# Petition for Writ of Certiorari — O'Leary v. Mack > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1354%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 801 ## Text ~ Supreme Court, vc am FILED 961598 APR 7 1997 No. Si a ee, IN THE Supreme Court of the United States OCTOBER TERM, 1996 MICHAEL O’LEARY, et al., Petitioners, Vv. JOHN MACK, Respondent. HOWARD A. PETERS, III, et al., Petitioners, Vv. JOHN LIPSCOMB-BEY, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR WRIT OF CERTIORARI JAMES E. RYAN Attorney General of Illinois BARBARA A. PREINER Solicitor General of Illinois RITA M. NOVAK* JAN E. HUGHES Assistant Attorneys General 100 West Randolph Street 12th Floor Chicago, Illinois 60601 (312) 814-5659 *Counsel of Record Attorneys for Petitioners = Printed by Authority of the State of Illinois (P.O. 36741—55—4-8-97) pt A ey EE See bane ~~ a i on alee = * QUESTION PRESENTED FOR REVIEW Section 2000bb-1 of the Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1) provides, in part, that “[gljov- ernment shall not substantially burden a person’s exer- cise of religion . . . .” The Seventh Circuit held that a substantial burden on the free exercise of religion “is one that forces adherents of a religion to refrain from reli- giously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs.” The question presented is: Does the Seventh Circuit’s definition of substantial bur- den, which conflicts with definitions formulated by other courts of appeals, improperly expand the application of the Religious Freedom Restoration Act, and is it particu- larly unworkable in the prison setting? PARTIES TO PROCEEDING Petitioners: MICHAEL O’LEARY, Deputy Director, Department of Corrections SALVADOR GODINEZ, former Warden, Stateville Correctional Center JEROME SPRINGBORN, Assistant Warden JAMES SCHOMIG, former Assistant Warden HOWARD A. PETERS, III, former Director, Depart- ment of Corrections GEORGE C. WELBORN, former Warden of Menard Correctional Center ALAN L. FRENTZEL, former Assistant Warden of Menard Correctional Center LEO HAYES, Chaplain Respondents: John Mack John Lipscomb-Bey iii TABLE OF CONTENTS QUESTION PRESENTED ................... PARTIES TO PROCEEDING ................ TABLE OF AUTHORITIES ................. Proceedings Relating to John Mack....... Proceedings Relating to John Lipscomb-Bey . Decision of the Court of Appeals ......... REASONS FOR GRANTING THE WRIT .... I, THE SEVENTH CIRCUIT’S DEFINITION OF “SUBSTANTIAL BURDEN” AS THAT TERM IS USED IN THE RELIGIOUS FREEDOM RESTORATION ACT CONFLICTS WITH OTHER CIRCUITS’ DEFINITIONS OF THE RUE Convouveseseeepesesvicnvetoadasvace Il. THE SEVENTH CIRCUIT’S DEFINITION OF “SUBSTANTIAL BURDEN” IMPROPERLY ExX- PANDS THE MEANING OF THE RELIGIOUS FREEDOM RESTORATION ACT AND IS UN- WORKABLE IN THE PRISON SETTING ..... BRR RRR SAEs PRED a NC ee NEE eared webecuddawey esate en pe bbcune iv ao» Ww pp WS S&S =e iv TABLE OF AUTHORITIES Cases PAGE Abdur-Rahman v. Michigan Department of Correc- tions, 65 F.3d 489 (6th Cir. 1995).......... 8 Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995)... 7, 13 Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995) ... 7 Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407 (8th Cir. 1996), peti- tion for cert. filed, 65 U.S.L.W. 3205 (U.S. Sept. i, MEE wccewinvendans tandectbeetsanveds 7,8 Employment Division v. Smith, 494 U.S. 872 CURRED «60. éNesicuie iin ie cceeethindiennteee 4,9 Frazee v. Illinois Department of Employment Se- curity, 489 U.S. 829 (1989) ................ 10 Goodall by Goodall v. Stajjord County School Board, 60 F.3d 168 (4th Cir. 1995), cert. denied, SRG &. CR. TG GOGe cbvcvccdvccsccsiseces 7, 9, 13 Graham v. C.I.R., 822 F.2d 844 (9th Cir. 1987) .. 13 Hernandez v. Commissioner, 490 U.S. 680 (1988) . 13 Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995) ..... 7 Hobbie v.Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987) ............... 13 Lyng v. Northwest Indian Cemetery Protective As- sociation, 485 U.S. 439 (1988) .............. 11 Small v. Lehman, 98 F.3d 762 (8rd Cir. 1996) ... 7 Stefanow v. McFadden, 103 F.3d 1466 (9th Cir. DEE 0c nccnbnbcdedcat txatinceseeetreeaes 7 Thomas v. Review Bd. of Indiana Employment Se- curity, 450 U.S. 707 (1981) ...............-- 10 = ee AT ee Be a Vv Werner v. McCotter, 49 F.3d 1476 (10th Cir. 1995), cert. denied, 115 S. Ct. 2625 (1995)........ Wisconsin v. Yoder, 406 U.S. 205 (1972)....... Statutes 42 U.S.C. § 2000DD(DMI1) ... cee eencccccvees 42 USC. SBI on ccccccccenccccccsoseees ene ne a I a a ee eee aliens OPINIONS BELOW The judgment and opinion of the United States Court of Appeals for the Seventh Circuit of which review is sought is reported at 80 F.3d 1175 (7th Cir. 1996) and is reprinted in the Appendix at 1-11. The order of the Court of Appeals upon Petitioners’ Petition for Rehear- ing, With Suggestions for Rehearing En Banc is reprinted in the Appendix at 14-15. The opinion of the District Court for the Northern Dis- trict of Illinois in Mack v. O’Leary is unreported and is reprinted in the Appendix at 18-24. The opinion of the District Court for the Southern District of Illinois in Lipscomb-Bey v. Peters is unreported and is reprinted in the Appendix at 25-28. JURISDICTION OF THIS COURT The judgment of the United States Court of Appeals for the Seventh Circuit of which review is sought was entered on April 3, 1996. A timely petition for rehear- ing, with suggestions for rehearing en banc was filed with that court on May 8, 1996, upon an extension of time granted by the court. The court denied the petition for rehearing on January 8, 1997. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). STATUTE INVOLVED The text of the Religious Freedom Restoration Act (42 U.S.C. §§ 2000bb-2000bb-4) is reprinted in the Appendix at 39-41. isilliees STATEMENT OF THE CASE Proceedings Relating to John Mack Respondent John Mack, a Muslim inmate in the Illinois corrections system, appearing pro se, filed a complaint against various officials of the Illinois Department of Cor- rections in February 1994, pursuant to 42 U.S.C. § 1983 for deprivation of his rights guaranteed by the First, Eighth, and Fourteenth Amendments and for violation of the Religious Freedom Restoration Act (“RFRA”) relating to the Ramadan services held at Stateville Correctional Center in 1992 and 1993. (Mack Record “M.R.” Doc. 1). Mack claimed that the defendants denied his request to use the prison theater building for Ramadan services and forced him and other Muslims to gather for the services in the prison dining hall, which he alleged was not an ade- quate facility because it was dirty, had no bathroom, and did not allow the Muslims to come together in prayer for- mation because the tables were bolted to the floor. (M.R. Docs. 1 and 20). On January 10, 1995, the district court entered judg- ment for the defendants and dismissed Mack’s claim with prejudice. (M.R. Doc. 38). The court found that Mack’s allegations failed to state a cause of action, even assum- ing the truth of the allegations. (Jd. at 3). The court con- cluded that Mack’s claims against the defendants in their official capacities were outside the scope of § 1983 and were barred by the Eleventh Amendment. (Jd. at 4-5). The district court found that Mack’s claims against the defendants in their individual capacities did not fare any better because Mack did not show that the defendants deprived him of his federal rights. (Jd. at 5-8). Additional- ly, the court concluded that RFRA was not implicated because Mack failed to establish that the defendants sub- stantially burdened the exercise of his beliefs. (Jd. at 6-7). iii ae The district court concluded that the defendants made a reasonable effort to provide Mack with the opportunity to practice his faith during the months of Ramadan in 1992 and 1993. (Jd. at 7). The court found that the defen- dants gave Mack the opportunity to purify his body before being escorted to the cafeteria and permitted him to wor- ship and pray with other followers in the cafeteria. (Jd.). Finally, the court determined that the alleged interference with Mack’s prayers were due to the restrictions imposed by the physical limitations of the facility, but that such “restrictions do not trespass upon Mack’s ability to re- tain and worship the principle that is central to Islam.” (Id.) Mack filed a timely notice of appeal. (M.R. Doc. 41). Proceedings Relating to John Lipscomb-Bey Respondent John Lipscomb-Bey, a member of the Moorish Science Temple of America (“MSTA”) and an inmate in the Illinois corrections system, appearing pro se, filed a complaint against various officials of the Illinois Depart- ment of Corrections in January 1992, pursuant to 42 U.S.C. § 1983 for deprivation of his rights guaranteed by the First and Fourteenth Amendments relating to the re- fusal to permit a MSTA religious banquet on prison grounds with outside guests in attendance. (Lipscomb-Bey Record “L.R.” Doe. 1). A magistrate judge presided over a bench trial on July 22, 1993. (L.R. Docs. 46 and 50). Lipscomb-Bey repre- sented himself. On July 27, 1993, the magistrate judge recommended that judgment be entered in favor of the defendants, concluding that the failure of the prison of- ficials to allow the banquet did not rise to the level of a constitutional violation. (L.R. Doc. 51). On March 11, sail 1994, the district court adopted the magistrate’s findings and conclusions and entered judgment for the defendants. (L.R. Does. 55 anc 56). Lipscomb-Bey filed a timely notice of appeal. (L.R. Doc. 57). Decision of the Court of Appeals On December 3, 1996, without hearing oral argument, the Seventh Circuit issued a decision, which consolidated these pro se cases. (App. 1-11). The court stated that the “appeals require us to consider for the first time the meaning of the term ‘substantially burden a person’s exer- cise of religion,’ which is the key term in the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb.” (App. 2). The court noted that RFRA enlarges the free exercise right beyond the constitutional bounds set forth in Employment Division v. Smith, 494 U.S. 872 (1990), but asked, “How far beyond?” (App. 5). The court stated that the circuits have answered the question different ways, noting that the Fourth, Ninth, and Eleventh Cir- cuits define “substantial burden” as one that either com- pels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. (Jd.). The court noted also that the Eighth and Tenth Circuits use a broader definition, in that action that forces religious adherents to refrain from re- ligiously motivated conduct or that significantly inhibits or constrains conduct or expression that manifests some central tenet of a person’s individual beliefs imposes a sub- stantial burden on the exercise of the individual’s religion. (Id.). The court stated that the Sixth Circuit “seems to straddle this divide, asking whether the burdened prac- tice is ‘essential’ or ‘fundamental[.]’” (/d.) a Ms at tll ly Mele eat i ll Mil trast i The court stated that it did not consider the holdings inconsistent or evidence of an intercircuit split, but it con- cluded that “the more generous definition is more faithful both to the statutory language and to the approach that the courts took before the Smith case.” (App. 5-6). The court then held that a substantial burden on the free ex- ercise of religion “is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs.” (App. 6). Based on this definition, the court concluded that Mack had stated a claim and remanded for further proceedings. (App. 8). The court did affirm that portion of the district court’s decision dismissing Mack’s claims for damages under section 1983 from the defendants in their official capacities because that claim was barred by the Eleventh Amendment. (App. 10-11). Regarding Lipscomb-Bey, the court affirmed the district court’s judgment in favor of the defendants because they established both a compelling governmental interest in imposing the “modest burden’’ and the absence of any less restrictive alternative. (App. 9, 11). REASONS FOR GRANTING THE WRIT The proper construction and application of the Religious Freedom Restoration Act has been the subject of many decisions since its enactment in 1993. Courts have taken divergent approaches in formulating the appropriate mean- ing of the essential terms of the statute. A significant number of those cases involves application of the statute in the prison setting. Given the scores of prison officials who must apply this statute on a daily basis, the import- ance of settling the meaning of the statute is clear. lie The petitioners acknowledge that on October 15, 1996, the Court granted the petition for writ of certiorari by the City of Boerne, Texas in City of Boerne v. Flores, No. 95-2074, which involves the constitutionality of the Religious Freedom Restoration Act. Argument was heard on February 19, 1997. The constitutionality of the Reli- gious Freedom Restoration Act is also the issue involved in a petition filed on October 29, 1996, in Sullivan v. Sasnett, No. 96-710. Although the issues presented below are not identical to the issue in the Flores case, the peti- tioners here request that this petition for writ of certiorari be considered in light of any decision of this Court in Flores. I. THE SEVENTH CIRCUIT’S DEFINITION OF “SUBSTAN- TIAL BURDEN” AS THAT TERM IS USED IN THE RE- LIGIOUS FREEDOM RESTORATION ACT CONFLICTS WITH OTHER CIRCUITS’ DEFINITIONS OF THE TERM. The Religious Freedom Restoration Act (“RFRA”’) pro- vides that government shall not substantially burden a person’s exercise of religion except when the government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that com- pelling governmental interest. 42 U.S.C. § 2000bb-1. The Seventh Circuit held that “a substantial burden on the free exercise of religion, within the meaning of the Act, is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains con- duct or expression that manifests a central tenet of a per- son’s religious beliefs, or compels conduct or expression that is contrary to those beliefs.” (App. 6). pe The Seventh Circuit’s definition of “substantial burden” on the exercise of religion is in direct conflict with the definitions articulated by other circuits. Even the court acknowledged that the various circuits have found “differ- ent ways” to define “substantial burden.” (App. 5). Simi- larly, the Third Circuit, citing decisions of the Ninth and Tenth Circuits, has stated that the showing of a substan- tial burden under RFRA “seems to be unsett’ed.” Small v. Lehman, 98 F.3d 762, 767 (8rd Cir. 1996). The Fifth Circuit has stated that the “statutory contours of RFRA are vague and its legal limits and standards have yet to be defined[,]’” noting that “substantial burden” has been defined in several different ways. Hicks v. Garner, 69 F.3d 22, 26 (5th Cir. 1995). The conflict existing among the circuits is clear. In direct contrast to the definition formulated by the Seventh Circuit, the Fourth, Ninth, and Eleventh Circuits have stated that the RFRA analysis involves the question whether an individual has been compelled to engage in conduct proscribed by his religious beliefs or has been forced to abstain from any action that his religious belief mandates or requires that he take. Stefanow v. McFad- den, 103 F.3d 1466, 1471 (9th Cir. 1996) (citing Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995)); Goodall by Goodall v. Stafford County School Board, 60 F.3d 168, 172-173 (4th Cir. 1995), cert. denied, 116 S. Ct. 706 (1996); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995). The Third Circuit recently remanded a case to the district court to determine whether a particular practice was mandated by the individual’s faith. Small v. Lehman, 98 F.3d 762, 767- 768 (8rd Cir. 1996). At the opposite end of the spectrum is the Eighth Circuit, which looks to whether a govern- mental action meaningfully curtails a religiously motivated practice. Christians v. Crystal Evangelical Free Church line (In re Young), 82 F.3d 1407, 1419-1420 (8th Cir. 1996), (“defining substantial burden broadly to include religiously motivated as well as religiously compelled conduct is con- sistent with the RFRA’s purpose to restore pre-Smith free exercise case law’’), petition for cert. filed, 65 U.S.L.W. 3205 (U.S. Sept. 19, 1996) (No. 96-437). Other circuits ascertain whether a practice is central to or a fundamental tenet of a particular religion. See Abdur- Rahman v. Michigan Department of Corrections, 65 F.3d 489, 491-492 (6th Cir. 1995) (whether a governmental policy affects an essential tenet of a religious belief or whether a practice is fundamental to a religion) and Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (to exceed RFRA’s substantial burden threshold, a government regu- lation must significantly inhibit or constrain conduct or expressio:, that manifests some central tenet of an indi- vidual’s beliefs, must meaningfully curtail the individual’s ability to express adherence to his faith, or must deny a person reasonable opportunities to engage in those ac- tivities that are fundamental to an individual’s religion), cert. denied, 115 S. Ct. 2625 (1995). The Seventh Circuit’s statement that these “verbal dif- ferences . . . may come to nothing in practice,” under- states the direct conflict that exists among the circuits in applying RFRA. Requiring a plaintiff to make a thresh- old showing that a particular practice or conduct is man- dated by his or her religion or is centrai or fundamental to the religion is far different from requiring a showing that a practice or conduct is merely religiously motivated. The conflict is not one simply in the reasoning applied to claims of RFRA violations, but is one that could result in cases involving similar facts being decided differently. Under these circumstances and in view of the importance of this question, this Court’s guidance is required. aunthntrts aiiianmias mn, an ih. thee == il. THE SEVENTH CIRCUIT’S DEFINITION OF “SUBSTAN- TIAL BURDEN” IMPROPERLY EXPANDS THE MEAN- ING OF THE RELIGIOUS FREEDOM RESTORATION ACT AND IS UNWORKABLE IN THE PRISON SETTING. The Seventh Circuit stated that RFRA “enlarges the free-exercise right beyond the constitutional bounds set forth in [Employment Division v.] Smith, [494 U.S. 872 (1990)}.” (App. 5). The Court then asked, “How far beyond?” (/d.). In answering this question, the court announced its definition of “substantial burden.” There simply is no evi- dence that, in enacting RFRA, Congress intended to en- large the scope of religious exercise claims subject to pro- tection, which is precisely what was done by the Seventh Circuit. The focus of RFRA is on the amount of justification required to withstand challenges to governmental enact- ments or actions. See 42 U.S.C. § 2000bb(bX1) (the pur- pose of RFRA is “to restore the compelling interest test ....”). Congress found that the Court in Employment Division v. Smith, 494 U.S. 872 (1990) “virtually elimi- nated the requirement that the government justify bur- dens on religious exercise imposed by laws neutral towards religion{.]” Thus, Congress’s objection was with the Court’s articulation of the government’s burden required to pre- vail against free exercise challenges—not with the per- ceived scope of the claims subject to First Amendment analysis. See Goodall, 60 F.3d at 171 (RFRA does not pur- port to create a new substantial burden test.). The legislative history of RFRA shows that the substan- tial burden requirement was intended to carry forward the pre-Smith law: “The committee expects that the courts will look to free exercise cases decided prior to Smith for guidance in determining whether the exercise =e of religion has been substantially burdened and the least restrictive means have been employed in furthering a com- pelling governmental interest.” S. Rep. No. 111 at 8-9. The notion that the practice or conduct claimed to have been substantially burdened must be something more that merely “religiously motivated” appears consistently throughout case law. For example, in Wisconsin v. Yoder, 406 U.S. 205, 218 (1972), it was undisputed that forcing Amish school children to attend secondary schools “contra- venes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.” The operation of the compulsory attendance law compelled the Amish “to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Yoder, 406 U.S. at 218. The Court articulated the substantial burden test most clearly in Thomas v. Review Bd. of Indiana Employment Security, 450 U.S. 707, 717-718 (1981): benstit vee Gane ane ei by > religious faith, nefit upon conduct a , or where it denies such a benefit of conduct mandated by religious belief, thereby substan- tial pressure on an adherent to malty hie behavior and to violate his beliefs, a burden upon religion exists. See also Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 834 (1989) (“There are assorted Christian denominations that do not profess to be com- pelled by their religion to refuse Sunday work.”) The court below established a definition of “substantial burden” that constitutes an unwarranted expansion of the application of RFRA. Case law simply does not swpport a finding that a substantial burden on the exercise of religion includes that conduct that is motivated by reli- gion, as opposed to mandated or required by religion. The oe Seventh Circuit’s decision also essentially ignores the re- quirement that the burden be “substantial.’’ Under the Seventh Circuit’s standard, the government would be required to prove the existence of a compelling interest on the basis of an allegation of a burden, no matter how slight, on the exercise of religion and to dem- onstrate that it has chosen the least restrictive means to regulate the interest. This is precisely the court’s result in the Li, scomb-Bey case, where the court found that he had triggered application of RFRA, even though the bur- den on his religion was, in the court’s own terms, a “modest” one. (App. 9). Similarly, the standard now re- quires the prison officials in the Mack case to show a com- pelling interest even though the alleged restriction 1s noth- ing more than a mere inconvenience or an ‘ problem ],” as even Mack alleged. (See M.R. Doc. 4-A). In this regard, the Seventh Circuit’s decision disregards the Court’s substantial burden standard expressed in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 489 (1988), where the Court stated that incidental effects of otherwise lawful government programs which may make it more difficult to practice certain religions but have no tendency to coerce individuals into acting con- trary to their religious beliefs do not constitute substan- tial burdens on the exercise of religions. The approach chosen by the Seventh Circuit is particu- larly unworkable in the prison setting. The threshold is so low that any desired service, diet, publication or reli- gious item could be framed as a religiously motivated re- quest. For example, white supremacist inmates may argue that they believe they should not cell with black inmates based on their religious feelings. Another example, is that inmates may claim that their religion motivates them to ae FA obtain gang-related symbols, medallions, or headgear. Un- der the court’s standard, prisoners will meet the RFRA threshold simply by alleging that they have been denied specific services or privileges that their religious feelings motivate them to demand. While the court provided the assurance that prison officials “do not have to do hand- springs to accommodate the religious needs of inmates,” such assurance is meaningless in light of both the lack of precision in the court’s test and the generous defini- tion adopted by the court. (App. 9). Contrary to the court’s conclusion that its decision will not “portend ] a flood of prisoner litigation . . .”, the deci- sion does promise increased litigation. (App. 8). The court responds to its own assumption that prisoner litigation will not increase by stating that courts still will give deference to prison authorities on issues of prison dis- cipline. The fact that a court ultimately may defer to prison administrators clearly does not alleviate the poten- tial for an increase in litigation by prisoners who feel that substantial burdens have been placed on their religiously motivated conduct. The decision, while predicting that a court “should be able to figure out . . . which religious practices are im- portant to their practitioners and which are not”, leaves unanswered how a prison official can “figure out” that same question on the day-to-day level of prison manage- ment. (App. 7). This is particularly true due to the dif- ficulty prison officials have in disproving the sincerity of an inmate’s religious belief. Given the difficulty prison of- ficiais would have in separating religiously motivated re- quests from philosophically motivated requests, it is essen- tial in the operation of a prison that inmates show that the subject of their particular request is religiously man- dated. A standard that requires protection against only ern Te ou es that conduct that is religiously mandated is the better ap- proach over that which is measured merely by conduct that is religiously motivated. The circuits that interpret RFRA to mean that a plain- tiff must show that a substantial burden has been placed on conduct that is mandated by religion are correct. The Goodall court noted that its approach was consistent with that taken in Hobbie v.Unemployment Appeals Commis- sion of Florida, 480 U.S. 136 (1987), where the Court stated that a burden upon religion exists when the state denies a benefit because of conduct mandated by religious belief. 60 F.3d at 172. In Bryant, the court indicated that it based its “mandated conduct” test on an earlier Ninth Circuit decision, Graham v. C.I.R., 822 F.2d 844 (9th Cir. 1987), which was affirmed by this Court (Hernandez v. Commissioner, 490 U.S. 680 (1988) (“Neither the payment nor the receipt of taxes is forbidden by the Scientology faith generally, and Scientology does not proscribe the payment of taxes in connection with auditing or training sessions specifically.”) 46 F.3d at 949. The Seventh Circuit’s chosen standard to measure RFRA claims is unnecessarily broad and is unworkable for prison officials. The standard allows plaintiffs to meet RFRA’s threshold merely by alleging a burden, no matter how slight, and merely by making an allegation that their conduct is religiously motivated. This interpretation is in- consistent with the language of RFRA and extends far beyond the intent of Congress, which simply was to re- store the compelling interest test to these types of claims. a CONCLUSION For all of the foregoing reasons, the Court should grant the Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit or, in the alter- native, hold this case for determination pending resolu- tion of City of Boerne v. Flores, No. 95-2074. Respectfully submitted, JAMES E. RYAN Attorney General of Illinois Assistant Attorneys General 100 West Randolph Street 12th Floor icago, Illinois 60601 (312) 814-5659 *Counsel of Record Attorneys for Petitioners eS ea Se ee APPENDIX App. 1 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 95-1331 JOHN MACK, Plaintiff-Appellant, v. MICHAEL O’LEarY, et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 621—Charies R. Norgle, Sr., Judge. No. 94-1849 JOHN LEE Lipscoms-Bey, Be ee Plaintiff-Appellant, v. HowarpD A. PETeErs III, et al., Defendants-A ppellees. Appeal from the United States District Court for the Southern District of Illinois. Nos. 92 C 31, 92 C 55—William D. Stiehl, Judge. SUBMITTED Fesruary 29, 1996—Decipep APRIL 3, 1996 App. 2 Before PosNER, Chief Judge, and MANION and KANNE, Circuit Judges. PosNER, Chief Judge. We have consolidated for decision appeals by two Illinois state prisoners from the dismissal of their suits against prison officials in which they seek for alleged infringements of religious liberty. The ap require us to consider for the first time the mean- ing of the term “substantially burden a person’s exercise of religion,” which is the key term in the Religious Freedom Restoration Act of 1998, 42 U.S.C. § bb. No. 95-1831. Ramadan is a 30-day period, analogous to Lent, but much more rigorous, during which votaries of Islam are required to engage in fasting and other pre- scribed acts of abstinence and in which ritual duties, in- cluding prayer and purification, are to be discharged with the utmost punctiliousness. According to Mack’s complaint, the factual allegations of which we must accept because the suit was dismissed for failure to state a claim, the defendants during Ramadan 1992 and 1993 refused to ac- commodate the religious needs of Mack and the other Muslim inmates of Stateville prison. The Muslims were forced to have their dinner (a ritual occasion during Ramadan, be- cause fasting is required from sunrise to sunset) in the prison’s mess hall immediately after the rest of the prison population had had its dinner. So there was no time to clean the floor, which was filthy from the previous diners, and as a result the Muslims were unable to prostrate themselves for prayer during the prayer intervals in their meal. The manner in which the tables in the mess hall were bolted to the wall, moreover, made it impossible for the diners to sit facing reveled ny Be Pee gsm wa close formation. And because the mess lacked running water, the diners could not perform ritual purification (wudu) during their meals, which might become necessary if a diner defiled himself during the meal, for example by breaking wind. The district judge did not think that these allegations demonstrated a substantial burden on the Muslims’ exer- cise of their religion. “The alleged restrictions imposed App. 3 by the physical limitations of the facility may interfere with the desired method of prayer,” he said, “but the restrictions do not trespass upon Mack’s ability to retain and worship the principle that is central to Islam.” In support of the judge's ruling, the defendants ask us to distinguish between a substantial burden and a mere in- convenience, and they argue that what Mack alleges is clearly the latter. ee eee Oe damages by way of relief, and has named only priso officials, and not the State of Illinois, as defendants. The defendants do not raise a defense of qualified immunity. They also do not questio piety of damages asa remedy for violations of the ct, even though the Religious Freedom Restoration Act says nothing about remedies except that a person whose rights under the Act are violated “may assert that violation as a claim or defense in a judicial proceeding and obtain appro- priate relief against a government.” 42 U.S.C. § 2000bb-1(c) (emphasis (Previous decisions have assumed rather than discussed the availability of damages under the Act. See, e.g., Brown v. Hot, Sexy & Safer Productions, Inc., 68 3a 525, 537-38 (1st Cir. 1995).) Although there is no indication of co nal intent to abrogate the states’ Eleventh Ame nt immunity from suit (another issue not discussed in previous cases), the Act defines “govern- ment”’ to include government employees acting under color of state law. § 2000bb-2(1). So Mack was entitled to sue the prison officials rather than the State of Illinois and does not face the bar of the Eleventh Amendment. No. 94-1849. Lipscomb-Bey (who unlike Mack sought in- junctive relief as well as damages in the district court) belongs to a religious sect known as the Moorish Science T of America. “Moors,” as the adherents to the sect are wn, celebrate January 8, the birthday of their founder, Drew Ali, with a Prophet’s Day wre line The Moors imprisoned in Menard requested but were refused permission to have such a banquet. The prison has grouped the more than 300 religious denominations represented at Menard (a number hard to believe, but not contested) App. 4 into four umbrella groups—Catholic, Jewish, Muslim, and Protestant—each of which is allowed one or ee ‘days a year, which they can use for a sacred feast. No separate denomination is allowed its own picnic day. The prison pre a ae manpepiestny me: ce rp mand oem pretty sui is. They have a sacred book that they ; call the “Koran,” ut it is not the Islamic Koran, and while they respect Mohammed, along with Jesus and others, as oo they give primacy to their own prophet, Seow Ali. They are permitted to and do conduct their own religious ser- vices at Menard. Lipscomb-Bey, unlike Mack, was given an evidentiary J ~ on his claim that his religi rights were in- fri by the refusal to allow Moors to hold a banquet. At the ing, the national leader of the Moors, Grand Sheikh Robert Love-El, testified that a Prophet’s Day banquet was an important but not a required rite of the Moslem Science Temple. Officials of Menard testi- fied that it would be utterly impractical te allow each of the 300 denominations to have its own feast day. The dis- trict court gave judgment for the defendants. The Religious Freedom Restoration Act provides that “government may substantially burden a person’s exer- cise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a com- pelling government interest; and (2) is the least restric- tive means of furthering that compelling governmental in terest.” 42 U.S.C. § 2000bb-(1Xb). Court had held in Employment Division v. Smith, 494 U.S. 872 (1990), that a law of general applicability (there a law, sim- ilar to the federal drug laws, of certain “controlled substances’ aan Ub edieend tonbut religiously motivated conduct (there the use of peyote as part of the religious rituals of an American tribe) without the free exercise clause of the First EE af + if ey Oe ee ae ee a —_—— Poe) ee ee a App. 5 of the Fourteenth Amendment)—or its licabilit prison inmates (see, e.g., Hamilton v. riro, 74 1545, 1552 (8th Cir. 1996))—enlarges the free-exercise ri it beyond the constitutional bounds set forth in Smith. “ gress by RFRA is demanding ad hoc review of laws of general licability that substantially burden the free exercise ee ligion” but do not violate the Constitution as authoritativel ——— reted in Smith. Flores v. City of Boerne, supra, at 1361. How far beyond? That is the question, and the circuits have answered it in different ways. The Fourth, Ninth, and Eleventh Circuits define “substantial burden” as one that either compels the religious adherent to engage in conduct that his religion forbids (such as eating pork, for a Muslim or Jew) or forbids him to engage in conduct that his religion requires (such as prayer). Goodall by Goodall v. Sta | Cooma School Board, 60 F.3d 168, 172-78 (4th Cir. 1995); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995); B v. Gomez, 46 F.3d 948 (9th Cir. 1995) (per curiam). Eighth and Tenth Circuits use a broader definition—action that forces religious adherents “to re- frain from religiously motivated conduct,” Brown-El v. Harris, 26 F.3d 68, 70 (8th Cir. 1994), or that ‘ ‘significant- ly inhibit{s] or constrain{s] conduct or expression that mani- fests some central tenet of a [person’s] individual beliefs,” Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995), imposes a substantial burden on the exercise of the indi- vidual’s religion. The Sixth Circuit seems to straddle this divide, asking whether the burdened practice is “essen- tial” or ‘ tal,” Abdur-Rahman v. Michigan Dept. of Corrections, 65 F.3d 489, 491-92 (6th Cir. 1995). These verbal differences may be accidental, or may come to nothing in practice. None of the cases that we have cited expresses an awareness of an intercircuit split; nor is it clear that any of the holdings (as distinct from many of the dicta) are inconsistent. But we do think that the more generous definition is more faithful both to the seulednes laneenas and to the approach that the courts took before Smith, in cases like Sherbert v. Verner, 374 App. 6 U.S. 398 (1963), and Hesrgey Be Review pants 450 U.S. 707, 717-18 (1981)—which is roach that esa] ene 0 tale enter eae eae ration Act. 42 U.S.C. § 2000bb(bX1); see also S. . No. 111, 108d Cong., 1st Sess. 5-9 (1993); H.R. Rep. No. 88, 103d Cong., 1st Sess. 2-7 (1993). We hold, therefore, tha a substantial burden on the free exercise of religion, with- in the meaning of the Act, is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs. What we are calling the generous definition is also the one more sensitive to religious feeling. Many religious practices that clearly are not mandatory, such as pray- ing the rosary, in the case of Roman Catholics, or wear- ing yarmulkes, in the case of Orthodox Jews (optional be- cause while Jewish men are required to cover their heads, the form of the head covering is not prescribed), are im- portant to their practitioners, who would consider the ar of them a grave curtailment of their religious iherty. - But the decisive argument in favor of the generous defi- nition of “substantial burden,” it seems to us, is the undesirability of making judges arbiters of religious law, Thomas v. Review Board, supra, 450 U.S. at 716; Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988), as required by the alternative approach. That approach, the approach of the Fourth, Ninth, and Eleventh Circuits, requires the courts to determine what practices the plaintiff's religion obligates him to follow, and this is an issue of religious law, requiring the court to determine the authoritative sources of law for the religion in question and to inter- pret the commands emanating from those sources. In the case of hierarchical religions such as Roman Catholicism this process of identification and interpretation, which resembles the procedures of legal positivism, is feasible. In the case of nonhierarchical religions, however, such as Islam, Judaism, and a multitude of Protestant sects, the App. 7 process is infeasible, or at least very difficult and attended with a high degree of indeterminacy. The danger that courts will find themselves taking sides in religious schisms, if they must opine on matters of religious obligation, is not a trivial one. The other approach, the approach that does not tie bur- den on ndlsias to velieions law, is not immune from the artis 4 aiar tommeruaies-6 Gngir Gan oes one in religious controversies—a danger that was one ie th things that persuaded the Supreme Court in Smith ‘> aaa the roach as a matter of constitutional in- terpretation. 494 U.S. at 886-87. For it requires the court to separate center from periphery in observances. But that is an inquiry sociological than legal in character and the risk of taking sides in religious contro- versies is less. A court should be able to figure out, usually from its own observations (“common knowledge”) but if need be from evidence, which religious practices are im- eer to their practitioners and which are not without ving to determine who in the religion is authorized to lay down and what the content of that dogma is. Under the -year regime overturned in Smith the courts did not encounter insuperable difficulties in determining the importance of the various practices the burdening of . which was claimed to be substantial. See, e.g., Wiscon- | sin v. Yoder, 406 U.S. 205, 215-19 (1972); Lyng v. North- west Indian Cemetery Protective Ass'n, 485 U.S. 439, 451 (1988); Young v. Lane, 922 F.2d 370, 376-77 (7th Cir. 1991). All this is not to deny that when it is known without need ; for judicial inquiry that the practice in question either is or is not mandatory, this adds weight to, or subtracts weight from, the substantiality of the burden. See, e.g., Menora v. Illinois High School Ass’n, 683 F.2d 1080, 1034 (7th Cir. 1982). But it does not conclude the issue. Mack’s case illustrates the superiority of the broader definition of substantial burden. It would be an exquisitely difficult for a court to determine whether the practices that he the defendants interfered with, such as facing Mecca while eating Ramadan meals or puri- ESE App. 8 fying oneself during as well as before the meals, are ac- tually obligatory for Muslims. There are different branches of Islam, of which the Sunni and the Shiite are merely the best known, so that the court would first have to determine which branch the plaintiff considered himself to be a member of. And neither branch has a supreme leader, corresponding to the Pope or to the Patriarch of the Russian Orthodox Church, to whom a court might look for a definitive ruling on a subtle or contested article of faith. The proper and feasible question for the court is simply whether the practices in question are important to the votaries of the religion, and being factual that is not a question that can usually, or here, be resolved on the pleadings. Mack has stated a claim by alleging that the defendants have substantially burdened the exercise of his religious rights. A remand will be necessary in his case to determine whether the claim has merit. We do not think that this conclusion portends a flood of prisoner litigation that will make the management of American prisons even more difficult than it is already. Although once a substantial burden on the plaintiffs prac- tice of the religion is shown the burden shifts to the defendant to show that the state has a compelling interest in imposing the burden and could not protect that interest by some less burdensome means, we find nothing in this formulation, or in the history of the statute, fo suggest that Congress intended to undermine the judicial policy of deference to prison authorities on issues of prison discipline. Hamilton v. Schriro, supra, 74 F.3d at 1552. On contrary, the legislative history is explicit in recog- nizing that the interest in maintaining order in prisons is a compelling governmental interest and one that fre- quently requires and so justifies limitations on freedom of religious conduct. As the House Report put it, “religious liberty claims in the context of prisons and the military present far different problems for the operation of those institutions than they do in civilian settings. Ensuring the safety and orderliness of penological institutions, as well aS maintaining discipline in our armed forces, have been —_— — hee Cie Nl at ap Sal cn a Be Nee Ree ee wan App. 9 recognized as governmental interests of the highest or- der.” H. Rep. No. 88, supra, at 8. The Senate Commit- tee said that it “expects that the courts will continue the tradition of giving due deference to the experience and expertise of prison and jail administrators in establishi necessary regulations and procedures to maintain order, security and discipline, consistent with considera- tion of costs and limited resources.” S. Rep. No. 111, supra, at 10 (footnote omitted). It would be premature to decide whether the defendants in Mack’s case were justified in restricting the religious observances of their Muslim prisoners as they did, because they have not as yet attempted to justify them. But it is fairly obvious that tables in prison mess halls have to be bolted to the floor, since they would be formidable weapons in a prison riot, and that alternative eating places may not be available for festal occasions such as Ramadan or Christmas dinners. The prison officials do not have to do handsprings to accommodate the religious needs of in- mates, and the less central an observance is to the religion in question the less the officials must do. These points are further illustrated by Lipscomb’s case. We know from Grand Sheikh Love-E]!’s testimony that the Moors at Menard are not strictly required by their religion to hold a Prophet’s Day me ag that it is enough to attend services on or about January 8 celebrating the Prophet’s birthday. This is not conclusive against a viola- tion of the Act if we are right that the practice of a religion can be substantially burdened by the curtailment of a nonmandatory observance. The Grand Sheikh’s tes- timony indicates that a Prophet’s Day banquet is an im- — though not absolutely essential rite for Moors, and ence that the refusal to allow the banquet did impose a substantial burden on Lipscomb-Bey’s religious freedom. But the defendants overcame the prima facie case thus made out by establishing both a compelling governmental interest in imposing the modest burden and the absence of any less restrictive alternative. If not every one of the 300 denominations said to be represented at Menard, then App. 10 undoubtedly a large fraction of them, could make a per- suasive case that a periodic communal meal of some sort is a rite of their religion. From the Jewish Seder (which was also Jesus Christ’s last supper) to the Ramadan meals in Mack’s case, communal eating is a standard rite in many religions. Menard cannot sponsor 300 ts a year, or even 100. Its grouping of the denominations in- to four umbrella groups for purposes of festal occasions is all that the law could reasonably be thought to require of so religiously heterogeneous a prison. Lipscomb-Be raises some other issues, but they do not have eno merit to warrant discussion. The judgment in his case must be affirmed. But we must still tie up some loose ends in Mack’s case. The complaint all that in addition to violating the Re- ligious Freedom Restoration Act, the defendants denied the Muslim prisoners equal protection of the law by being manch suase acaeeanaGeliier of ha anelyal Cees © ris- oners. This part of tio cult fo beled aut or Gee Ret, bet on 42 U.S.C. § 1983, ee ene 8 ee persons who infringe constitutional rights under color of state law. The district judge did not mention the equal protection claim and it is not obvious on what basis it could be rejected on the bare pleadings. The judge was right to dismiss so much of the suit as seeks damages under section 1983 from the defendants in their official rather than individual capacities, because such a claim is barred by the Eleventh Amendment (the defendants did interpose the Eleventh Amendment as a defense to Mack’s equal protection claim, though not with respect to his claim under the Religious Freedom Restoration Act), and also right to dismiss so much of the suit as seeks relief under the free-exercise clause of the First Amendment rather than under the Act, since Smith bars the former. What we ee as the equal protection claim, how- ever, could equally well be descri as a claim under the free-exercise , which forbids government to dis- criminate between religions, Reed v. Faulkner, supra, 842 F.2d at 962; and so the First Amendment is not entirely App. 11 out of the case. We are mindful of occasional judicial lan- guage to the effect that the Act “superseded” or “over- turned” the understanding of the ienteneien clause ex- pressed in Smith and some other First Amendment cases—notably O’Lone v. Shabazz, 482 U.S. 342 (1987), which allowed prison officials to restrict reli jous observ- ances by prisoners without showing a compe interest, impossible to protect by a less restrictive means, for do- ing so. Giano v. Senkowski, 54 F.3d 1050, 1053 (2d Cir. 1995); Werner v. McCotter, supra, 49 F.3d at 1479. But a statute cannot either enlarge or contract the Constitu- tion. Nor do the defendants in these cases argue that the | statute is intended to provide the exclusive means (ex- clusive, that is, of 42 U.S.C. § 1983, the usual vehicle for seeking civil relief against constitutional violations) for en- forcing rights conferred by the free-exercise clause, as the Education of the Handicapped Act was held to do in Smith v. Robinson, 468 U.S. 1009-13 (1984), with respect to certain equal protection claims. The Religious Freedom Restoration Act says very little about remedies, so it is unlikely that Congress intended it to displace the exist- ing remedial system for constitutional violations, but in any event such displacement is not argued. The judgment in Mack’s case (No. 95-1331) is affirmed in part (the part based on the Eleventh Amendment), but is otherwise reversed and his case remanded for further } proceedings consistent with this opinion. The judgment ; in Lipscomb-Bey’s case (No. 94-1849) is affirmed in its entirety. A true Copy: Teste: eee Clerk of the United States Court of Appeals for the Seventh Circuit , ee App. 12 UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 JUDGMENT — WITHOUT ORAL ARGUMENT Date: April 3, 1996 BEFORE: Honorable RICHARD A. POSNER, Chief Judge Honorable DANIEL A. MANION, Circuit Judge Honorable MICHAEL S. KANNE, Circuit Judge No. 94-1849 JOHN L. LipscomsB-BEy, ete Plaintiff-Appellant, V. HowarpD A. PETERS, III, GEorGE C. WELBORN, Warden Menard Correctional Center, ALAN L. FRENTZEL, Assistant Warden of Menard Correctional Center, et al., Defendants-Appellees. No. 95-1311 JOHN MACK, Plaintiff-Appellant, MICHAEL O’LEARY, et al., Defendants-Appellees. os App. 13 Appeals from the United States District Court for the Southern District of Illinois, East St. Louis Division No. 92 C 55—William D. Stiehl, Judge (94-1849) No. 94 C 62i1—Charles R. Norgle, Sr., Judge (95-1331) The judgment of the district court in appeal No. 95-1331 is AFFIRMED in part (the part based on the Eleventh Amendment), but is otherwise REVERSED and RE- MANDED for further proceedings. Appeal No. 94-1849 is AFFIRMED. The above is in accordance with the deci- sion of this court entered on this date. App. 14 UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 January 8, 1997 Before Hon. Richard A. Posner, Chief J Hon. Daniel A. Manion, Circuit J Hon. Michael S. Kanne, Circuit Judge JOHN MACK, fee Plaintiff-Appellant, No. 95-1331 v. MICHAEL O'LEARY, et al., Defendants-Appellees. from the United States District Court for the Northern District of Mlinois, Eastern Division. No. 94 C 621—Charles R. Norgle, Sr., Judge. JOHN LEE Lipscoms-BeEy, Cai Plaintiff-Appellant, No. 94-1849 v. HowarpD A. Peters III, et ai., ——e- Ee ee ee a ee Le ce, et a et ee App. 15 ORDER Defendants-appellees filed a petition for rehearing, and a supplement thereto, with suggestion for rehearing en bane. All the judges on the original panel have voted to deny the petition, and none of the active judges has re- quested a vote on the suggestion for rehearing en banc. The petition is therefore DENIED. App. 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS JUDGMENT IN A CIVIL CASE JOHN LIPSCOMB-BEY v. Case Number: 92-CV-31-WDS HOWARD PETERS, GEORGE C. WELBORN, ALAN FRENTZEL and LEO HAYES ) Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. & Decision by Court. This action came to trial or hear- ing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED that judgment is entered in favor of defendants, HOWARD PETERS, GEORGE C. WELBORN, ALAN FRENTZEL, AND ~ LEO HAYES, and against the plaintiff, JOHN LIPS- COMB-BEY, pursuant to the Court’s Order of March 9, 1994. March 9, 1994 Stuart J. O’Hare Date Clerk /s/ Sandy Pannier (By) Deputy Clerk a = 3 pee E 2a neat pert App. 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JUDGMENT IN A CIVIL CASE JOHN MACK v. Case Number: 94 C 621 MICHAEL O’LEARY, et al. © Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. & Decision by Court. This action came to trial or hear- ing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED ANP ADJUDGED that the motion of defendants to dismiss the complaint is granted and the compiaint is dismissed with prejudice. January 9, 1995 H. Stuart Cunningham Date Clerk /s/ J.W. Fulbright (By) Deputy Clerk App. 18 [Dated January 9, 1995] IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JOHN MACK, Plaintiff, No. 94 C 621 HONORABLE CHARLES R. NORGLE Vv. MICHAEL O’LEARY, Deputy Director, SALVADOR GODINEZ, Warden, J. SPRINGBORN, Assistant Warden, and J. SCHOMIG, Assistant Warden, ee Defendants. OPINION AND ORDER CHARLES R. NORGLE, SR., District Judge: Before the court is the motion of defendants Michael O’ Leary, Salvador Godinez, James M. Schomig, and Jerome Springborn (“‘defendants’’) to dismiss the complaint pur- suant to Federal Rule of Civil Procedure 12(bX6) for fail- ing to state a cause of action. For the following reasons, the motion is granted and the complaint is dismissed with prejudice. ee ee App. 19 FACTS? Plaintiff John Mack (“Mack”) is a convicted felon cur- rently serving his sentence at Centralia Correctional Cen- ter in Centralia, Illinois. During the period relevant to this litigation, Mack was incarcerated at Stateville Cor- rectional Center (“Stateville”). According to Mack’s allega- tions, défendants deprived him of his right to freely ex- ercise the Islam faith. The complaint alleges that in 1992 and 1993, defendants refused to allow Mack to worship and pray in the manner prescribed by the Muslim Com- munity Standard during the Fast of Ramadan. More specifically, Mack complains that during the rele- vant periods, he was forced to pray to Allah in a cafeteria where there was no facil’‘y or running water to purify his body, a cafeteria that was unclean and unsuitable for a religious observance, a cafeteria that was equipped with bolted tables which hindered Mack from taking the close body formation required to pray to Allah, and was forced to pray facing the guard tower. The prison officials at Stateville allowed Mack to purify himself only with the water available in his cell before being taken to the cafeteria. Mack was then allowed to consume his meal and to hold his prayer meeting at the conclusion of the meal. DISCUSSION On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b\6), all well-pleaded factual allegations are presumed to be true. Land v. Chicago Truck Drivers, 25 F.3d 509, 511 (7th Cir. 1994). The court must view ' The following facts are drawn from the complaint filed on January 31, 1994, and a pleading filed in response to defendants’ motion to dismiss. App. 20 those allegations in the light most favorable to the plain- tiff, Gould v. Artisoft, Inc., 1 F.3d 544, 546 (7th Cir. 1983), and accept all reasonable inferences to be drawn from those allegations as true. Meriwether v. Faulkner, 821 F.2d 408, 410 (7th Cir.), cert. denied, 484 U.S. 935 (1987). Furthermore, pro se complaints are to be liberally con- strued, and pro se civil rights complaints may be dismiss- ed only “if it is beyond doubt that there is no set of facts under which the plaintiff could obtain relief.” Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 378 (7th Cir. 1988). The complaint must, however, state allegations, either directly or inferentially, to establish the necessary elements for recovery under the choser Jegal theory. Glatt v. Chicago Park Dist., 847 F. Supp. 101, 103 (N.D. Til. 1994). In the instant action, Mack seeks to recover monetary damages from defendants in their individual capacities as well as in their official capacities as officials with the Illi- nois Department of Corrections (“IDOC”). Mack claims he is entitled to monetary damages because defendants violated his right to freely exercise his religion as guaranteed by the First and Fourteenth Amendment. In contrast, defendants contend that even if all of Mack’s allegations are true, they fail to state a § 1983 cause of action. The court agrees. The claim of constitutional violation against defendants in their official capacities is insufficient as a matter of law and must be dismissed pursuant to Federal Rule of Civil Procedure 12 (b) (6) with prejudice. A suit against a state official in his or her official capacities is treated as a suit against the State. Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 361 (1991); Frances J. v. Wright, 19 F. 3d 337, 342 (7th Cir.), cert. denied, 115 3. Ct. 204 (1994). While a local governmental entity may be subject to liability under Fate ae eel old OS nakobol ' App. 21 § 1983 because it is considered a “person” within the meaning of that provision, Baxter by Baxter v. Vigo Coun- ty School Corp., 26 F.3d 728, 734 (7th Cir. 1994), a State is not a “person” subject to § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 2312 (1989). In this case, defendants are Illinois officials; thus, Mack’s claim against them in their official capacities as IDOC officials, are outside the scope of § 1983. Furthermore, Mack’s claim against defendants in their official capacities is barred under the Eleventh Amend- ment. Garcia v. City of Chicago, Ill., 24 F.3d 966, 969 (7th Cir. 1994). “The Eleventh Amendment prohibits fed- eral courts from deciding suits brought by private litigants against states or their agencies, and that prohibition ex- tends to state officials acting in their official capacities.”’ Id. This general rule is not without an exception. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908). The doc- trine of Ex parte Young, however, is a narrow exception which the United States Supreme Cuvurt has declined to provide expansive effect. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 113 S. Ct. 684, 688 (1993); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 909 (1984); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 1357-58 (1974). The excep- tion only applies to “prospective relief, does not permit judgments against state officers declaring that they vio- lated federal law in the past and has no application in suits against the States and their agencies, which are barred regardless of the relief sought.’”’ Puerto Rico Aqueduct, 113 S. Ct. at 688 (citation omitted). In the in- stant matter, Mack complains of defendants’ conduct in 1992 and 1993 and requests monetary relief. According- ly, the general rule bars the claim against defendants in their official capacities. App. 22 State officials sued in their individual capacities are, however, “persons” for purposes of § 1983 and may be subject to liability. Hafer, 112 S. Ct. at 360. Nonetheless, Mack’s claim against defendants in their individual capaci- ties does not fare any better. To state a cause of action under § 1983 against defendants in their individual capaci- ties, Mack must establish two elements: (1) that defen- dants were acting under color of state law; and (2) that their conduct deprived plaintiff of his federal rights. Par- ratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 1912-13 (1981); Procopio v. Johnson, 994 F.2d 325, 328 (7th Cir. 1993); Letisha A. by Murphy v. Morgan, 855 F. Supp. 943, 947 (N.D. Ill. 1994). Defendants do not challenge the suf- ficiency of the complaint as it relates to the first element. They do, however, contend that Mack fails to establish the second element in his complaint. It is well established that prison inmates retain the right to freely exercise their religious beliefs under the Free Exercise Clause of the First Amendment. Alston v. De- Bruyn, 13 F.3d 1036, 1039 (7th Cir. 1994). The right of a lawfully incarcerated individual under the Free Exer- cise Clause, however, is not as expansive as the right of a non-incarcerated individual. O’Lone v. Estate of Shabazz, 107 S. Ct. 2400, 2404 (1987); Richards v. White, 957 F.2d 471, 474 (7th Cir. 1992). With lawful incarceration, many privileges and rights, including the right to exercise re- ligion, are restricted and limited. Jd. (citing Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049, 1060 (1948)). Prison officials are required to make only a reasonable effort to provide the inmates an opportunity to practice their re- ligion. Alston, 13 F.3d at 1039. “The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives— including deterrence of crime, rehabilitation of prisoners, and institutional security.”” O’Lone, 107 S. Ct. at 2404. App. 23 The court recognizes that Cofigress enacted the Reli- gious Freedom Restoration Act of 1993 (“Act”), 42 U.S.C. § 2000bb, et seg., “to restore the compelling interest test as set forth in [Sherbert v. Verner,] 374 U.S. 398 (1963) and [Wisconsin v. Yoder,] 406 U.S. 205 (1972) and to guar- antee its application in all cases where free exercise of reli- gion is substantially burdened... .” 42 U.S.C. § 2000bb(b). The Act provides a statutory claim or defense to those individuals whose religious freedom is “substantially bur- dened” by a governmental entity. Means v. Wortham, 115 S. Ct. 460, 460 n.1 (1994) (mem.). The Act, however, has no application in this case because the complaint fails to establish that defendants “substantially burdened” Mack’s exercise of his belief. See Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994). The allegations in this case demonstrate that, while Mack was incarcerated in Stateville, defendants made a reasonable effort to provide him an opportunity to prac- tice his faith during the month of Ramadan in 1992 and 1993. Defendants gave Mack the opportunity to purify his body before being escorted to the cafeteria and permitted to worship and pray with other followers in the cafeteria. While the allegations establish that worshipers were un- able to do certain things during prayer, the allegations do not rise to the level of “substantial burden.” The al- leged restrictions imposed by the physical limitations of the facility may interfere with the desired method of prayer, but the restrictions do not trespass upon Mack’s ability to retain and worship the principle that is central to Islam. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1393 (9th Cir.), cert. denied, 115 S. Ct. 510 (1994). Thus, Mack fails to satisfy the second element necessary to state a § 1983 claim against defendants in their individual ca- pacities. App. 24 CONCLUSION For the foregoing reasons, the motion of defendants to dismiss the complaint is granted and the complaint dis- missed with prejudice. IT IS SO ORDERED. ENTER: CHARLES RONALD NORGLE, SR., Judge United States District Court DATED: January 9, 1995 App. 25 [Dated March 9, 1994] IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JOHN LIPSCOMB-BEY, Plaintiff, CAUSE NO. 92-CV-31-WDS vs. HOWARD PETERS, GEORGE C. WELBORN, ALAN FRENTZEL and LEO HAYES, Defendants. Ne Ne eee ee ee ee ee ee ee ee MEMORANDUM AND ORDER STIEHL, District Judge: This matter was submitted to Magistrate Judge Gerald B. Cohn for an evidentiary hearing pursuant to McCar- thy v. Bronson, 500 U.S. 136 (1991). The magistrate recommends that judgment be entered for the defendants and against plaintiff in this cause of action. Plaintiff has filed objections to the magistrate’s findings of fact and conclusions of law; therefore the Court will make a de novo review of the record pursuant to 28 U.S.C. § 636(bX1). At the time of the occurrences relevant to this action, plaintiff was incarcerated at the Menard Correctional Center, Chester, Illinois. Pursuant to 42 U.S.C. § 1983, plaintiff filed this action alleging that defendants violated his First Amendment right to practice his religion and his Equal Protection rights by canceling a religious ban- App. 26 quet scheduled to celebrate a holiday honored by the Moorish Science Temple of America. Plaintiff has filed general objections to the magistrate’s findings of fact. Plaintiff repeatedly objects to the magis- trate’s failure to make findings regarding banquets or pic- nics at other Illinois Department of Corrections facilities. However, at the hearing, the magistrate properly sustain- ed all objections to questions on this subject as irrelevant, and evidence on this subject was not presented to the Court. Upon review of plaintiff's objections and the trar script of the July 22-23, 1993 evidentiary hearing, the Court ADOPTS the magistrate’s factual findings. Inmates retain the protections afforded by the First Amendment, including its directive that no law shall pro- hibit the free exercise of religion. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). While such constitu- tional rights exist during incarceration, “lawful incarcera- tion brings about the necessary withdrawal of many privi- leges and rights, a retraction justified by the considera- tions underlying our penal system.” /d., quoting Price v. Johnston, 334 U.S. 266, 285 (1948). To ensure that appro- priate deference is afforded to prison officials, a prison regulation which impinges inmates’ constitutional rights is valid “if it is reasonably related to legitimate peno- logical interests.” surner v. Safley, 482 U.S. 78, 89 (1987). The Supreme Court has recognized four factors relevant in determining the reasonableness of defendants’ decision to cancel the January 8 banquet: (1) a valid, logical, and neutral connection between the prison regulation and the purported governmental interest; (2) alternative means of exercise of religion; (3) the impact the asserted right would have on security, other inmates, and general alloca- tion of prison resources; and (4) the absence of ready alter- natives. Jd. at 89-91. App. 27 Evidence presented at the hearing established that de- fendants canceled the January 8 banquet in accordance with a policy that individual religious denominations can- not have a banquet or picnic. This policy stems from the fact that hundreds of separate religious denominations exist at Menard, and allowing each group to have a banquet would endanger the security of the facility and overbur- den strained financial resources. Thus, the defendants’ decision to deny the banquet has a logical ard neutral con- nection to legitimate interests, and the decision is based on concerns of security and resource allocation. The defen- dants’ decision comports with the other factors articulated in Turner, as members of the Moorish Temple are per- mitted to attend religious services, or celebrate the Jan- uary 8 holiday in ways other than the proposed banquet. Moreover, plaintiff's freedom to exercise his religion has not been violated because plaintiff was allowed to partici- pate in a religious service sufficient to satisfy the obliga- tion to respect the January 8 holiday. Prisoners are also protected by the Equal Protection Clause of the Fourteenth Amendment, Turner, 482 U.S. at 84, but the Equal Protection Clause does not guarantee absolute equality. French v. Heyne, 547 F.2d 994, 997 (7th Cir. 1976). The magistrate concluded that the evidence did not show an Equal Protection violation, and plaintiff ob- jects to this conclusion on the grounds that another group was allowed to have a banquet but that defendants refus- ed to allow the Moorish Science Temple of America ban- quet despite knowing the differences between the Moorish Temple and other Muslims. The fact that one organiza- tion had an indoor banquet does not establish an Equal Protection violation. Testimony indicated that the Moors were given various opportunities to have a picnic or ban- quet, but that the Moors rejected the proposals allowed App. 28 by prison officials. The four-factor analysis articulated above applies equally to establish that the decision to cancel the January 8 banquet was reasonably related to legitimate penological interests, and did not violate the Equal Protection Clause. In addition, even if defendants knew of the differences between Moors and other Muslims, plaintiff failed to show invidious discrimination or that defendants “singled out a particular group for disparate treatment and selected [a] course of action at least in part for the purpose of causing its adverse effects on the iden- tifiable group.” Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982). To establish a § 1983 claim against a supervisory official, evidence must show a defendant’s personal responsibil- ity for the claimed deprivation of a constitutional right. Wellman v. Faulkner, 715 F.2d 269, 275 (7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984). No evidence presented at the hearing indicated that defendant Peters approved, or even was aware of the decision at issue, therefore Peters cannot be held liable. Upon review of plaintiff's objections, the transcript of the July 22-23, 1993 evidentiary hearing, and applicable law, the Court ADOPTS the magistrate’s conclusions of law. The Court enters judgment in favor of defendants Howard Peters, George C. Welborn, Alan Frentzel, and Leo Hayes and against plaintiff John Lipscomb-Bey. The Clerk of the Court is directed to enter judgment accord- ingly. IT IS SO ORDERED. DATED: March 9, 1994 /s/ William D. Stiehl DISTRICT JUDGE —————— App. 29 [Dated July 27, 1993] IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JOHN LIPSCOMB-BEY, Plaintiff, vs. Civil No. 92-31-WDS HOWARD PETERS, GEORGE C. WELBORN, ALAN FRENTZEL and LEO HAYES, Defendant. eee eee ee ee ee ee ee REPORT AND RECOMMENDATION This Report and Recommendation is respectfully sub- mitted to Chief Judge William D. Stiehl pursuant to 28 U.S.C. § 636(bX1XB). Plaintiff, an inmate at the Menard Correctional Cen- ter, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on January 21, 1991. On July 17, 1992, the district court consolidated plaintiff's cause of action into the pres- ent case. On June 16, 1993, this matter was referred by the dis- trict court for an evidentiary hearing pursuant to Mc- Carthy v. Bronson, ___. U.S. ___, 111 S.Ct. 787 (1991). The evidentiary hearing commenced before this court on July 22, 1993, and concluded July 23, 1993. The Court, having considered the pleadings, the testimony of wit- nesses, the documents in evidence and being fully advis- App. 30 ed in the premises, hereby makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Piaintiff, John Lipscomb-Bey, was at all times rele- vant herein an incarcerated person held in the custody of the Illinois Department of Corrections at the Menard Correctional Center, Chester, Illinois. 2. The plaintiff is a devoted adherent to a religious group known as the Moorish Science Temple of America which is based upon various tenets of the Islamic or Muslim faith. While the religion is based upon Islam, it is sufficiently different from other Muslim sects as to re- quire separate religious services. 3. Defendant, Howard Peters, III, was at all times rele- vant herein an employee of the Illinois Department of Corrections who served as Director during the period of time in question. 4. Defendant, George C. Welborn, was at all times rele- vant herein an employee of the Illinois Department of Corrections who served as Warden of the Menard Cor- rectional Center during the period of time in question. 5. Defendant, Alan Frentzel, was at all times relevant herein an employee of the Illinois Department of Correc- tions who served as Assistant Warden of Programs for the Menard Correctional Center during the period of time in question. 6. Defendant, Leo Hayes, a Roman Catholic priest, was at all times in question an employee of the Illinois Depart- ment of Corrections who served as Senior Chaplain for the Menard Correctional Center during the period of time in question. App. 31 7. The Moorish Science Temple of America is a branch of the Muslim faith. Adherents of this religion are not required to observe the fast of Ramadan, but are required to celebrate the birthday of their beloved Prophet Noble Drew Ali which is on January 8. 8. Testimony by Robert Love-El, Grand Sheik or the national leader of the Moorish Science Temple of America, indicated that the prophet’s birthday is celebrated with speeches honoring the prophet and a recitation of the Koran. In free society, Brother Love-E] stated that the celebration is accompanied by feasting and an exchange of gifts. According to testimony, this custom has been observed for sixty years within the faith. 9. Brother Love-E] further testified that while the feasting and gift-giving are part of the celebration, attend- ance at a religious service will satisfy all religious obliga- tions. 10. Although the members of the M.S.T.A. have not been allowed to have a religious banquet on or about Jan- uary 8, their feast day, adherents of the religion are per- mitted a religious service to celebrate the prophet’s birth- day and can celebrate on that day specifically. 11. Religious groupings at the Menard Correctional Center have been divided into four main “umbrella” groups modelled upon the scheme utilized by the United States Army. Under this group, faiths are classified as Jewish, Catholic, Islamic or Protestant. 12. The Menard Correctional Center has three chaplains to minister to the four religious groups. Under the um- brella scheme, defendant, Leo Hayes is responsible for the Catholic and Jewish services; Iman Abdur Mu’Min is responsible for Muslim services; and, Rev. William Van Buren for Protestant services. App. 32 13. By dividing the various religious faiths into the four umbrella groups, the chaplains at the Menard Correctional Center are able to supervise and to provide some degree of religious worship to adherents of the approximately 300 religious sects which exist in the United States today. 14. If a religious group within the prison does not want to utilize the services of a prison chaplain, that group may have an outside volunteer minister acceptable to the pris- on authorities provide services. 15. Each of the religious umbrella groups is allowed to have a picnic day at the Menard Correctional Center during the summer. At the picnic, each inmate is allow- ed to have outside guests and a festive atmosphere is en- couraged. 16. According to defendant Frentzel, the picnics are a good and positive experience for the inmates designed to provide a pleasurable hour of fellowship with families and other inmates. One principle purpose of the picnic is to allow inmates to maintain or re-establish ties to the out- side. 17. Specific religious denominations are not allowed to have picnics on their own. 18. Testimony indicated that the Menard Correctional Center cannot accommodate each and every religious group with a picnic. The institution would prohibit all picnics rather than attempt to cater to each and every religious group. 19. In the summer of 1990, the M.S.T.A. did not at- tend the picnic held on the yard for members of the vari- ous umbrella groups. Failure to attend was apparently based upon a belief that the institution would allow them to have a feast celebrating the prophet’s birthday. App. 33 20. Since the M.S.T.A. did not have a picnic, it was decided to allow them to have a feast/banquet on a one time cnly basis in March of 1991. 21. It is unquestioned that the M.S.T.A. attempted to have a religious feast in January of 1991, which was canceled by the defendant Frentzel. In denying the ban- quet, defendant Frentzel considered security concerns, problems with seating guests in the gym/multi-purpose building and in accommodating guests at night within the institution. 22. After attempting to organize and gain approval for the one time feast, the event was also canceled because the plaintiff would not agree to the date or the restric- tions placed by the defendants on the feast. According to testimony, the plaintiff was not happy and felt that more people should have been placed on the list tc at- tend the banquet. 23. While the administration at Menard would not ap- prove a feast day which would have attendance by out- side family members, members within the institution could have celebrated with their own feast. However, the M.S.T.A. members were adamant that family members from the outside had to attend the function. 24. One difference between the picnic and the M.S.T.A. banquet was the time of year. January 8 is in the winter and would have required the use of the multi-purpose building to accommodate the inmates and their guests. This creates problems with the introduction of large groups of outside people into the institution and could cause a breach in security since the administration does not want to bring outside people into a maximum secu- rity institution. In contrast, the summer picnics are held App. 34 outside the institution on the front yard between May and October. 25. Picnic type functions are also limited by financial and manpower constraints. Because of the change or prior- ity caused by the outside functions, other programs may suffer. 26. Howard Peters, as Director of the Illinois Depart- ment of Corrections, was not involved in the decision to cancel the banquet/feast celebrating the birth of Prophet Noble Drew Ali in 1991. The decision to cancel was made by Asst. Warden Frentzel after consultation with Warden Welborn. 27. Prior to the evidentiary hearing subpoenas were issued to Imam Abdur Mu’Min, George Welborn, Howard Peters, III, Alan Frentzel, Fr. Leo Hayes, Alan Page, Bro. Clifford Warner-Bey and Bro. Robert Love-El. While the subpoenas were issued they were not accompanied by the requisite witness fees or mileage. 28. The following Conclusions of Law insofar as they may be considered Findings of Fact are so found by this court to be true in all respects. CONCLUSIONS OF LAW 1. This Court has jurisdiction over the parties pursuant to 28 U.S.C. § 1343. 2. The claim stated in this cause of action is that the defendants violated the plaintiff's First Amendment rights by canceling a scheduled religious banquet to celebrate the birth of the prophet Noble Drew Ali and refusing to accommodate their desire to have a religious feast with outside guests. App. 35 3. It is well established that although prisoners are af- forded certain rights while in prison, these rights may be limited or withdrawn under certain circumstances. Price v. Johnston, 334 U.S. 266, 285 (1948). An inmate retains those “First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate peno- logical objectives of the penal system,” Pell v. Procunier, 417 U.S. 817, 822 (1974). 4. In limiting an inmate’s First Amendment rights, prison officials may consider such goals as security, order and rehabilitation. Pell at 822-826. Finally, as the Supreme Court stated in Turner v. Safely, 482 U.S. 78 (1987), “{ilf Pell, Jones, and Bell have not already resolved the ques- tion posed in Martinez, we resolve it now; when a prison regulation impinges an inmate’s constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interest.” 5. Inmates in a penal institution retain a First Amend- ment right to the free exercise of religion. Cruz v. Beto, 405 U.S. 319 (1972). 6. While the freedom to believe is absolute, the exer- cise of religion is not. Childs v. Duckworth, 705 F.2d 915, 920 (7th Cir. 1983). 7. A prison regulation impinging on an inmate’s First Amendment right concerning the exercise of his religion is valid when based upon legitimate security concerns. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 351-52 (1987). 8. States may make non-discriminatory religious deter- minations that have the effect of impinging (even to a great extent), the ability to practice religion. Employment Division v. Smith, __. U.S. ___. , 110 S.Ct. 1595 (1990); Hunafa v. Murphy, 907 F.2d 46 (1990). App. 36 9. The treatment of prison inmates is protected by the Equal Protection Clause of the Fourteenth Amendment. Cruz v. Beto, 405 U.S. 319 (1972); Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir. 1978), cert. denied, 439 U.S. 1121 (1979). The Equal Protection Clause does not guarantee absolute equality or precisely equal advantages. French v. Heyne, 547 F.2d 994, 997 (7th Cir. 1976). In a suit for violations of plaintiff's equal protection rights, the plain- tiff must demonstrate intentional or purposeful discrimina- tion to show that plaintiff's equal protection rights have been violated. Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982). The requirement of a discriminatory purpose “im- plies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action, at least in part, for the purpose of causing its adverse effects on the identifiable group. . . . An administrative decision which misinterprets or distorts a valid state law can result in a denial of equal protection if there is such a design or intent to discriminate.” Id. 10. The Court concludes that the defendants did not improperly cancel the scheduled M.S.T.A. feast honoring the birthday of the Prophet Noble Drew Ali. Testimony established that individual religious denomination are not allowed to have separate banquet/feasts. These type of activities must be conducted within the umbrella groups establish by the institution to ensure that each inmate have equal access to the facilities. As further established, the burden that would be placed upon the institution to allow each religious group their own picnic and feasts would render the activities unworkable. The plaintiff is allowed to ceiebrate the prophet’s birthday as required. The failure of the institution to allow the feast does not rise to constitutional import. App. 37 ll. In Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983), the Court stressed that § 1983 creates 2 cause of action based upon personal liability and predicated upon fault. An individual cannot be held lable in a § 1983 ac- tion unless he caused or participated in an alleged consti- tutional deprivation. McBride v. Soos, 679 F.2d 1223 (7th Cir. 1982); Adams v. Pate, 445 F.2d 105 (7th Cir. 1971). Without a showing of direct responsibility for the im- proper action, liability will not lie against a supervisory official. A causal or an affirmative link between the mis- conduct complained of in the official suit is necessary. Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). In short, individual liability is predicated upon personal responsibility. Schultz v. Bawmgart, 738 F.2d 231, 238 (7th Cir. 1984). To establish personal involvement, the plain- tiff must establish (1) that the defendant acted or failed to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or (2) the conduct which caused the constitutional deprivation occurred either at the defen- dant’s direction or with his knowledge and consent. Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982); Wellman v. Faulkner, 715 F.2d 269, 275 (7th Cir. 1983); cert. denied, 468 U.S. 1217 (1983). Finally, to establish a claim against a supervisory official, there must be a showing that the official knowingly, willingly or at least recklessly cause the alleged deprivation by his action or failure to act. Smith v. Rose, 761 F.2d 360 (7th Cir. 1985); Rascon v. Hardiman, 803 F.2d 269 (7th Cir. 1986). 12. The Court further concludes that defendant, Howard Peters, did not violate the constitutional rights of the plaintiff in denying him a scheduled religious feast. Tes- timony established that Director Peters was not involved in the decision to cancel the feast honoring the birth of the prophet Noble Drew Ali. Furthermore, liability can- App. 38 not be established based upon defendant Peters’ position as Director of the Illinois Department of Corrections. 13. Title 28, United States Code § 1654 provides that parties may plead or conduct their own cases personally or by counsel. Federal Rule of Civil Procedure 45(c) does not require the attendance at trial of parties who are not furnished witness fees of mileage. Accordingly, the failure of defendants Peters or Welborn to attend the evidentiary hearing cannot be held against them. Accordingly, it is the recommendation of this Court that judgment be entered for the defendants and against the plaintiff.in this cause of action. Dated this 27th day of July, 1998. GERALD B. COHN UNITED STATES MAGISTRATE JUDGE App. 39 CHAPTER 21B. RELIGIOUS FREEDOM RESTORATION § 2000bb. Congressional findings and declaration of purposes (a) Findings. The Congress finds that— (b) (1) the framers of the Constitution, izing free exercise of religion as an unalienable righ t, secured its protection in the First Amendment to the Consti- tution; (2) laws “neutral” toward religion may burden reli- gious exercise as surely as laws intended to interfere with religious exercise; (3) governments should not substantially burden re- ligious exercise without compelling justification; (4) in E yment Division v. Smith, 494 U.S. 872 (1990) the Court virtually eliminated the re- quirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and com- peting prior governmental interests. Purposes. The purposes of this Act are— (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guar- antee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by govern- ment. App. 40 § 2000bb-1. Free exercise of religion protected (a) In general. Government shall not substantially bur- den a person’s exercise of religion even if the burden results from a rule of general applicability, except as pro- vided in subsection (b). Me (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. (c) Judicial relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial p and obtain appropriate relief against a government. Stand- ing to assert a claim or defense under this section shall be governed by the general rules of standing under arti- cle III of the Constitution. § 2000bb-2. Definitions As used in this Act— (1) the term “government” includes a branch, de- partment, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State; (2) the term “State” includes the District of Colum- bia, the Commonwealth of Puerto Rico, and each ter- ritory and possession of the United States; (3) the term “demonstrates” means meets the bur- dens of going forward with the evidence and of per- suasion; and (4) the term “exercise of religion” means the exer- cise of religion under the First Amendment to the Constitution. App. 41 § 2000bb-3. Applicability (a) In general. This Act applies to all Federal and State law, and the implementation of that law, whether stat- utory or otherwise, and whether adopted before or after the enactment of this Act [enacted Nov. 16, 1993]. (b) Rule of construction. Federal statutory law adopted after the date of the enactment of this Act [enacted Nov. 16, 1993] is subject to this Act unless such law explicitly excludes such application by reference to this Act. (c) Religious belief unaffected. Nothing in this Act shall be construed to authorize any government to burden any religious belief. § 2000bb-4. Establishment Clause unaffected Nothing in this Act shall be construed to affect, inter- pret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establish- ment Clause’’). Granting government funding, benefits, or exemptions, to the extent permissible under the Establish- ment Clause, shall not constitute a violation of this Act. As used in this section, the term “granting’’, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding benefits or exemptions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1354%3A1. Public record. Not legal advice.