (7th Cir. 1967) (“Viewed as ordinary

39. We do not agree with plaintiffs that Long “clearly established” a free

exercise right that has been violated in this case, in part because Long

was decided more than a decade before either Turner or O’Lone, two

Supreme Court cases narrowing the scope of constitutional protection

afforded inmates. In Long, we considered the claims of “Black Muslim”

inmates contending they had been “unconstitutionally denied the right to

receive and read authoritative publications of their religious sect,

including the weekly newspaper ‘Muhammad Speaks.’ ” Id. at 822.

Access to this publication was restricted because of its alleged

inflammatory nature. Id. We assumed without deciding that plaintiffs

were entitled to the protections of the First Amendment because

defendants did not challenge the legitimacy of treating Black Muslim

beliefs as a religion. Id. at 819-820. After examining the inmates’ claims,

we required a hearing on the religious significance of “Muhammad

Speaks.” Id. at 822.

33

reading matter, with only slight relevance to religion, it

would be most difficult to establish that exclusion of any

[publications containing articles by Elijah Muhammad]

from a prison is unlawful. Considered as religious material,

one question would be whether material of the same degree

of religious relevance is permitted prisoners of other faiths.

And the extent or tone with which the race doctrine of this

particular faith is emphasized would, we think, be a

legitimate consideration.”); see generally Right to Practice

Black Muslim Tenets in State Prisons, 75 HARV. L. REV. 837,

837 40 (1962).

Nor have the courts always provided clear guidance on

the question of what restrictions on prisoners’ rights pass

constitutional muster. See, e.g., Hudson v. Palmer, 468 U.S.

517, 523-34 (1984) (“[C]onstraints on inmates, and in some

cases the complete withdrawal of certain rights, are

justified by the considerations underlying our penal system

. . . .”); Canedy v. Boardman et al, 91 F.3d 30, 34 (7th Cir.

1996) (“But in 1992, the time of the events in question

here, it was not at all clear that [plaintiff ’s interest in

observing Islam’s nudity taboos] decisively outweighed [the

interests] of the prison.”); Wilson v. Prasse, 463 F.2d 109,

111 (3d Cir. 1972) (“The question of the distribution of

Muslim literature [including the writings of Elijah

Muhammad] among prison populations is not free from

difficulty.”); Cooper, 855 F.2d at 129 (“While plaintiffs

invoke the highest principles of our law, they are dangerous

persons who even among inmates convicted of the most

serious offenses were singled out for special security

treatment . . . . Clearly, there is a valid, rational reason for

not permitting plaintiffs to establish an infrastructure

within the [restrictive custody unit] and have it openly

function merely because plaintiffs claim a right to engage in

their activities on the basis of their religion.”) (citing O’Lone,

482 U.S. at 342); Knuckles v. Prasse, 302 F.Supp. 1036,

1050 (E.D. Pa. 1969) (Higginbotham, J.) (“Since the [Black

Muslim] literature could be subject to inferences urging

[defiance of whites] . . . I rule that it is not necessary that

the prison authorities make available to prisoners the

writings”), aff ’d 435 F.2d 1255 (3d Cir. 1970).40

40. Cf. Williams v. Lane, 851 F.2d 867, 878 (7th Cir. 1988) (examining

the rights of inmates in protective custody status, which is made

34

Accordingly, it is questionable whether the likely

invalidity of the application of the Department of

Corrections’ SMU policy was clearly established so that it

should have been apparent to defendants. Cf. Abdul-Akbar,

4 F.3d at 205 (“Indeed, if members of the judiciary cannot

reach a clear consensus regarding ‘[t]he contours of the

right’ . . . can we reasonably expect more from those who

are required to implement those rights?”) (citation and

quotation omitted); see also Kalka, 215 F.3d at 99 (“Given

the judiciary’s exceedingly vague guidance, in the face of a

complex and novel question, the actions of the defendants

therefore did not violate ‘clearly established’ law.”).

Furthermore, the first and second prongs of the Turner

analysis present close calls on these facts, especially in

light of the great deference we accord the judgments of

prison officials.

For these reasons, we hold that the defendants are

protected by qualified immunity from plaintiffs’ damages

claims.

available to inmates who fear for their own safety); McCabe v. Arave, 827

F.2d 634, 638 (9th Cir. 1987) (addressing a “ban” of Church Jesus

Christ Christian books touting white supremacy from a prison library

and holding “literature advocating racial purity, but not advocating

violence or illegal activity as a means of achieving this goal, and not so

racially inflammatory as to be reasonably likely to cause violence at the

prison, cannot be constitutionally banned as rationally related to

rehabilitation”); Murphy v. Mo. Dep’t of Corrections, 814 F.2d 1252, 1256

(8th Cir. 1987) (concluding that a total ban of Aryan Nations materials

“is too restrictive a mail censorship policy”); Rowland v. Jones, 452 F.2d

1005, 1006 (8th Cir. 1971) (“We reject as an intrusion of a prisoner’s

First Amendment rights the granting of possession of some [religious

medallions] and not others contingent upon their meeting an official

standard of religious orthodoxy.”); Walker v. Blackwell, 411 F.2d 23, 29

(5th Cir. 1969) (“The order is merely to direct that the warden not

arbitrarily deny Black Muslims the right to read [the “Muhammad

Speaks” newspaper], within the normal framework of prison rules and

regulations, administration and security.”); Sostre v. McGinnis, 334 F.2d

906, 911 (2d Cir. 1964) (“In other words the nub of this situation is not

to be found in the existence of theoretical rights, but in the very practical

limitations on those rights which are made necessary by the

requirements of prison discipline”).

35

IV.

Therefore, we will affirm the District Court’s entry of

summary judgment. Parties to bear their own costs.

36

SCIRICA, Circuit Judge, concurring:

Although I believe the revised Department of Corrections

policy represents the better practice and avoids potential

problems in the free exercise of an inmate’s religion, I

believe the prior policy was facially valid. But the prison

administrators impermissibly denied access to Nation of

Islam materials because they found, improperly in my view,

that the documents did not constitute religious material.

For this reason, I agree that the prior policy was

unconstitutional as applied.

I.

But it seems to me that under Turner v. Safley, 482 U.S.

78 (1987), the prison authorities promulgated a rational

and neutral policy, reasonably grounded on behavior

modification principles. Arguably, had the corrections

officials adopted a broader view of “religion,” the Nation of

Islam materials, at least, in Phases III and II would have

been permitted. And depending on whether the officials

considered Nation of Islam materials the equivalent of the

Bible or Qur’an, they could have been permitted at Phases

V and IV.

Under an expansive interpretation of what constitutes

religious materials, therefore, the prior policy arguably

could be rational and neutral, and reasonably grounded on

acceptable behavior modification principles. Department of

Corrections Regional Deputy Commissioner Dr. Beard

explained that this incentive-based program was developed

to improve upon traditional restrictive housing units which

were not programmed to address the needs of inmates with

a long-term inability to adjust to general population status.

To this end, the SMU “provide[d] structured progression

through five phases . . . . The program provide[d] security

for staff and inmates alike while giving the inmate an

incentive to progress through the phases of the program

. . . .” To the extent that some of those inmates were

religious, conditioning access to religious materials on

37

improved behavior might very well have served as a

powerful incentive for the desired change in behavior.1

Furthermore, the District Court found that “the SMU

rules were not created to target [Nation of Islam] members,

and the rules applied to each prisoner no matter what his

religion.” Sutton, No. 97-7096, at 12. It bears noting as well

that as the prisoner progressed through administrative

confinement, he regained other privileges besides access to

additional religious materials. For these reasons,

defendants have arguably demonstrated a “valid, rational

connection” to the “legitimate and neutral governmental

objective” of behavior modification. Cf. Thornburgh v.

Abbott, 490 U.S. 401, 414-15 (1989).

II.

I also believe that the second Turner prong favors

defendants. As the court notes, in a free exercise case, we

must consider whether the inmate has “alternate means of

practicing his or her religion generally, not whether [the]

inmate has alternative means of engaging in [any]

particular practice.” DeHart v. Horn, 227 F.3d 47, 55 (3d

Cir. 2000) (en banc). “When assessing the availability of

alternatives, the right in question must be viewed ‘sensibly

and expansively.’ ” Fraise, 283 F.3d at 518 (quoting DeHart,

227 F.3d 53-55). In DeHart, we overruled the analysis in

Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), that focused

on “ ‘the centrality of the religious tenet’ at issue and

distinguished between ‘religious commandments’ and

‘positive expression of belief,’ suggesting that ‘the

importance of alternative means of religious observance is

an irrelevant consideration’ when the practice in question is

a commandment.” 227 F.3d at 54. We then said:

Thus, under Johnson where the religious practice being

prohibited by the prison is commanded by the

1. As the District Court found, the SMU incentive-based program was

“very successful” because from “April 1992 to October 1993 of the 45

inmates admitted to the program 19 graduated to general population

status and only 3 of those had [to] be returned to the SMU.” Sutton, No.

97-7096, at 12.

38

believer’s faith, the existence of other opportunities for

exercising one’s religious faith is wholly irrelevant to

the analysis. The “religious commandment”/“positive

expression of belief ” distinction on which the panel in

Johnson relied, however, directly conflicts with the

Supreme Court’s analysis in O’Lone. The Court there

expressly held that, although attendance at Jumu’ah

was a requirement of the respondents’ religion (i.e., a

“religious commandment”), because other means of

practicing their religion were available, the second

Turner factor weighed in favor of the relevant

restriction’s reasonableness. Recognition that a

particular practice is required by an inmate’s religion,

thus, does not end this portion of the analysis. Rather,

as the Supreme Court made clear in O’Lone and

Thornburgh, courts must examine whether an inmate

has alternative means of practicing his or her religion

generally, not whether an inmate has alternative

means of engaging in the particular practice in

question. . . . In this case, the record shows that, while

the prison’s regulations have prohibited DeHart from

following a diet in conformity with his religious beliefs,

he has some alternative means of expressing his

Buddhist beliefs.”

Id. at 55, 57.

We further said that where “other avenues remain

available for the exercise of the inmate’s religious faith,

courts should be particularly conscious of the measure of

judicial deference owed to correction officials. . . .” DeHart,

227 F.3d at 59 (quoting Turner, 482 U.S. at 90) (internal

quotations omitted). The second factor is not “intended to

require courts to determine whether an inmate’s sincerely

held religious belief is sufficiently ‘orthodox’ to deserve

recognition.” DeHart, 227 F.3d at 55. Under this factor, “we

must of course focus on the beliefs of the inmate asserting

the claim. It is obviously impossible to determine whether

a regulation leaves an inmate with alternative ways of

practicing the inmate’s religion without identifying the

religion’s practices.” Fraise, 283 F.3d at 51.

In Fraise, we concluded the second Turner prong was

39

satisfied where inmates’ access to Five Percent2 literature

was only “partially restricted.” Id. at 519. The Fraise prison

regulations allowed New Jersey correctional officers to

designate security threat groups (STGs) and transfer core

members to a special unit where their ability to “study the

lessons” (a central Five Percent practice) was strictly

controlled for fear of gang violence linked with the group.

Id. Although Five Percenters were not allowed possession of

“distinctively Five Percent Nation literature,” they were still

permitted to “possess, study and discuss” the Bible and the

Qur’an. Id. We stated, “To be sure, the STG Policy restricts

the ability of Five Percenters to achieve [self-knowledge,

self-respect, responsible conduct or righteous living] by

following what the group may regard as the best avenue,

i.e., by studying and discussing doctrines and materials

distinctive to the Five Percent Nation. But alternative

avenues clearly remain open.” Id.

As the court notes, the inmates in question here are

adherents of various Nation of Islam sects.3 Plaintiffs’ expert

opined that the Nation of Islam Books requested were

“essential” to the practice of their religion. But alternative

means of worship were clearly available to the plaintiffs.

Even though plaintiffs were denied access to distinctly

Nation of Islam texts, they were still allowed access to the

Qur’an or Bible, like the Fraise inmates. As the District

Court found, Nation of Islam members in the SMU were

“permitted to exchange books, e.g., the Bible for the Koran

. . . . and [t]hey could celebrate religious holidays such as

Ramadan in the company of other prisoners.” Sutton, No.

97-7096, at 5. Thus, SMU inmates had access to the Bible,

Qur’an, or equivalent religious texts, and they could pray

2. The Five Percenters broke away from the Nation of Islam in the 1960s.

They believe in a “Supreme Mathematics.” The “Five Percent” includes

African Americans who have achieved self-knowledge. Fraise, 283 F.3d at

511. Five Percenters “reject[ ] belief in the transcendent and instead

focus[ ] on human enlightenment and conduct as ends in themselves.”

Id. at 518 (examining evidence of the Five Percenters beliefs and

practices as submitted by an editor of a Five Percent newspaper).

3. Sutton is a member of a Nation of Islam sect led by Minister

Farrakhan, Wise is a member of the Lost-Found Nation of Islam, Inc.,

and Walker is a member of both.

40

by themselves, speak with and be visited by religious

advisors, and celebrate religious holidays. Cf. Fraise v.

Terhune, 283 F.3d 506, 519-20 (upholding a prison policy

in an as-applied challenge where inmates in restrictive

custody were only “partially restricted” in their ability to

practice religion because “the policy allowed inmates to

possess, study and discuss the Bible and the Koran” and

did not restrict religious inmates from seeking “self-

knowledge” or “righteous living”). While the original SMU

policy undoubtedly imposed restrictions on the ability of

Nation of Islam members to engage in activities related to

the group, plaintiffs retained sufficient alternative means of

studying and practicing doctrines distinct to their religion.4

Cf. Fraise, 283 F.3d at 520. I see no principled distinction

here from the circumstances we faced in Fraise, which

found that sufficient alternative means of worship were

retained. Therefore, I believe the second Turner prong favors

defendants here.

In all other respects, I join the court’s opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

4. As noted, we said in DeHart, “[T]he Supreme Court made clear in

O’Lone and Thornburgh, courts must examine whether an inmate has

alternative means of practicing his or her religion generally, not whether

an inmate has alternative means of engaging in the particular practice

in question.” 227 F.3d at 55.