Petition for Writ of Certiorari — Walsh v. Ward

93-1086

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

JESSIE WALSH,

Petitioner,

V.

JASON McKINLEY WARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

NINTH CIRCUIT

FRANKIE SUE DEL PAPA

Attorney General of the

State of Nevada

BROOKE A. NIELSEN

Assistant Attorney General

THOMAS J. RAY

Solicitor General

ANNE B. CATHCART*

Sr. Deputy Attorney General

Litigation Division

Capitol Complex

Carson City, Nevada 89710

Phone: (702) 687-4170

Counsel for Petitioner

*Attorney of Record

QUESTIONS PRESENTED

I. WHETHER THE DECISION OF THE COURT

OF APPEALS IMPROPERLY FAILED TO APPLY, IN

A PRISON SETTING, THE STANDARD SET FORTH

IN EMPLOYMENT DIV’ SION, DEPARTMENT OF

HUMAN RESOURCES V. SMITH, 494 U.S. 872

(1990) AS TO THE APPLICATION OF CONTENT-

NEUTRAL REGULATIONS INCIDENTALLY

IMPACTING RELIGIOUS BELIEFS.

II. WHETHER THE COURT OF APPEALS IS

OBLIGATED TO APPLY THE SMITH STANDARDS

BEFORE APPLYING THE STANDARDS SET FORTH

IN O’LONE V. ESTATE OF SHABBAZ, 482 U.S.

342 (1987) AND TURNER V. SAFELY, 482 U.S.

78 (1987) REGARDING RESTRICTIONS OF

RELIGIOUS PRACTICES IN A PRISON SETTING.

TOPICAL INDEX

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS AND JUDGMENTS BELOW

JURISDICTIONAL STATEMENT

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT ERRED IN

HOLDING THE SMITH CASE HAS NO

APPLICATION IN A PRISON SETTING.

II1.SUBJECTING CONTENT-NEUTRAL

PRISON REGULATIONS WHICH

INCIDENTALLY IMPACT UPON

RELIGIOUS BELIEFS OF INMATES TO

THE ANALYSIS OF O’LONE AND

TURNER IMPROPERLY INFRINGES

UPON THE DUE DEFERENCE COURTS

MUST AFFORD CORRECTIONAL

PROFESSIONALS.

A. Other Circuits Are

Divided On This Issue.

1. Seventh Circuit

2. Third Circuit

3. Sixth Circuit

B. The Ninth Circuit Erred

in Holding Smith Did

Not Apply.

CONCLUSION

iii

11

13

19

e) t’d

APPENDIX A (Ninth Circuit Opinion --

July 30, 1993

APPENDIX B (Ninth Circuit Order --

Sept. 17, 1993

iii

TABLE OF AUTHORITIES

ASE

Bell v. Wolfish

441 U.S. 520 (197

9)

Employment Division, Dept. of Human

Resources v. Smith

494 U.S. 872 (199

Hunafa v. Murphy

907 F.2d 46 (7th Cir.

0)

6,10,13,15,18

1990)

9,14

Jones v. North Carolina Prisoners’

Labor Union, Inc.

433 U.S. 119 (197

7)

O’Lone v. Estate of Shabbaz

482 U.S. 342 (198

Pell v. Procunier

417 U.S. 817 (197

7)

4)

Salvation Army v. N.J. Dept.

of Community Affairs

919 F.2d 183 (3d Cir.

Turner v. Safely

482 U.S. 78 (1987

United States v. Lee

455 U.S. 252 (198

)

3)

1990)

Vandiver v. Hardin County Bd.

of Education

925 F.2d 927 (6th Cir.

Ward v. Walsh

No. 91-15427

Washington v. Harper

eS

’

110 S.Ct. 1028 (1990)

TN |

iv

1991)

17,18

4,6,8,11,15

11,14

11,14

No.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

JESSIE WALSH,

Petitioner,

Vv.

JASON MCKINLEY WARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

NINTH CIRCUIT

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT:

COMES NOW JESSIE WALSH, and Frankie

Sue Del Papa, Attorney General of the

State of Nevada, and file this petition

for writ of certiorari seeking to vacate

the Opinion of the Ninth Circuit Court of

Appeals insofar as the issue presented

herein.

OPINIONS AND JUDGMENTS BELOW

The Opinion of the United States Court

of Appeals was filed on July 30, 1993,

and is reproduced in Appendix A. Ward v.

Walsh, No. 91-15427. The petitioner

filed a Petition for Rehearing and

Suggestion for Rehearing En Banc on

August 12, 1993. The Petition for

Rehearing was denied on September 17,

1993 and is reproduced in Appendix B.

The Order entering judgment in favor of

defendant, which immediately preceded the

circuit court litigation, was entered

February 26, 1993.

JURISDICTIONAL STATEMENT

This is a civil rights action filed

under 42 U.S.C. § 1983 in the United

States District Court for the District of

Nevada. A bench trial was conducted

February 26, 1991. The district court

found for the defendant, JESSIE WALSH, on

all issues, and entered its judgment in

2

ieee

favor of defendant on February 26, 1991.

[Appendix C]. Plaintiff filed his Notice

of Appeal from the district court’s order

of judgment on March 20, 1991.

The Opinion of the Ninth Circuit Court

of Appeals was filed July 30, 1993

[Appendix A]. Appellee filed a Petition

for Rehearing and Suggestion for

Rehearing En Banc on August 12, 1993,

which was denied by the Court of Appeals

on September 17, 1993 [Appendix B]. This

petition for writ of certiorari is being

filed within ninety days of the denial of

the Petition for Rehearing and Suggestion

for Rehearing En Banc. Sup.Ct.R. 13.

The jurisdiction of this Court is invoked

under section 1254(1) of Title 28 to the

United States Code.

STATEMENT OF THE CASE

Respondent Jason McKinley Ward

(hereinafter "Ward") filed a civil rights

complaint on June 22, 1989, alleging

violations of his First Amendment rights

under the United States Constitution, as

a result of his being rest” icted from

practicing his religion. Ward sought

injunctive relief only.

The parties filed their proposed joint

pretrial\order on August 8, 1990. The

issue set forth therein which is relevant

to this petition is:

1. Whether respondent’s rights under

the First Amendment to the United

States Constitution were violated by

petitioner’s refusal to provide

respondent with a diet consistent with

respondent’s religious beliefs?

Following a one-day bench trial before

the United States District Court,

District of Nevada, judgment was entered

in favor of the defendant as to all

issues. The judge, relying on O’Lone and

Turner, found, as a matter of law and

under the facts presented, the defendant

was not required to provide plaintiff

with a diet consistent with his religious

beliefs.

On appeal, Ward raised several issues

which were decided by the Ninth Circuit

Court of Appeals. The Ninth Circuit

ruled in favor of the defendant on all

issues except the issue of providing Ward

with a diet consistent with his religious

beliefs. The issue relevant to this

Petition which was presented to the Ninth

Circuit was:

1. Whether the Court was obligated to

apply the content-neutral analysis

under Smith prior to applying the

standards under O’Lone and Turner in a

prison setting as to any requirement

to provide Ward with a diet consistent

with his religious beliefs.

SUMMARY OF THE ARGUMENT

This is an unusual case of national

significance which has far-reaching

impact on (1) the cost of operating state

correctional facilities; (2) the ability

of legislatures and prison administrators

to effectively manage state prisons; (3)

the impact of religious claims by inmates

upon the ability of administrators to

effectively run state prisons; and (4)

the cost to the public of defending

against inmate civil rights lawsuits.

The Ninth Circuit Court of Appeals has

ruled in this case that Employment

Divisi Dept fH :

Smith, 494 U.S. 872 (1990) has no

application to a prison setting.

(Appendix A, pp. 8051-8052).

The issue presented herein is whether

an otherwise content-neutral policy is

subject solely to the analysis applied to

prison religious claims under QO’Lone and

Turner or whether a court is obligated to

apply the Smith analysis first.

There is a split among the Circuit

Courts as to the application of this

Court’s decision in Smith in a prison

setting and its application to civil and

state regulatory laws. The Ninth Circuit

refuses to apply Smith to a state

regulation which is content-neutral.

Every other circuit to consider the issue

has applied Smith to content-neutral

state regulations.

The implications of the application of

Smith to a prison setting are broad and

should focus on the due deference z*1

courts should give correctional

professionals in the difficult and

expensive task of running this country’s

prison systems. Bell v. Wolfish, 441

U.S. 520 (1979); Pell v. Procunier, 417

U.S. 817 (1974).

This split among the circuits as to

the application of Smith must be resolved

to provide consistent guidelines for

prison authorities, who contend with

increasing and competing religious

demands, limited budgets and safety and

security concerns. In rejecting the

application of Smith in a prison setting,

the Ninth Circuit Court of Appeals has

ee a a: rN NT eT

granted greater constitutional protection

to inmates than to private citizens.

Permitting inmates to bring First

Amendment claims involving prison

regulations which are otherwise content-

neutral without first applying Smith

takes from prison officials the

discretion and flexibility necessary to

properly, safely and cost-efficiently run

a prison with competing demands.

Compelling prison officials to tailor

regulations which are not designed to

address religious beliefs, and to tailor

each and every prison regulation so as

not to offend religious beliefs, would be

a tremendous burden directly impacting

the safety and security of prisons.

REASONS FOR G TING THE WRIT

I. THE NINTH CIRCUIT ERRED IN HOLDING THE

SMITH CASE HAS NO APPLICATION IN A

PRISON SETTING.

Il. SUBJECTING CONTENT-NEUTRAL PRISON

REGULATIONS WHICH- INCIDENTALLY

IMPACT UPON RELIGIOUS BELIEFS OF

INMATES TO THE ANALYSIS OF O’LONE

8

AND TURNER IMPROPERLY INFRINGES

UPON THE DUE DEFERENCE COURTS MUST

AFFORD CORRECTIONAL PROFESSIONALS.

A. Other Circuits Are Divided On

This Issue.

1. Seventh Circuit

The Ward opinion was issued July 30,

1993 by Circuit Judges Choy, Noonan and

O’Scannlain. In Hunafa v. Murphy, 907

F.2d 46 (7th Cir. 1990), the Seventh

Circuit held that the Smith decision "cut

back to minute dimensions" the doctrine

that requires government to accommodate

at some cost minority religious

preferences in a prison setting. In

applying Smith, the Hunafa Court held

that a prison’s dietary policy was the

equivalent of a general secular

regulation that incidently happens to

interfere with the free exercise of

religion.

2. Third Circuit

The Third Circuit Court of Appeals has

held that Smith applies to both criminal

and civil cases. Salvation Army v. N.J.

Dept. of Community Affairs, 919 F.2d 183,

194 (3d Cir. 1990). Specifically, the

Third Circuit held "the rationale of the

Smith opinion is not logically confined

to cases involving criminal statutes."

Salvation Army, 919 F.2d at 195.

The Ninth Circuit’s determination

Smith has no application to a prison

setting and is restricted to criminal

cases only, was specifically rejected by

the Third Circuit. "We see no reason why

application of the compelling interest

test to free exercise exemption claims

concerning criminal statutes would be any

more of a ‘constitutional anomaly’ than

application to civil statutes."

Salvation Army, 919 F.2d at 195-196.

Civil statutes must first be analyzed

under the Smith test prior to applying

the compelling interest test in the

private sector. Salvation Army, 919 F.2d

10

ee

at 193. The argument for this rationale

is even more compelling when applied to

prison regulations. This Court has long

required a rational basis test, not a

compelling interest test, regarding free

exercise cases involving inmates. Turner

and O’Lone; Washington v. Harper, ae

U.S. __, 110 S.Ct. 1028 (1990). The

Ninth Circuit’s refusal to apply the

analysis of Smith in the prison setting

is inconsistent with Turner, O’Lone and

Harper. This refusal gives inmates more

First Amendment protection than to

private citizens.

3. Sixth Circuit

The Sixth Circuit Court of Appeals

applies Smith to civil statutes as well

as Criminal Statutes. Vandiver v. Hardin

County Bd. of Education, 925 F.2d 927,

932 (6th Cir. 1991). The Vandiver Court

specifically ruled Smith did apply to

civil statutes, even though Smith dealt

11

with a criminal statute. The Vandiver

court found support from other circuits

as well. Id. at 932.

In Vandiver, a local school district

required students not enrolled in public

schools, but, rather, enrolled in home

study courses, to take state-mandated

equivalency tests. Students ina

religious-oriented home study program

claimed this requirement was an

impermissible infringement of their free

exercise rights under the First

Amendment.

Following this Court’s decision in

Smith, the Sixth Circuit rejected

plaintiff’s claims, holding that Smith

applied to civil as well as criminal

statutes. The Sixth Circuit found the

equivalency regulations to be content-

neutral and, thus, merely an incidental

impact upon the students’ constitutional

rights. As such, the Sixth Circuit did

12

\

not find it necessary to analyze the

impact of the content-neutral regulation

upon the students’ free exercise rights.

B. The Ninth Circuit Erred in

Holding Smith Did Not Apply.

Under Smith, content-neutral

regulations are those regulations which

do not directly and specifically

proscribe or prescribe religious

practices. The right of free exercise

does not relieve an individual of the

obligation to comply with a valid,

neutral law of general applicability on

the ground the law incidently proscribes

or prescribes conduct religion prescribes

Or proscribes. United States v. Lee, 455

U.S. 252, 263, n. 3 (1983), as cited in

Smith, 494 U.S. at 877.

In applying Smith to civil as well as

criminal statutes, circuit courts across

the country have recognized the necessity

of first determining if a statute is

content~-neutral before applying the

13

compelling interest test. Hunafa,

Salvation Army and Vandiver, supra.

Under Smith, if the statute in question

is, in fact, content-neutral, the

analysis is concluded and the statute is

constitutionally valid.

The application of the compelling

interest test in free exercise clauses is

vitally important to a free society.

However, this Court has long recognized

prisons as unique societal entities in

which constitutional analysis is applied

under a different standard. In rejecting

the strict scrutiny analysis in a prison

setting, this Court in Turner spelled out

the standard regarding prison

regulations. Turner, 482 U.S. at 89.

Since the Turner and O’Lone cases, the

courts have applied a reasonableness test

to prison regulations regarding

fundamental constitutional rights,

including religion. Harper, U.S. at

14

, 110 S.Ct. at 1037. This test is

considerably different than the

compelling interest or strict scrutiny

test for citizens outside the prison

walls.

Prior to Smith, courts analyzed a

regulation or law for its impact upon

religion, regardless of whether the

regulation or law was content-neutral.

This same analysis, albeit with a lesser

standard, existed under the O’Lone

standard prior to Smith.

The Smith case now requires courts to

look at the actual wording of the

regulation in question before looking at

its impact. If the regulation directly

mentions religion, the standards of

Turner/O’Lone/Harper must be applied ina

prison setting; if the regulation in

question is content-neutral, that is,

does not specifically address religion,

Smith holds there is no further analysis

15

as to its incidental impact on religious

practices.

In rejecting Smith, the Ninth Circuit

continues to analyze the incidental

impact of a prison regulation without |

considering whether it is content-neutral

in the first instance. This practice

places the constitutional rights of

inmates above those of private citizens.

Even more ominously, this puts inmates in

the position of dictating to prison

officials how prison facilities must be

run and scarce state-resources allocated,

in order to accommodate as many religious

practices as there are inmates.

Every other circuit which has

considered the Smith decision has

determined it applies to regulations

W.co.. the regulatory rowers of the

2ce. Thu prior t: applying the

ap)... oriate constitutional standard,

1 ol

‘oi

i... ¢ Courts made an analysis as to

16

tte

whether the regulation was content-

neutral. Despite the importance of the

appropriate constitutional test as to

impact, such tests cannot be applied

unless the regulation in question

directly and particularly mentions

religion. On the other hand, if the

regulation in question directly refers to

religion, it is then analyzed under the

appropriate standard.

Prison officials must be free to

regulate prisons and prisoners. Jones vy.

re) a isoners’ Lab ion

Inc., 433 U.S. 119 (1977); Turner,

O’Lone, Harper, supra. There is also no

question regulations impacting prisoners

are not afforded the same standard of

scrutiny as regulations which impact

constitutional rights of free citizens.

See: Jones, Turner, O’Lone, Harper,

Prior to Smith, all regulations

impacting the free exercise of religion,

whether involving prisons or private

citizens, were analyzed under the

appropriate standard, whether compelling

or reasonable. After Smith, all

regulations impacting the free exercise

of religion are now subject to an

additional initial analysis: whether the

regulation is content-neutral. Except,

according to the Ninth Circuit, prison

regulations.

By failing to apply the Smith

analysis, the Ninth Circuit is

inconsistent with this Court’s decisions

Since the Jones case. Prison regulations

should be subjected to the same content-

neutral analysis as any other law outside

the prison walls. Any other conclusion

would invalidate the mandate of this

Court in Smith.

18

CONCLUSION

For the reasons discussed above, the

State respectfully requests this Court

grant certiorari, receive briefs on the

merits, and vacate that portion of the

Ninth Circuit Court of Appeals opinion

which rejected the Smith analysis.

Respectfully submitted.

FRANKIE SUE DEL PAPA

Attorney General of

the State of Nevada

BROOKE A. NIELSEN

Assistant Attorney General

THOMAS J. RAY

Solicitor General

ANNE B. CATHCART*

Sr. Deputy Attorney General

Litigation Division

Capitol Complex

Carson City, Nevada 89710

Phone: (702)687-4170

Counsel for Petitioners

*Attorney of Record

19

APPENDICES

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON MCKINLEY WARD,

Petitioner-Appellant,

No. 91-15427

D.C. No.

CV-N-89-90265-HDM

vs.

JESSIE WALSH,

ASSOCIATE WARDEN OF

PROGRAMS, OPINI¢

Respondent-Appellee.

me ee ee ee ee ee ee eee eee

Appeal from the United States District

Court

for the District of Nevada

Howard D. McKibben, District Judge,

Presiding

Submitted November 6, 1992*

San Francisco, California

Filed July 30, 1993

Before: Herbert Y.C. Choy, John T.

Noonan, Jr., and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge O’Scannlain

*The panel unanimously finds this case

Suitable for submission on the record and

briefs and without oral arguments. Fed.

R. App. P. 34(a), Ninth Circuit R. 34-4.

SUMMARY

Individual Rights/Constitutional

Rights/CrimiLaw and Procedure

The court of appeals affirmed in part

and reversed in part a judgment of the

district court and remanded. The

appellate court held that whether an

Orthodox Jewish state prisoner’s kosher

dietary requirements could be

accommodated under Turner v. Safley, 482

U.S. 342 (1987), could not be determined

until the district court made appropriate

findings of fact on remand.

Appellant Jason Ward was the sole

Orthodox Jewish prisoner at Ely State

Prison in Nevada. He sued appellee

Jessie Walsh, an associate warden, under

42 U.S.C. Section 1983 for injunctive

relief from alleged infringements of his

free exercise of his faith, including the

failure to provide him with a kosher

diet, with clothes made from a single

fiber, with an Orthodox rabbi, and with a

aA-2

Ee

guarantee that he would not be

transported on the Sabbath.

The prison provided a pork-free diet

to prisoners requesting it, but did not

provide a full kosher diet. Because of

the remoteness of the prison’s location,

Ward did not have access to an Orthodox

rabbi. Because he was the only Orthodox

Jewish prisoner, he did not have access

to religious services and could not

congregate with other followers.

The district court did not make

findings regarding what was dietarily

forbidden by Ward’s faith, how great

would be the disruption resulting from

providing him with kosher meals, whether

the prison had explored the possibility

of such accommodation, the financial

impact of such accommodation on the

prison, or the feasibility of alternative

partial accommodations. The court gave

judgment for Walsh after a bench trial.

Ward appealed.

(1) The prison’s policy of not

providing special diets was related to

its legitimate interest in a simplified

food service. Thus, the first factor in

the rights analysis under Turner weighed

in favor of the prison.

[2] Because the prison’s location

and Ward’s status so dramatically

curtailed his religious practice,

Turner’s second factor, whether there

were alternative means of religious

practice left open, weighed in Ward’s

favor. [3] However, since denial of a

kosher diet might require Ward to defile

himself through action affirmatively

forbidden by his faith, second-factor

analysis of alternatives was hampered by

the lack of findings by the trial court.

[4] The court’s failure to make

relevant findings prevented appellate

determination of how heavily Turner’s

third factor, the impact of accommodation

on guards, other prisoners, and prison

resource allocation, might weigh in

Walsh’s favor. [5] The same was true of

the final factor, the absence of ready

alternatives to the challenged prison

practices. [6] Therefore, remand was

necessary to allow the trial court to

make appropriate findings on the second,

third, and fourth factors.

(7] Ward’s request for an injunction

against the prisons transporting him on

the Sabbath or holidays, comprising

eighty-eight days in a year, [8] was not

sustainable in light of the prison’s

policy to accommodate the religious

beliefs of prisoners when at all possible

in connection with transportation needs.

[9] Nor did the prison have an

affirmative obligation to provide an

Orthodox rabbi for Ward, [10] or to

furnish him with single fiber clothing.

COUNSEL

Jason McKinley Ward, in Propria Persona,

Ely, Nevada, for the petitioner-

appellant.

Marc P. Cardinalli, Deputy Attorney

General, Carson City, Nevada, for the

respondent-appellee.

OPINION

O’SCANNLAIN, Circuit Judge:

Jason McKinley Ward is the only

Orthodox Jewish prisoner at Ely State

Prison in Ely, Nevada. He brought suit

under 42 U.S.C. § 1983, arguing that the

prison infringes upon his First Amendment

right to exercise freely his religion by

not providing him with a kosher diet,

clothes made from a single fabric, or an

Orthodox rabbi; by not allowing him to

have candles in his cell, and by refusing

f,

to guarantee that he will not be

transported on the Sabbath. He seeks

injunctive relief only, and appeals pro

se from the district court’s judgment in

favor of the warden after a bench trial.

I

Religion is the first of our rights

under the First Amendment and the Bill of

Rights. The right to the free exercise

of religion is a precious American

invention, distinguishing our

Constitution from all prior national

constitutions. The right to the free

exercise of religion is to be jealously

guarded. It is the right of a human

being to respond to what that person’s

conscience says is the dictate of God.

It is not a right to be readily trammeled

by the state. A human being does not

cease to be human because the human being

is a prisoner of the state. "The free

exercise right, however, is necessarily

limited by the fact of incarceration, and

may be curtailed in order to achieve

legitimate correctional goals or to

maintain prison security." O’Lone v.

Shabazz, 482 U.S. 342, 348 (1987).

Turner v. Safley, 482 U.S. 78, 89 (1987),

provides the test for balancing those

interest: "When a prison regulation

impinges on inmates’ constitutional

rights, the regulation is valid if it is

reasonably related to legitimate

penological interests."

Turner set forth four factors to be

considered in determining when a

regulation is reasonably related to

legitimate penological interests. First,

there must be a "valid, rational

connection" between the prison regulation

and the legitimate governmental interest

put forward to justify it." Id. at 89.

Second, whether there are "alternative

means of exercising the right that remain

open to prison inmates" must be assessed.

Id. Third, "the impact accommodation of

the asserted constitutional right will

have on guards and other inmates, and on

the allocation of prison resources

generally" must be determined. Id.

Fourth, “the absence of ready

alternatives" to the regulation must be

explored. The "existence of obvious,

easy alternatives may be evidence that

the regulation is not reasonable." Id.

The warden argues that free exercise

claims of prisoners are no longer

governed by Turner, but instead must be

evaluated under the standard announced in

Employment Division, Department of Human

Resources v. Smith, 494 U.S. 872 (1990).

Smith held that "the right of free

exercise does not relieve an individual

of the obligation to comply with a ‘valid

and neutral law or general applicability

on the ground that the law proscribes (or

prescribes) conduct that his religion

prescribes (or proscribes) .’" Id. at 879

(citation omitted). In reaching that

conclusion, the Court noted that it had

"never held that an individual’s

religious beliefs excuse him from

compliance with an otherwise valid law

prohibiting conduct that the State is

free to regulate." Id. at 878-79.

We see no reason to depart from

Turner. The Supreme Court has held that

Turner applies to all constitutional

claims arising in prison with the

exception of Eighth Amendment claims.

See Washington v. Harper, 494 U.S. 210,

223 (1990); see also Jordan v. Gardner,

986 F.2d 1521, 1530 (9th Cir. 1993) (en

banc). Moreover, the Smith case

concerned a factual situation far

different from the one presented here.

Inmates must rely on the prison system to

provide them with the necessities of

life. Determining to what extent prison

officials must accommodate a prisoner’s

right to free exercise in fulfilling this

obligation is wholly different from

determining whether free citizens must

obey criminal laws of general

applicability.

Il

Ward argues that the prison is obliged

to provide him with a strict kosher diet

at the prison’s expense "that is

certified or deemed religiously

acceptable by an outside independent

Orthodox Jewish Organization... at the

time the food is physically served to

Orthodox Jewish inmates." The diet

requested by Ward would require the

prison not only to provide kosher food

but to store and to prepare the food ina

special manner. Moreover, Ward requests

that the food be served in an “eating

area {that is] kept kosher for all Jewish

inmates."

We have held that "{(iJnmates...

have the right to be provided with food

sufficient to sustain them in good health

that satisfies the dietary laws of their

religion.” McElyea, 833 F.2d at 198.

However, we have never determined

precisely how this right is to be

balanced against budgetary and

administrative concerns of the prison.'

(1) The warden provides a pork-free

‘Courts that have considered the question

have reached varying results. Compare,

e.g., Kahane v. Carlson, 527 F.2d 429 (2d

Cir. 1975) (pre-Turner case holding that

the Orthodox Jewish inmates are entitled

to a kosher diet; difficulties in

providing diet are surmountable) and

Whitney v. Brown, 882 F.2d 1068 (6th Cir.

1989) (prison policy which eliminated

Jewish inmates’ right to participate in

annual Passover seder was an

impermissible infringement upon the

inmates’ free exercise rights) with Kahey

v. Jones, 836 F.2d 948, 950-51 (6th Cir.

1988) (prison not required to provide

full kosher diet where doing so would be

administratively unfeasible) and

Martinelli v. Dugger, 817 F.2d 1499, 1507

n.29 (llth Cir. 1987), cert. denied, 484

U.S. 1012 (1988) (same).

A-12

diet to inmates who request is, but does

not provide a full kosher diet. Whether

the culinary policy is reasonable

requires a balancing of the degree of

intrusiveness into the right of free

exercise against the costs of

accommodation, giving appropriate

deference to prison officials’ assessment

of the costs. The Turner factors help

focus this determination. the first

Turner factor requires us to consider

whether there is a logical connection

between the policy and the legitimate

governmental interest that justifies it.

The prison has a legitimate interest in

running a simplified food service, rather

than one that gives rise to many

administrative difficulties. Kahey, 836

F.2d at 950. Since the policy of not

providing special diets is related to

simplified food service, the first factor

weighs in favor of the government.

The second Turner factor requires us

to consider whether Ward has alternative

means by which he can practice his

religion. The relevant inquiry under

this factor is not whether the inmate has

an alternative means of engaging in the

particular religious practice that he or

she claims is being affected; rather, we

are to determine whether the inmates have

been denied all means of religious

expression. O’Lone, 482 U.S. at 351-52.

In other cases, courts have found that

although some aspects of religious

practice were impinged upon, claimants

retained the ability to participate in

other significant rituals and ceremonies

of their faith. For example, although

the Muslim claimants in O’Lone were

denied the opportunity to attend Jumu’ah,

the Muslim weekly religious service, they

had the virtually unlimited right to

congregate for prayer and discussion

A-14

outside of working hours. Moreover, the

Muslim prisoners had free access to an

imam, a Muslim prayer leader, who the

state provided. Muslim prisoners were

given special meals, and special

arrangements were made during the month-

long observation of Ramadan, a period of

fasting and prayer, to allow them to take

their meals at the religiously prescribed

times. Id.

[2] In contrast, Ward’s ability to

participate in religious observances has

been significantly circumscribed within

the prison. Because of the remoteness of

the area, he does not have access to an

Orthodox rabbi. Since he is the only

Orthodox Jewish prisoner in the

institution, he does not have access to

religious services. Moreover, he cannot

congregate with other practitioners of

his faith for prayer and discussion. It

is true that Ward is encouraged to

practice other observances of his faith

privately. The district court heard

testimony from an Orthodox Jewish rabbi

that private prayer is a significant

aspect of the practice of the Jewish

religion. However, we cannot conclude

that the opportunity to engage in private

prayer is enough to satisfy the second

Turner factor as interpreted by O’Lone.

If it were, the factor would have no

meaning at all because an inmate would

always be able to pray privately. See

Sample v. Borg, 675 F. Supp. 574, 580

(E.D. Cal. 1987), vacated as moot, 870

F.2d 563, (9th Cir. 1989). In short,

because Ward’s religious practice has

been so dramatically curtailed in prison,

the second Turner factor weighs in his

favor. Cf. Kahey, 836 F.2d at 950-51

(second factor weighed in prison’s favor

because there was no indication that

Kahey had been deprived of the ability to

practice her religion in any other way).

{3} Also relevant to the evaluation

of the second factor is a distinction

O’Lone had no occasion to make: the

distinction between a religious practice

which is a positive expression of belief

and a religious commandment which the

believer may not violate at peril of his

soul. It is one thing to curtail various

ways of expressing belief, for which

alternative ways of expressing belief may

be found. It is another thing to require

a believer to defile himself, according

to the believer’s conscience, by doing

something that is completely forbidden by

the believer’s religion. In order to

determine what alternatives are open to

Ward, findings must be made as to what is

or is not forbidden by his religion. The

district court made no such findings; we

must remand so that the court can do so.

In making these findings, it will be

A-17

appropriate for the district court to

consider Ward’s challenge to the

orthodoxy of the rabbi who testified on

behalf of the state. In religious

matters, we take judicial notice of the

fact that often the keenest disputes and

the most lively intolerance exists among

persons of the same general religious

belief, who, however, are in disagreement

as to what that faith requires in

particular matters. See Thomas v. Review

Bd., 450 U.S. 707, 715-16 (1981). In

this case, Ward is entitled to argue,

with appropriate authorities, that his

religious belief is different from the

interpretation provided by the witness

for the state.

The third Turner factor requires us to

consider the “impact accommodation .

will have on guards and other inmates,

and on the allocation of prison resources

generally." Washington v. Harper, 494

A-18

U.S. 210, 225 (1990). Although the

district court made no findings regarding

this factor, we accept the warden’s

contention that if other prisoners are

not similarly accommodated, they might

well perceive Ward as being favored.

Kahey 836 F.2d at 951. "This perception

[could] have an adverse impact on prison

morale," id., causing disruption

throughout the prison. This effect,

however, is present in every case that

requires special accommodations for

adherents to particular religious

practices. While not irrelevant, it is

not in itself dispositive.

[4] More important are the

administrative difficulties that could

potentially arise in accommodating Ward’s

request. Common sense tells us that

there would be some disruption to the

efficient operation of culinary services

if the prison were required to provide a

special meal for one prisoner. The

district court, however, made no findings

regarding how great the disruption would

be. Indeed, the district court made no

findings regarding whether the prison had

explored the possibility of accommodating

Ward. Although we must give deference to

the prison official’s own assessment of

the burden on prison operations, we

cannot simply accept the warden’s

assertion on appeal that the disruption

would be significant. Likewise, the

district court made no findings regarding

the financial impact of accommodation.

Again, it is clear that providing a

kosher diet would give rise to some

expense, not only from the cost of Ward’s

meals but also from the cost of

accommodating others with similar claims

of entitlement to a religious diet. We

cannot determine how heavily this factor

weighs in the prison’s favor, however,

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because the magnitude of these costs is a

factual question for which the district

court made no findings.

(5) Finally, under the fourth

factor, we must consider whether there

are ready alternatives to the prison’s

current policy that would accommodate

Ward at de minimis cost to the prison.

"(T)he absence of ready alternatives is

evidence of the reasonableness of a

prison regulation," Harper, 494 U.S. at

225, while the existence of alternatives

may be “evidence that the [policy] is not

reasonable but is an ‘exaggerated

response’ to prison concerns," Turner 482

U.S. at 90-91. Here, the prison policy

is to limit the accommodation of

religious dietary laws to the provision

of pork-free diets. On the record before

us, we simply are unable to determine

whether reasonable alternatives to this

policy exist. Complying with every

precept of the Kashruth, the Jewish

dietary law, may involve significant

expense; however, it may be possible to

comply with the laws in substantial part

at de minimis cost. For example, it may

be possible to provide Ward with non-

defiled foodstuffs, even if the dining

area is not kept kosher. The district

court, however, made no findings

regarding the feasibility of such

alternatives; we cannot speculate about

their existence or the impact they would

have on culinary services.

[6] In the absence of sufficient

factual findings regarding the second,

third, and fourth factors, it is

impossible for us to determine whether

the denial of a kosher diet is reasonably

related to the prison’s legitimate

interest in streamlined food service. In

McElyea we established the principle that

A-22

43 . =

inmates have the right to be provided

with food that satisfies the dietary laws

of their religion. McElyea 833 F.2d at

198. Abrogation of this important right

cannot be justified by the rote |

recitation of the O’Lone standard. The

failure to provide a kosher diet may

require Ward to defile himself ina

manner not contemplated by O’Lone.

Moreover, unlike the claimants in O’Lone,

Ward’s religious practice in general has

been significantly curtailed by the fact

of incarceration in the remote prison.

In such circumstances, it is necessary to

evaluate carefully the justifications

proffered by the prison before

determining whether the Constitution

allows the intrusion into the free

exercise right of the inmate. We remand

this claim so that the district court can

make specific factual findings and can

engage in a careful balancing of all the

A-23

Turner factors.

IItI

Ward argues that he must be allowed to

have candles in his cell to observe

certain rituals of his religion. The

warden asserts that candles pose a

Significant fire hazard, and thus under

no circumstances are prisoners allowed to

have them in their cells. The Turner

factors clearly weigh in favor of the

prison officials on this claim. The

serious safety and security concerns

raised by allowing inmates to possess and

use candles outweigh the curtailment of

Ward’s religious practice. Thus, we

conclude that the regulation is

reasonably related to a legitimate

penological purpose and thus is valid

under Turner.

IV

[7] Ward argues that the warden

violated his First Amendment rights when

it transferred him to Ely on the Sabbath.

He asks for an injunction to prevent the

prison from transporting him on any

Sabbath or Jewish holiday, comprising

eighty-eight days in the year.

Again, the application of the Turner

factors leads to the conclusion that the

prison’s policy is reasonably related to

a legitimate governmental interest.

First, the prison has a legitimate

penological interest in having a

standardized, efficient transportation

system. Prisoners are transported for

medical, security, and other reasons.

According to the warden, the health,

safety, and welfare of the prisoners is

dependent upon the ability to move

prisoners quickly and efficiently when

necessary. The prison policy of not

guaranteeing that inmates will be

transported only on certain days is

logically connected to the legitimate

government interest in security and

efficient transportation.

Second, Ward does not contend that the

prison intends to transfer him on every

Sabbath. Because he can observe most

Sabbaths, we conclude that he has

alternative means of exercising his

religion as contemplated by O’Lone.

Third, a hard and fast rule that Ward

and other Jewish prisoners could never be

transported on the Sabbath or holidays

could have a significant impact on

guards, other inmates, and prison

resources. Such a policy could disrupt

the efficient administration of the

transportation system at the prison.

(8) Fourth, Ward does not offer any

alternatives that could fully accommodate

his rights at de minimis costs to valid

penological interest. The prison’s

A-26

Rte Aa at Bi. >

current transportation policy is to

accommodate the religious beliefs of the

inmates when at all possible. Given this

policy, we conclude that Ward is not

entitled to the injunction he seeks.

Vv

Ward has requested that the prison

provide him with an Orthodox rabbi.

since Ward is the only Orthodox Jewish

prisoner in the institution, the prison

does not have a rabbi on staff. It is

not clear whether the prison made any

effort to contact an Orthodox rabbi on

Ward’s behalf; however, a prison official

testified that there were no Orthodox

Jewish rabbis within a one hundred mile

radius of the prison. No rabbi has

volunteered to come to the prison. The

prison, however, in no way restricts

Ward’s ability to contact a rabbi on his

own to come into the prison, nor does it

A-27

forbid rabbis from coming into the

prison. Thus, the issue here is whether

the prison has an affirmative obligation

to provide a rabbi for Ward.

[9] We have previously held that

prison officials have no such obligation.

In Allen v. Toombs, 827 F.2d 563, 569

(9th Cir. 1987), we concluded that a

"prison administration is not under an

affirmative duty to provide each inmate

with the spiritual counselor of his

choice." Accord Cruz v. Beto, 405 U.S.

319, 322 n.2 (1972) (dicta). Thus, the

prison has not infringed upon Ward’s

right to free exercise by not providing a

rabbi.

Ward argues that he would have access

to a rabbi if he were moved to a

different prison. However, the prison

officials point out that Ward is a

maximum security prisoner, and that Ely

is the only maximum security prison in

A-28

the Nevada prison system. We cannot

conclude that Ward’s placement at Ely is

not reasonably related to a legitimate

penological purpose, and therefore, we

must affirm the district court on this

issue.

VI

Ward argues that the prison has an

affirmative obligation to provide him

with clothing that is made with only one

fiber. The prison has refused to do so,

but has informed Ward that he may provide

his own clothing as long as it conforms

to the prison dress code. All prisoners

are required to wear solid blue denim

clothing.

[10] Ward does not question the

necessity of the prison’s policy

regarding prisoners to dress uniformly.

Rather, his argument focuses on whether

the prison has an affirmative obligation

to provide him with clothing that

A-29

conforms to the dictates of his religion.

We conclude that under the Turner

standard, the prison does not have such

an obligation. The third and fourth

factors of Turner are determinative.

Allowing one prisoner to receive

preferential treatment with regard to

clothing could potentially cause

conflicts among inmates and providing

each prisoner with the clothing or other

implements necessary to the practice of

their religion would impose a cost that

would be more than de minimis. We

conclude that the prison’s policy of

allowing Ward to buy and to wear his own

clothing satisfies the Turner standard.

Vil

Ward seeks an injunction ordering the

prison to allow Jewish inmates to wear

religious jewelry, yarmulkes, and

talliths (prayer shawls). It appears,

however, that inmates are already allowed

A-30

to possess and to wear these items under

existing prison policy. Since Ward can

show no injury that can be redressed by

the injunction he seeks, he has no

standing to bring this claim. See, e.g.,

Valley Forge Christian College v.

Americans United for a Separation of

Church & State, Inc., 454 U.S. 464, 472

(1982).

VIII

In a letter of April 26, 1993,

addressed to this court, Ward has raised

a question of retaliation for bringing

this suit. We are in no position to

adjudicate this contention, but if Ward’s

claims are true, there would have been

serious interference with the

jurisdiction of this court. On remand,

we assume that the district court will

have the opportunity to examine these

contentions, which relate to Ward’s

access to this court on appeal.

A-31

Each party to bear its own costs.

AFFIRMED in part, REVERSED in part and

REMANDED.

SE eh OG ona.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON McKINLEY WARD,

Petitioner-Appellant,

No. 91-15427

B.Ce No.

CV-N-89-00265-HDM

vs.

JESSIE WALSH,

ASSOCIATE WARDEN OF

PROGRAMS, ORDER

Respondent-Appellee.

me ee ee ee ee ee eee See See”

Before: CHOY, NOONAN, and O’SCANNLAIN,

Circuit Judges.

The panel has voted to deny appellee’s

petition for rehearing. Judges Noonan

and O’Scannlain have voted to reject the

suggestion for rehearing en banc, and

Judge Choy has so recommended. The

full court has been advised of the en

banc suggestion, and no judge of the

court has requested a vote on it.

Appellee’s petition for rehearing is

DENIED and the suggestion for rehearing

en banc is REJECTED.

Treating appellant’s request for a

temporary restraining order as a petition

for rehearing, the request is DENIED.