noting that the likelihood of being transferred back to an institution is a factual determination for the district court
How later courts described this case
- noting that the likelihood of being transferred back to an institution is a factual determination for the district court
- holding that prison’s concern that yarmulkes could be used by gangs as form of identification justified prohibition against wearing yarmulkes except in cells and during religious services
- concluding that past exposure to illegal conduct at a prior facility, without threat of repetition, did not present a pending case or controversy that might war- rant injunctive relief
- sustaining prison prohibition on wearing yarmulkes in prison’s general population where evidence showed that restrictions on headwear limited inmate gang identification in prison environment and yarmulkes were permitted during religious services and in cells
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring in part, dissenting in part, concurring in the outcome.
I agree that the case should be remanded for further findings as to mootness. If the case is moot, we have no basis for considering the injunctive relief provided by the district court. I would defer this merits discussion until another day. On the other hand, I agree that monetary relief is for the most part precluded by qualified immunity.
When an appropriate time comes for consideration of the injunctive issues, I would urge a more step-by-step approach than that pursued by the majority here. For example, I can see no valid objection to providing inmates with greater access to religious articles — prayer books, etc. Further, the district court is in a better position than we to gauge the intangibles surrounding prison policy toward religious practice, and we should be careful to accord that court its proper discretionary role.
To the extent indicated, therefore, I respectfully dissent.