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Kansas Federal Court Upholds In-Cell Book Restriction, But Continues Injunction

by Matthew T. Clarke

A Kansas federal court has upheld the Kansas Department of Corrections
policy limiting the number of books a prisoner may possess in his cell, but
continued to enforce an injunction against prison officials destroying a
Muslim prisoner's eight-volume English Arabic lexicon.

Alfred Neal, a Kansas state prisoner and a Shiite Muslim, filed suit under
42 U.S.C. § 1983, alleging prison officials interfered with the practice of
his religion when they destroyed some of his religious books. The court
issued a preliminary injunction ordering the defendants not to destroy an
additional eight volumes of an English-Arabic lexicon they had later
seized. Neal v. Lewis, 259 F.Supp.2d 1178 (D. Kansas 2003).

DOC guard Lewis found Neal in violation of DOC internal management policy
and procedures (IMPP) 12-120, which limits the number of books a prisoner
may possess in his cell to a dictionary, a thesaurus, the primary religious
text of the prisoner's religion, and twelve other books of the prisoner's
choosing. Lewis told Neal to choose which books he wanted to keep. Neal
refused to choose. The excess books were confiscated and Neal was given
several options to have them sent out of the prison or donated to the
prison's library or chaplain's library. Neal refused to choose. Instead,
Neal filed a grievance. He lost, then filed an appeal. He lost the appeal
and still refused to choose. The prison destroyed the books and Neal sued.
Neal was transferred to another prison where they confiscated his
eight-volume English-Arabic lexicon. Neal added the new seizure to the suit.

The defendants filed a motion for summary judgment which Neal failed to
answer on time. Thus, the motion was considered without response from Neal.

The court held that defendants were entitled to Eleventh Amendment immunity
in their official capacities. It also held that the restriction on the
number of books Neal can possess did not infringe on his First Amendment
right to practice his religion. The rules were adopted after the DOC was
cited by the State Fire Marshall's Office for allowing prisoners to keep an
abundance of combustible materials in their cells at the Lansing
Correctional Facility. Therefore, restricting the quantity of materials a
prisoner may possess does not violate the constitution as it facilitates
the legitimate penological goal of minimizing violence and securing safety
within the prison. Neal did not show that the rule prevented him from
practicing his religion.

Neal was not denied due process when the books were destroyed because he
refused multiple request by prison officials that he choose what to do with
them. Neal was not denied equal treatment because of his religion, even if
the prison library and chaplain's library contained no Shiite Muslim texts
because Neal failed to prove purposeful discrimination with a
discriminatory intent. Furthermore, Neal never showed that the rule
prevented him from exercising his religious beliefs. The motion for
summary judgment was granted and the previously granted Temporary
Restraining Order lifted insofar as it enjoined defendants from disposing
of Neal's excess books, but remains in force regarding enjoining them from
destroying Neal's eight volumes of English-Arabic Lexicon. See: Neal v.
Lewis, 325 F.Supp.2d 1231 (D. Kansas

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Related legal case

Neal v. Lewis

Aldred Neal, Plaintiff, vs. D.F. Lewis, et al., Defendants.

Case No. 01-3434-JAR


259 F. Supp. 2d 1178; 2003 U.S. Dist.

April 24, 2003, Decided

SUBSEQUENT HISTORY: Summary judgment granted by, Stay lifted by, in part Neal v. Lewis, 325 F. Supp. 2d 1231, 2004 U.S. Dist. (D. Kan., July 20, 2004)

DISPOSITION: [**1] Plaintiff's motion for temporary restraining order and/or preliminary injunction granted.

COUNSEL: Aldred Neal, Plaintiff, Pro se, Lansing, KS.

For D F Lewis, D Bratton, Michael Nelson, K Dutton, J Spilker, Don Thomas, William L Cummings, Defendants: Rebecca Ann Weeks, Kansas Attorney General, Topeka, KS, LEAD ATTORNEY.

JUDGES: Julie A. Robinson, United States District Judge.

OPINIONBY: Julie A. Robinson



This matter is before the Court on Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 34). The Defendants have filed responses (Docs. 39, 40 and 42). For the following reasons, the Court grants Plaintiff's motion.

I. Background

Plaintiff filed the complaint in this action in October of 2001, alleging § 1983 violations of his First Amendment right to freedom of religion and his Fourteenth Amendment right to due process. Plaintiff filed this motion for preliminary injunction on March 27, 2003. The issues raised in the motion for preliminary injunction are not the same issues that Plaintiff filed [**2] in his complaint, nor do they refer to the same incidents. Plaintiff's complaint involves incidents that occurred between 1999 and 2001, while he was housed at El Dorado Correctional Facility, El Dorado, Kansas. Plaintiff's complaint refers to 45 (or 39 as the number is disputed) books that prison staff removed from his cell in accordance with prison's limitation on the number of books that a prisoner may retain in his or her cell. Plaintiff alleges that those books, which he claims were religious books necessary to practice his religion as a Shiite Muslim, were destroyed.

Plaintiff's current motion for a preliminary injunction concerns events that occurred at the Hutchinson Correctional Facility, Hutchinson, Kansas. The allegations in Plaintiff's motion are also based on a denial of religious freedom when Hutchinson prison staff removed eight [*1180] books from his cell. Plaintiff alleges the books taken are necessary for his practice as a Shiite Muslim. Plaintiff's grandmother purchased these eight books for $ 216.00, and forwarded them to Plaintiff. The books consist of an eight volume set of English-Arabic Lexicon, which Plaintiff alleges are religious texts. Defendants dispute this characterization [**3] of the books.

Inmates in the correctional system in Kansas are allowed fifteen books inside their cell. These books can consist of one primary religious text, one dictionary, one thesaurus and the remaining twelve books are of the inmate's choosing. Additionally, these books cannot exceed $ 100.00 in value, cumulatively.

Plaintiff seeks a preliminary injunction on the basis that the policy violates his right to freely practice his religion.

II. Discussion

Defendants argue that this Court does not have jurisdiction over this matter because 1) the motion seeks relief on an issue not brought in the original complaint; and 2) that the original matter is pending before Judge VanBebber. First, this matter was transferred to this Court on March 27, 2003, the same day Plaintiff filed this motion for relief. Second, the Plaintiff proceeds in this action, and in this motion, pro se. Courts construe pro se pleadings liberally. n1 Plaintiff, lacking legal training, would not necessarily distinguish between the separate incidents and the need to file a separate action, even though some defendants are different due to the change in penal institutions. This confusion is certainly understandable [**4] considering both incidents involve the fifteen book inmate rule and what Plaintiff alleges as a continuing violation of his freedom of religion. It certainly appears Plaintiff's motion seeks relief of a continuing alleged violation that began in El Dorado and continued in Hutchinson. Considering the nexus between the incidents in the complaint and those in this motion, as well as Plaintiff's pro se status, this Court will consider this motion as properly filed in this action.

n1 See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001).

A. Injunctive Relief

Plaintiff's burden, necessary to obtain a preliminary injunction, is well settled. Plaintiff must show the following:

(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary [**5] injunction; and (4) the injunction is not adverse to the public interest. In addition, 'the right to relief must be clear and unequivocal' because 'a preliminary injunction is an extraordinary remedy.' n2

n2 Salt Lake Tribune Publ'g Co., LLC v. AT&T Corp., 320 F.3d 1081, 1099 (10th Cir. 2003) (citing Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001)).

A preliminary injunction is, without question, extraordinary relief. While Plaintiff bears the burden of establishing the above factors, his motion falls into an exception that relaxes his burden. When a constitutional question is raised for preliminary injunction, the Tenth Circuit employs a decreased burden within the four factors. If a Plaintiff can meet factors two, three and four, then factor one is met if Plaintiff raises "questions so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry." n3 Plaintiff's [*1181] question is constitutional in nature [**6] and the question regarding freedom of religion touches on issues serious and substantial enough to apply the relaxed burden. Thus, this Court will first look at the final three factors before evaluating Plaintiff's likelihood of success on the merits.

n3 Longstreth v. Maynard, 961 F.2d 895, 903 (10th Cir. 1992) (Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980)).

1. Irreparable Injury to the Movant if the Preliminary Injunction is Denied

Plaintiff asserts that he will suffer irreparable injury if this injunction is denied. The Tenth Circuit has stated that where constitutional rights are implicated, irreparable injury is shown because a monetary award after a trial would not adequately compensate the denial of a constitutional right. n4 This Court agrees and finds that Plaintiff can satisfy this factor because monetary relief would not compensate him for any period of denial of his religious freedom.

n4 Kikumura, 242 F.3d at 963 (citing 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995)).


2. Threatened Injury to the Movant Outweighs the Injury to the Other Party under the Preliminary Injunction

This injunction would prevent the prison from destroying the books removed from his cell. If the injunction were to allow Plaintiff to have an unlimited number of books of any value in his cell, the analysis under this factor might be different. The threatened injury to Plaintiff is a denial of any access to his books that he alleges he needs to practice his religion, as well as the potential destruction of those books. While the books could be compensated for, the denial of his rights cannot and thus the threatened injury is great. On the other hand, the threatened injury to the prison is minor. Under the injunction, the prison will merely be required to hold the books pending the outcome of this action and allow Plaintiff access to them as with any other book in the prison's library.

3. The Injunction Is Not Adverse to the Public Interest

The promotion of the constitutional right of freedom to exercise one's religious beliefs is one deeply rooted in this nation's history. The protection of this right is always in the public's best interest and this case, being [**8] inside a prison, is no exception. Plaintiff's injunction is not adverse to the public's interest.

4. Substantial Likelihood of Success on the Merits

As stated above, Plaintiff is subject to a relaxed burden here because he has met the other three factors. This Court need not decide whether Plaintiff has a substantial likelihood of success on the merits. The only question now before the Court is whether Plaintiff raises a question that is "so serious, substantial, difficult, and doubtful as to make [it] a fair ground for litigation and thus for more deliberate inquiry." n5 The Court finds he does. The books removed from his cell are alleged to be of a religious nature and necessary for his practice as a Shiite Muslim. While there is insufficient information before this Court to conclusively determine the merits of Plaintiff's claim, the constitutional question surrounding his First Amendment right is significant enough to require further inquiry. In the interim, Plaintiff has met the burden for preliminary injunctive relief.

n5 Longstreth v. Maynard, 961 F.2d 895, 903 (10th Cir. 1992) (Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980)).


[*1182] III. Nature of Preliminary Injunctive Relief

This preliminary injunction will be prospective only, save that the eight books of English-Arabic Lexicon, already in the possession of the prison, be retained. Plaintiff will not be allowed to exceed the 12 (total of 15) book maximum allowed in his cell; however, the religious books he has that exceed that number must be retained by the prison and made available to him by an exchange that would not cause the books in his cell to exceed prison regulations.

IT IS THEREFORE ORDERED BY THE COURT That Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 34) is granted as set out above.


Dated this 24th day of April, 2003, at Topeka, Kansas.

Julie A. Robinson

United States District Judge