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Muslim Prisoners Awarded $9,000 for Religious Suppression
A New York Federal District Court awarded three prisoners at Attica State Prison $3,000 each for the Commissioner of Corrections; Paul McGinnis, failure to promulgate regulations that allow the prisoners to practice the religion of Islam as members of the Nation of Islam founded by Elijah Muhammad. The action was filed in 1961 challenging New York's refusal to allow the prisoners to practice their Muslim Religion. McGinnis refused to allow practice of "Black Muslimism" because he thought it was a "dangerous, treasonable, anarchistic, and subversive" religion that "will result inevitably in riots, bloodshed, death, and destruction of State prison property on a scale never before experienced in the history of the State of New York."
However, on October 26, 1964, the United States Supreme Court held Islam is a religion that
prisoners are entitled to practice. See: Sostre v. McGinnis, 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed. 2d 96 (1964). It was not until May 6, 1966, that McGinnis finally promulgated rules allowing practice of Muslimism in New York prisons. This matter came for trial on the prisoners claim for monetary damages on May 2,1978. The Court held the prisoners could not be awarded damaged for the period prior to October 1964 or after May 1978, for their rights had either not been established yet or procedures were promulgated, even if they were defective rendering McGinnis entitled to a good faith immunity from damages defense. The Court held the prisoners were entitled to an award of $3,000 each for the denial of their right to practice Islam from October 1964 to May 1966. See: Bryant v. McGinnis, 463 F.Supp. 373 (N.D.N.Y. 1978).
However, on October 26, 1964, the United States Supreme Court held Islam is a religion that
prisoners are entitled to practice. See: Sostre v. McGinnis, 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed. 2d 96 (1964). It was not until May 6, 1966, that McGinnis finally promulgated rules allowing practice of Muslimism in New York prisons. This matter came for trial on the prisoners claim for monetary damages on May 2,1978. The Court held the prisoners could not be awarded damaged for the period prior to October 1964 or after May 1978, for their rights had either not been established yet or procedures were promulgated, even if they were defective rendering McGinnis entitled to a good faith immunity from damages defense. The Court held the prisoners were entitled to an award of $3,000 each for the denial of their right to practice Islam from October 1964 to May 1966. See: Bryant v. McGinnis, 463 F.Supp. 373 (N.D.N.Y. 1978).
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Related legal case
Bryant v. McGinnis
| Year | 1978 |
|---|---|
| Cite | 463 F.Supp. 373 (N.D.N.Y. 1978) |
| Level | District Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 9000 |
| Injunction Status | N/A |
BRYANT v. MCGINNIS, 463 F. Supp. 373 (W.D.N.Y. 11/22/1978)
[1] UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF NEW YORK
[2] 9395, 11569
[3] 463 F. Supp. 373, 1978
[4] November 22, 1978
[5] Willis X. BRYANT, Lionel X. Jones, and Arthur Johnson, Plaintiffs,
v.
Paul McGINNIS, Defendant
[6] Paul I. Birzon and Cheryl S. Fisher, Buffalo, N. Y., for plaintiffs.
[7] The opinion of the court was delivered by: CURTIN
[8] With the damages trial of this matter, held on May 2, 1978, the long and tortuous path of this litigation wends closer to a final resolution.
[9] PROCEDURAL BACKGROUND
[10] This action was begun nearly seventeen years ago on October 10, 1961, when William SaMarion filed with this court a hand-written, Pro se civil rights complaint under 42 U.S.C. § 1983 in which he alleged that he and other inmates of the Attica State Prison were being denied the right to embrace and practice the Religion of Islam as members of the Muslim sect led by the Honorable Elijah Muhammad.
[11] Shortly thereafter, the New York State Court of Appeals decided Brown v. McGinnis, 10 N.Y.2d 531, 225 N.Y.S.2d 497, 180 N.E.2d 791, on January 25, 1962. Brown v. McGinnis was a mandamus action in which the petitioner, a member of the Islamic faith, sought to be allowed to receive spiritual advice, ministration, and religious services from the local temple of Islam that was located in New York City and headed by Malcolm X. The Court of Appeals reversed the lower courts, which had denied the petitioner's application without a hearing, and remitted the action to the trial court. Subsequently, the proceeding was dismissed when the petitioner was released from custody.
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Opinion Footnotes
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[12] *fn1 Former § 610 of the Corrections Law provided: All persons who may have been or may hereafter be committed to or taken charge of by any of the institutions mentioned in this section, are hereby declared to be and entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference. This section shall be deemed to apply to every incorporated or unincorporated society for the reformation of its inmates, as well as houses of refuge, penitentiaries, protectories, reformatories or other correctional institutions, continuing to receive for its use, either public moneys, or a per capita sum from any municipality for the support of inmates. The rules and regulations established for the government of the institutions mentioned in this section shall recognize the right of the inmates to the free exercise of their religious belief, and to worship God according to the dictates of their consciences, in accordance with the provisions of the constitution; and shall allow religious services on Sunday and for private ministration to the inmates in such manner as may best carry into effect the spirit and intent of this section and be consistent with the proper discipline and management of the institution; and the inmates of such institutions shall be allowed such religious services and spiritual advice and spiritual ministration from some recognized clergyman of the denomination or church which said inmates may respectively prefer or to which they may have belonged prior to their being confined in such institutions; but if any of such inmates shall be minors under the age of sixteen years, then such services, advice and spiritual ministration shall be allowed in accordance with the methods and rites of the particular denomination or church which the parents or guardians of such minors may select; such services to be held and such advice and ministration to be given within the buildings or grounds where the inmates are required by law to be confined, in such manner and at such hours as will be in harmony, as aforesaid, with the discipline and the rules and regulations of the institution and secure to such inmates free exercise of their religious beliefs in accordance with the provisions of this section. In case of a violation of any of the provisions of this section any person feeling himself aggrieved thereby may institute proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section.
[13] *fn2 The Rules and Regulations promulgated on June 28, 1962 are as follows: RULES ON RELIGIOUS SERVICES IN CORRECTIONAL INSTITUTIONS The following rules pertaining to religious services and ministrations in correctional institutions under the jurisdiction of the New York State Department of Correction are hereby promulgated by the Commissioner of Correction as authorized by Section 112 of the Correction Law. These rules have been prepared in conformity with Section 610 of the Correction Law which provides that the Department of Correction shall recognize the right of the inmates to the free exercise of their religious belief and to worship God according to the dictates of their consciences in accordance with the provisions of the Constitution and consistent with the proper discipline and management of the institutions. 1. All resident and visiting chaplains shall possess the following qualifications: A. Each chaplain must be fully ordained by his ecclesiastical body and in good standing. He shall receive ecclesiastical endorsement from his religious authority, such as the approval by a Bishop of the Roman Catholic Church, or New York Board of Rabbis, or an authorized denominational agency, as the case may be. B. A candidate for the chaplaincy must have served a minimum of five years of successful parish ministry as pastor, priest, rabbi, administrator, assistant, or its equivalent in full time service. C. The academic education of a chaplain must include both of the following: The degree of A.B. or B.S., or its equivalent, from a four year accredited college or university, as approved by the Board of Regents of the State of New York, or the American Association of Colleges and Universities. The degree of B.D. or S.T.B., or the equivalent from a three year Seminary. 2. Each institution shall provide as liberal an opportunity as practicable for inmates to enjoy the ministrations of their own religious faiths in such manner and at such times and occasions as may be appropriate to their denominational requirements and the restrictions concomitant with incarceration and the proper discipline and management of the institution. 3. Since there are a great number of recognized religious denominations and it is not possible to provide a clergyman for each, both because of the facilities available and budgetary limitations, the chaplains of the three major faiths shall provide or arrange for worshipping and counselling at regular periods set aside for these purposes. 4. Clergymen of any approved denominational faith and in good standing thereof who possess the requisite qualifications, may be permitted to visit any inmate who was a member of his faith prior to his commitment with the consent of the Head of the institution and under the supervision of one of the resident chaplains. 5. Such clergyman may be permitted to give spiritual advice and ministrations if the inmate so desires, but such assistance shall be under the supervision of and arranged by one of the resident chaplains and in accordance with the rules and regulations pertaining to religious activities. 6. A guest clergyman, who has received ecclesiastical endorsement from his religious authority or recognized denominational agency and who possesses the requisite qualifications herein, may be permitted to officiate at religious services for a duly recognized denominational group and may render spiritual advice and ministrations to members of such religious faith in accordance with regulations pertaining to religious activities with the consent of the institutional Head but such services shall be performed under the supervision of one of the resident chaplains. 7. Any recognized religious body upon petition to and approval by the institutional Head, may be permitted to hold and officiate at special denominational services in any correctional institution, under the supervision of one of the resident chaplains. 8. Any person professing to be clergyman, who is not fully ordained by his ecclesiastical body and in good standing thereof, shall not be permitted to officiate at any denominational service or to provide inmates with spiritual advice or ministrations. 9. In all instances where permission is granted by the Head of the institution to visiting auxiliaries, such ministry shall be accomplished under the supervision of one of the resident chaplains in harmony with the regulations relating to religious activities, which will include a careful scrutiny of the credentials of such auxiliary to conduct religious services and his personal qualifications. The foregoing rules are to take effect immediately. /s/ Paul D. McGinnis /s/ Paul D. McGinnis Commissioner of Correction June 28, 1962
[14] *fn3 This "Statement of Policy", which was never accepted by the Secretary of State as a rule or regulation, reads: In conformity with the mandate handed down by the Court of Appeals in the case of Brown v. McGinnis, 10 N.Y.2d (531, 225 N.Y.S.2d 497) and the enlargement and clarification of the rules and regulations relating to religious services in correctional institutions prepared by the Commissioner of Correction of the State of New York pursuant to said directive contained in said decision hereinbefore referred to, said rules and regulations were promulgated under date of June 28, 1962 and filed in the office of the Secretary of State on June 29, 1962. The Department of Correction through the Commissioner of Correction makes the following statement of policy. 1. That any and all State prisoners confined in State prison institutions in the State of New York under the jurisdiction and control of the Department of Correction of the State of New York shall have the right to religious beliefs and to religious worship according to the dictates of their conscience and in conformity with the discipline of the particular religion to which they claim adherence subject only to the necessary security and disciplinary measures required to be exercised in New York State prison institutions. While it is obvious that no one individual or individuals may set forth all various marks by which a religion may be recognized as such, the Commissioner of Correction recognizes that at least four basic elements can be discovered in any particular religious sect or group. 1. Study as a means to improve one's knowledge of a Supreme Being and of the particular religious sect involved; 2. Profession of that religion as a way of personal salvation; 3. Practice consisting of various sets of prayers and religious observances which an adherent should perform with regularity; and 4. Public or congregational religious worship by which the members of a particular religious sect come together and worship in a public manner. The Commissioner also recognizes that there are varying religions in the world and no attempt will be made herein to name each of the various religions and no attempt will be made herein to define what sort of beliefs or practices or combination of both may be regarded or classified as a religion. The Commissioner reiterates and expresses again his understanding that under the First Amendment and the Fourteenth Amendment of the Constitution of the United States of America and pursuant to Article one Section 3 of the Constitution of the State of New York and Section 610 of the Correction Law of the State of New York, prisoners confined in the various State prisons under the jurisdiction of the Department of Correction of the State of New York are entitled to the free exercise of their religious beliefs and to worship God in accordance with the dictates of their consciences consistent always with proper discipline and management of the said State institutions. The Commissioner recognizes that the right to practice religion does not mean that acts inimical to the peace, good order and morals of Society, as determined by the Legislature of the State of New York, the Congress of the United States and the State courts of the State of New York and the federal courts of the United States of America in such areas as these various named governmental agencies may have jurisdiction, may be permitted in a State penal institution on the ground that such practices are sought to be performed in the name of religion or religious worship. The Commissioner makes these rules and regulations in accordance with his understanding of the decisions of the United States Supreme Court and the State of New York, holding in effect that freedom of religion is absolute only as long as public morals, public health and public safety are observed. The Commissioner understands that freedom of religion embraces the concept of freedom to believe and freedom to act, the first of which is absolute but the second of which remains subject to regulation for the protection of Society and that the government has the right and obligation to restrict any religious practice which either contravenes existing law or is detrimental to the common good of Society. The Commissioner recognizes that he has the duty and obligation to maintain law and order and proper discipline in the various prisons of the State of New York and that in accordance with such duty he must exclude from the prison system any practices performed in the name of religion upon a finding by him that such religious practices create a clear and present danger to a particular prison or to the prison system. In this respect the Commissioner accepts and promulgates as a condition to support a finding of clear and present danger that the particular religious practice or religious doctrine would create an immediate serious danger of violence or that the past conduct of said religious practices or advocacy of said religious doctrines would give the Commissioner reason to believe that immediate serious violence could and would arise from advocacy within the prison of said religious doctrines or the carrying out thereof as religious practices with the State prison institutions. The State of New York pursuant to law places upon its payroll and retains at salaries and State expense chaplains in State prison institutions as follows: A Protestant chaplain is retained and paid a salary by the State of New York to minister religiously to all the various and varying Protestant faiths. A Catholic chaplain is placed upon the payroll and paid a salary in each prison institution to minister to and give religious solace to the Roman Catholic inmates and the Greek Orthodox inmates. A Jewish rabbi is retained and paid a salary by the State of New York to offer and bring religious solace and ministration to the Jewish inmates. The Chaplains who are retained and salaried by the State of New York to serve in the various State prison institutions shall have the following qualifications: A. Each chaplain must be fully ordained by his ecclesiastical body and in good standing. He shall receive ecclesiastical endorsement from his religious authority, such as the approval by a Bishop of the Roman Catholic Church, or New York Board of Rabbis, or an authorized denominational agency, as the case may be. B. A candidate for the chaplaincy must have served a minimum of five years of successful Parish ministry as pastor, priest, rabbi, administrator, assistant, or its equivalent in full time service. C. The academic education of a chaplain must include both of the following: The degree of A.B. or B.S., or its equivalent, from a four year accredited college or university, as approved by the Board of Regents of the State of New York, or the American Association of Colleges and Universities. The degree of B.D. or S.T.B., or the equivalent from a three year Seminary. In addition to the regularly paid chaplains, the Commissioner will permit a minister, priest or rabbi or other ordained cleric or religious scholar to visit a prisoner in a State prison institution when he is qualified to do so pursuant to the provisions of the Correction Law of the State of New York. The Commissioner of Correction will also permit correspondence with prisoners by a duly ordained or enrobed priest or minister of religion or Jewish rabbi or religious scholar of religions other than those comprising the Protestant, Catholic Greek Orthodox and Jewish religions when these particular individuals are qualified to so correspond with prisoners pursuant to the Correction Law of the State of New York. As to visiting clergymen and corresponding clergymen the qualifications shall be that each shall be certified as an authentic member of his particular sect or assigned by his particular superior in whatever diocese he may be serving. 2. Each institution shall provide as liberal an opportunity as practicable for inmates to enjoy the ministrations of their own religious faiths in such manner and at such times and occasions as may be appropriate to their denominational requirements and the restrictions concomitant with incarceration and the proper discipline and management of the institution. 3. Since there are a great number of recognized religious denominations and it is not possible to provide a clergyman for each, both because of the facilities available and budgetary limitations, the chaplains of the three major faiths shall provide or arrange for worshipping and counselling at regular periods set aside for these purposes. 4. Clergymen of any approved denominational faith and in good standing thereof who possess the requisite qualifications, may be permitted to visit any inmate who was a member of his faith prior to his commitment with the consent of the Head of the institution and under the supervision of one of the resident chaplains. 5. Such clergyman may be permitted to give spiritual advice and ministrations if the inmate so desires, but such assistance shall be under the supervision of and arranged by one of the resident chaplains and in accordance with the rules and regulations pertaining to religious activities. 6. A guest clergyman, who has received ecclesiastical endorsement from his religious authority or recognized denominational agency and who possesses the requisite qualifications herein, may be permitted to officiate at religious services for a duly recognized denomination group and may render spiritual advice and ministrations to members of such religious faith in accordance with regulations pertaining to religious activities with the consent of the institutional Head but such services shall be performed under the supervision of one of the resident chaplains. 7. Any recognized religious body upon petition to and approval by the institutional Head, may be permitted to hold and officiate at special denominational services in any correctional institution, under the supervision of one of the resident chaplains. 8. Any person professing to be a clergyman, who is not fully ordained by his ecclesiastical body and in good standing thereof, shall not be permitted to officiate at any denominational service or to provide inmates with spiritual advice or ministrations. 9. In all instances where permission is granted by the head of the institution to visiting auxiliaries, such ministry shall be accomplished under the supervision of one of the resident chaplains in harmony with the regulations relating to religious activities, which will include a careful scrutiny of the credentials of such auxiliary to conduct religious services and his personal qualifications. It is recognized that there are other religions than the various Christian religions and the Hebrew religion among which is the religion of Islam as promulgated by Mohammed of Arabia in or about the year 622 A.D. The said religion of Islam comprises the following sects or groups within said religion; the Sunni group, Ahmadiyya group and the Shiah group, which in the United States of America constitute the only groups of the religion of Islam as prepared by Mohammed of Arabia. The Commissioner of Corrections shall make rules and regulations applicable to each prison for the orderly practice of the various religions and where he has made a determination that a particular claimed religion by past conduct or by advocacy of dangerous propositions which would hazard the peace and security of State penal institutions, he shall by edict circumscribe the practice of said religion and the advocacy of said religious doctrine to such an extent as to prevent the destruction of prison discipline and to continue the peace and security of the said penal institution.
[15] *fn4 It should also be noted that Commissioner McGinnis' affidavit totally ignores the fact that an extensive trial had already been held in this court in October 1962.
[16] *fn5 These regulations were dated May 2, 1966, and provided: (1) The following rules and regulations are promulgated by the Commissioner of Correction, together with the restrictions promulgated in connection therewith: (2) The wardens of the various prisons within the jurisdiction of the Department of Correction of the State of New York are directed to hereby and forthwith provide opportunity and place for religious services for the persons professing the religion of Black Muslimism. (3) The said wardens shall admit to the prison for the purpose of conducting services a Black Muslim minister or clergyman having the authorization to so act by the ecclesiastical head of their religious organization being one Elijah Muhammad of Chicago, Illinois, U. S. A. The said Black Muslims shall have the right to purchase a religious book known as the "Koran" and said Black Muslims shall have the right to receive religious literature. (4) The religion of the Black Muslims will be restricted in the following manner for one year: (5) No prison inmate may attend Muslim services who is not presently affiliated with the religious group known as Black Muslims. (6) The Warden of Attica Prison and all of the wardens or superintendents of the various prisons within the jurisdiction of the Department of Correction of the State of New York are directed to hereby and forthwith provide opportunity and place for religious services for the persons Professing the religion of Black Muslimism. (7) The said Warden of Attica Prison and all of the wardens or superintendents of the various prisons within the jurisdiction of the Department of Correction of the State of New York shall admit to the prison for the purpose of conducting services a Black Muslim minister or clergyman having the authorization to so act by the ecclesiastical head of their religious organization being one Elijah Muhammad of Chicago, Illinois. (8) The said Black Muslims shall have the right to purchase a religious book of the religion of Islam known as the "Koran" and said Black Muslims shall have the right to receive religious literature. (9) Muslim services will be conducted for those inmates who prefer to be members of the Black Muslim religion. (10) No special diet for religious observance shall be offered to the Black Muslims since no such diet is offered to Protestants, Catholics or Jews, but said Black Muslims shall have the right to abstain from eating any food forbidden by their religious precepts and which is recognized as part of the discipline of their religion, but said Muslims may substitute such other food available at the particular meal. (11) Religious services shall only be permitted on a day and place within the institution designated by the warden, which is convenient to the operation and administration of the prison and consistent with the safety and security of the institution. (12) The newspaper "Muhammad Speaks" will be excluded, as well as any other newspapers or periodicals which are recognized by the warden as being inflammatory and dangerous to the safety and security of the institution. (13) The said ministers of the said Black Muslims will not be permitted to preach criminal anarchy, as defined by § 160 of the Penal Law of the State of New York, or treason against the United States of America, or subversion of the United States of America, and such minister shall be so informed by the warden upon his reception at the prison as a minister. Violation of this regulation will permit the warden to stop the religious service and shall terminate the said service. The said service shall be monitored by institutional personnel so designated by the warden, to insure the safety and security of the institution. (14) No demonstration of an unusual or inflammatory nature such as posturizing or such conduct as may arouse the passions of other inmates shall be permitted in the general population by the Black Muslims. (15) Literature prepared by the Black Muslims which is inflammatory, anarchistic, treasonable or subversive shall be considered as contraband and subject to seizure and confiscation by the prison officials. (16) Upon a showing by the Black Muslims and their ministers that they can conform to prison discipline, and that they can conduct services in a proper spiritual manner, without endangering the safety and security of the institution, these rules are subject to change at the discretion of the Commissioner of Correction. (17) Since certain Muslim ministers have been known to have criminal records including the leader thereof, Elijah Muhammad, as an additional precautionary measure to insure the safety and security of the prison, each Muslim minister applicant seeking admission as such to a penal institution under the jurisdiction of the Department of Correction shall submit to fingerprinting by the institutional authorities. A Black Muslim minister who is known to have a criminal record shall be denied admission to any institution in the Department of Correction. (18) No Black Muslim inmate shall conduct services in the place of a Muslim minister. (19) An appropriate meeting place of worship shall be designated in each prison for holding religious services, and no services may be held outside of such designated place. (20) No special insignia, regalia or method of dress, or presentation of the person shall be permitted to the Black Muslims. (21) The warden may limit the number of inmates who shall attend religious services at one time, as may be reasonably necessary and practically accommodated so as to insure the safety and security of the prison. All of which is respectfully submitted. PAUL D. McGINNIS Commissioner of Correction State of New York May 2, 1966
[17] *fn6 These Rules and Regulations were dated November 16, 1967, and provided: Pursuant to the decision in Sostre v. McGinnis, 334 F.2d 906, as implemented by the decision in SaMarion et al. v. McGinnis, 253 F. Supp. 738, and pursuant to the decision of the New York State Supreme Court, Special Term, dated October 2, 1967, the following rules and regulations are promulgated, which rules and regulations relate to the practice of Muslimism in Attica State Prison and all other penal institutions under the jurisdiction of the Department of Correction of the State of New York: 1. The Muslims shall have each and every religious right and privilege extended to Catholics, Protestants and Jews in the exercise of their respective religions. 2. Muslims may have a diet which does not contain prohibitive food substances but this is subject to modification by reason of reasonable regulations relating to the food problem of the entire prison population. The Muslims may substitute any food which is on the prison menu in place of a prohibitive food. 3. Prison inmates who desire to learn about the religious practice of the Muslim sect may attend religious services with the Muslims at the time and place to be appointed by the Warden, subject only to reasonable restrictions as to space and prison security. 4. Muslim ministers may attend at the prison for the purpose of preaching to the Muslims in congregational services and for the purpose of individual religious administration to the Muslims with the same rights and privileges extended to other ministers, priests or rabbis except that no form of compensation will be offered or paid to the Muslim ministers for such attendance at the prison. 5. Fingerprinting of each Muslim minister attending at the prison shall be required and will be also required of all clergymen visiting the prison, whether regularly on the payroll of the State of New York or attending as visiting clergymen. 6. Muslims may subscribe to any publication to which they may wish to subscribe but such publication shall be subject to censorship by the Warden, including the exclusion of said publication if in the reasonable opinion of the Warden the publication represents a threat to the security of the penal institution. 7. The Muslim ministers may wear such robe or religious raiment as they may desire and the Muslim inmates may wear such religious insignia which, in the reasonable opinion of the Warden, will not incite to prison disturbance in the inmate population.
[18] *fn7 These revised Rules provide: 1. The Muslims shall have each and every religious right and privilege extended to Catholics, Protestants, and Jews in the exercise of their respective religions. Ministers, priests, or rabbis of all these stated religious faiths may attend at the prison for the purpose of preaching to the inmates in congregational services and for the purpose of individual religious ministration to the inmates. 2. Fingerprinting of all clergymen visiting the prison, whether regularly on the payroll of the State of New York or attending as visiting clergymen shall be required. 3. Clergymen may wear such robe or religious raiment as they may desire and inmates may wear such religious insignia which, in the reasonable opinion of the Warden, will not incite to prison disturbance in the inmate population. 4. Prison inmates, who desire to learn about the religious practice of any sect, including the Muslim religion, may attend religious services at the time and place to be appointed by the Warden, subject only to reasonable restrictions as to space and prison security. 5. Muslims shall be provided whenever possible with meals that are wholly free of pork and pork products, and when that is not practicable then there shall be available at each meal some food free of those substances. 6. Inmates may subscribe to any publication to which they may wish to subscribe, including "Muhammad Speaks", but such publication shall be subject to censorship by the Warden, including the exclusion of said publication if in the reasonable opinion of the Warden the publication represents a threat to the security of the penal institution.
[19] *fn8 On August 4, 1966, Judge Henderson granted the motion of plaintiff Lionel X. Jones to amend his complaint to add a claim for money damages and the Pro se amended complaint was filed on August 5, 1966. The amended complaint for money damages of plaintiff Willis X. Bryant, Jr. was filed on September 20, 1966, pursuant to Judge Henderson's order of that same date. Judge Henderson granted plaintiff Arthur Johnson's request to amend his complaint to add a claim for money damages on September 28, 1966. A handwritten, Pro se complaint was received by the Clerk but was apparently never filed.
[1] UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF NEW YORK
[2] 9395, 11569
[3] 463 F. Supp. 373, 1978
[4] November 22, 1978
[5] Willis X. BRYANT, Lionel X. Jones, and Arthur Johnson, Plaintiffs,
v.
Paul McGINNIS, Defendant
[6] Paul I. Birzon and Cheryl S. Fisher, Buffalo, N. Y., for plaintiffs.
[7] The opinion of the court was delivered by: CURTIN
[8] With the damages trial of this matter, held on May 2, 1978, the long and tortuous path of this litigation wends closer to a final resolution.
[9] PROCEDURAL BACKGROUND
[10] This action was begun nearly seventeen years ago on October 10, 1961, when William SaMarion filed with this court a hand-written, Pro se civil rights complaint under 42 U.S.C. § 1983 in which he alleged that he and other inmates of the Attica State Prison were being denied the right to embrace and practice the Religion of Islam as members of the Muslim sect led by the Honorable Elijah Muhammad.
[11] Shortly thereafter, the New York State Court of Appeals decided Brown v. McGinnis, 10 N.Y.2d 531, 225 N.Y.S.2d 497, 180 N.E.2d 791, on January 25, 1962. Brown v. McGinnis was a mandamus action in which the petitioner, a member of the Islamic faith, sought to be allowed to receive spiritual advice, ministration, and religious services from the local temple of Islam that was located in New York City and headed by Malcolm X. The Court of Appeals reversed the lower courts, which had denied the petitioner's application without a hearing, and remitted the action to the trial court. Subsequently, the proceeding was dismissed when the petitioner was released from custody.
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Opinion Footnotes
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[12] *fn1 Former § 610 of the Corrections Law provided: All persons who may have been or may hereafter be committed to or taken charge of by any of the institutions mentioned in this section, are hereby declared to be and entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference. This section shall be deemed to apply to every incorporated or unincorporated society for the reformation of its inmates, as well as houses of refuge, penitentiaries, protectories, reformatories or other correctional institutions, continuing to receive for its use, either public moneys, or a per capita sum from any municipality for the support of inmates. The rules and regulations established for the government of the institutions mentioned in this section shall recognize the right of the inmates to the free exercise of their religious belief, and to worship God according to the dictates of their consciences, in accordance with the provisions of the constitution; and shall allow religious services on Sunday and for private ministration to the inmates in such manner as may best carry into effect the spirit and intent of this section and be consistent with the proper discipline and management of the institution; and the inmates of such institutions shall be allowed such religious services and spiritual advice and spiritual ministration from some recognized clergyman of the denomination or church which said inmates may respectively prefer or to which they may have belonged prior to their being confined in such institutions; but if any of such inmates shall be minors under the age of sixteen years, then such services, advice and spiritual ministration shall be allowed in accordance with the methods and rites of the particular denomination or church which the parents or guardians of such minors may select; such services to be held and such advice and ministration to be given within the buildings or grounds where the inmates are required by law to be confined, in such manner and at such hours as will be in harmony, as aforesaid, with the discipline and the rules and regulations of the institution and secure to such inmates free exercise of their religious beliefs in accordance with the provisions of this section. In case of a violation of any of the provisions of this section any person feeling himself aggrieved thereby may institute proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section.
[13] *fn2 The Rules and Regulations promulgated on June 28, 1962 are as follows: RULES ON RELIGIOUS SERVICES IN CORRECTIONAL INSTITUTIONS The following rules pertaining to religious services and ministrations in correctional institutions under the jurisdiction of the New York State Department of Correction are hereby promulgated by the Commissioner of Correction as authorized by Section 112 of the Correction Law. These rules have been prepared in conformity with Section 610 of the Correction Law which provides that the Department of Correction shall recognize the right of the inmates to the free exercise of their religious belief and to worship God according to the dictates of their consciences in accordance with the provisions of the Constitution and consistent with the proper discipline and management of the institutions. 1. All resident and visiting chaplains shall possess the following qualifications: A. Each chaplain must be fully ordained by his ecclesiastical body and in good standing. He shall receive ecclesiastical endorsement from his religious authority, such as the approval by a Bishop of the Roman Catholic Church, or New York Board of Rabbis, or an authorized denominational agency, as the case may be. B. A candidate for the chaplaincy must have served a minimum of five years of successful parish ministry as pastor, priest, rabbi, administrator, assistant, or its equivalent in full time service. C. The academic education of a chaplain must include both of the following: The degree of A.B. or B.S., or its equivalent, from a four year accredited college or university, as approved by the Board of Regents of the State of New York, or the American Association of Colleges and Universities. The degree of B.D. or S.T.B., or the equivalent from a three year Seminary. 2. Each institution shall provide as liberal an opportunity as practicable for inmates to enjoy the ministrations of their own religious faiths in such manner and at such times and occasions as may be appropriate to their denominational requirements and the restrictions concomitant with incarceration and the proper discipline and management of the institution. 3. Since there are a great number of recognized religious denominations and it is not possible to provide a clergyman for each, both because of the facilities available and budgetary limitations, the chaplains of the three major faiths shall provide or arrange for worshipping and counselling at regular periods set aside for these purposes. 4. Clergymen of any approved denominational faith and in good standing thereof who possess the requisite qualifications, may be permitted to visit any inmate who was a member of his faith prior to his commitment with the consent of the Head of the institution and under the supervision of one of the resident chaplains. 5. Such clergyman may be permitted to give spiritual advice and ministrations if the inmate so desires, but such assistance shall be under the supervision of and arranged by one of the resident chaplains and in accordance with the rules and regulations pertaining to religious activities. 6. A guest clergyman, who has received ecclesiastical endorsement from his religious authority or recognized denominational agency and who possesses the requisite qualifications herein, may be permitted to officiate at religious services for a duly recognized denominational group and may render spiritual advice and ministrations to members of such religious faith in accordance with regulations pertaining to religious activities with the consent of the institutional Head but such services shall be performed under the supervision of one of the resident chaplains. 7. Any recognized religious body upon petition to and approval by the institutional Head, may be permitted to hold and officiate at special denominational services in any correctional institution, under the supervision of one of the resident chaplains. 8. Any person professing to be clergyman, who is not fully ordained by his ecclesiastical body and in good standing thereof, shall not be permitted to officiate at any denominational service or to provide inmates with spiritual advice or ministrations. 9. In all instances where permission is granted by the Head of the institution to visiting auxiliaries, such ministry shall be accomplished under the supervision of one of the resident chaplains in harmony with the regulations relating to religious activities, which will include a careful scrutiny of the credentials of such auxiliary to conduct religious services and his personal qualifications. The foregoing rules are to take effect immediately. /s/ Paul D. McGinnis /s/ Paul D. McGinnis Commissioner of Correction June 28, 1962
[14] *fn3 This "Statement of Policy", which was never accepted by the Secretary of State as a rule or regulation, reads: In conformity with the mandate handed down by the Court of Appeals in the case of Brown v. McGinnis, 10 N.Y.2d (531, 225 N.Y.S.2d 497) and the enlargement and clarification of the rules and regulations relating to religious services in correctional institutions prepared by the Commissioner of Correction of the State of New York pursuant to said directive contained in said decision hereinbefore referred to, said rules and regulations were promulgated under date of June 28, 1962 and filed in the office of the Secretary of State on June 29, 1962. The Department of Correction through the Commissioner of Correction makes the following statement of policy. 1. That any and all State prisoners confined in State prison institutions in the State of New York under the jurisdiction and control of the Department of Correction of the State of New York shall have the right to religious beliefs and to religious worship according to the dictates of their conscience and in conformity with the discipline of the particular religion to which they claim adherence subject only to the necessary security and disciplinary measures required to be exercised in New York State prison institutions. While it is obvious that no one individual or individuals may set forth all various marks by which a religion may be recognized as such, the Commissioner of Correction recognizes that at least four basic elements can be discovered in any particular religious sect or group. 1. Study as a means to improve one's knowledge of a Supreme Being and of the particular religious sect involved; 2. Profession of that religion as a way of personal salvation; 3. Practice consisting of various sets of prayers and religious observances which an adherent should perform with regularity; and 4. Public or congregational religious worship by which the members of a particular religious sect come together and worship in a public manner. The Commissioner also recognizes that there are varying religions in the world and no attempt will be made herein to name each of the various religions and no attempt will be made herein to define what sort of beliefs or practices or combination of both may be regarded or classified as a religion. The Commissioner reiterates and expresses again his understanding that under the First Amendment and the Fourteenth Amendment of the Constitution of the United States of America and pursuant to Article one Section 3 of the Constitution of the State of New York and Section 610 of the Correction Law of the State of New York, prisoners confined in the various State prisons under the jurisdiction of the Department of Correction of the State of New York are entitled to the free exercise of their religious beliefs and to worship God in accordance with the dictates of their consciences consistent always with proper discipline and management of the said State institutions. The Commissioner recognizes that the right to practice religion does not mean that acts inimical to the peace, good order and morals of Society, as determined by the Legislature of the State of New York, the Congress of the United States and the State courts of the State of New York and the federal courts of the United States of America in such areas as these various named governmental agencies may have jurisdiction, may be permitted in a State penal institution on the ground that such practices are sought to be performed in the name of religion or religious worship. The Commissioner makes these rules and regulations in accordance with his understanding of the decisions of the United States Supreme Court and the State of New York, holding in effect that freedom of religion is absolute only as long as public morals, public health and public safety are observed. The Commissioner understands that freedom of religion embraces the concept of freedom to believe and freedom to act, the first of which is absolute but the second of which remains subject to regulation for the protection of Society and that the government has the right and obligation to restrict any religious practice which either contravenes existing law or is detrimental to the common good of Society. The Commissioner recognizes that he has the duty and obligation to maintain law and order and proper discipline in the various prisons of the State of New York and that in accordance with such duty he must exclude from the prison system any practices performed in the name of religion upon a finding by him that such religious practices create a clear and present danger to a particular prison or to the prison system. In this respect the Commissioner accepts and promulgates as a condition to support a finding of clear and present danger that the particular religious practice or religious doctrine would create an immediate serious danger of violence or that the past conduct of said religious practices or advocacy of said religious doctrines would give the Commissioner reason to believe that immediate serious violence could and would arise from advocacy within the prison of said religious doctrines or the carrying out thereof as religious practices with the State prison institutions. The State of New York pursuant to law places upon its payroll and retains at salaries and State expense chaplains in State prison institutions as follows: A Protestant chaplain is retained and paid a salary by the State of New York to minister religiously to all the various and varying Protestant faiths. A Catholic chaplain is placed upon the payroll and paid a salary in each prison institution to minister to and give religious solace to the Roman Catholic inmates and the Greek Orthodox inmates. A Jewish rabbi is retained and paid a salary by the State of New York to offer and bring religious solace and ministration to the Jewish inmates. The Chaplains who are retained and salaried by the State of New York to serve in the various State prison institutions shall have the following qualifications: A. Each chaplain must be fully ordained by his ecclesiastical body and in good standing. He shall receive ecclesiastical endorsement from his religious authority, such as the approval by a Bishop of the Roman Catholic Church, or New York Board of Rabbis, or an authorized denominational agency, as the case may be. B. A candidate for the chaplaincy must have served a minimum of five years of successful Parish ministry as pastor, priest, rabbi, administrator, assistant, or its equivalent in full time service. C. The academic education of a chaplain must include both of the following: The degree of A.B. or B.S., or its equivalent, from a four year accredited college or university, as approved by the Board of Regents of the State of New York, or the American Association of Colleges and Universities. The degree of B.D. or S.T.B., or the equivalent from a three year Seminary. In addition to the regularly paid chaplains, the Commissioner will permit a minister, priest or rabbi or other ordained cleric or religious scholar to visit a prisoner in a State prison institution when he is qualified to do so pursuant to the provisions of the Correction Law of the State of New York. The Commissioner of Correction will also permit correspondence with prisoners by a duly ordained or enrobed priest or minister of religion or Jewish rabbi or religious scholar of religions other than those comprising the Protestant, Catholic Greek Orthodox and Jewish religions when these particular individuals are qualified to so correspond with prisoners pursuant to the Correction Law of the State of New York. As to visiting clergymen and corresponding clergymen the qualifications shall be that each shall be certified as an authentic member of his particular sect or assigned by his particular superior in whatever diocese he may be serving. 2. Each institution shall provide as liberal an opportunity as practicable for inmates to enjoy the ministrations of their own religious faiths in such manner and at such times and occasions as may be appropriate to their denominational requirements and the restrictions concomitant with incarceration and the proper discipline and management of the institution. 3. Since there are a great number of recognized religious denominations and it is not possible to provide a clergyman for each, both because of the facilities available and budgetary limitations, the chaplains of the three major faiths shall provide or arrange for worshipping and counselling at regular periods set aside for these purposes. 4. Clergymen of any approved denominational faith and in good standing thereof who possess the requisite qualifications, may be permitted to visit any inmate who was a member of his faith prior to his commitment with the consent of the Head of the institution and under the supervision of one of the resident chaplains. 5. Such clergyman may be permitted to give spiritual advice and ministrations if the inmate so desires, but such assistance shall be under the supervision of and arranged by one of the resident chaplains and in accordance with the rules and regulations pertaining to religious activities. 6. A guest clergyman, who has received ecclesiastical endorsement from his religious authority or recognized denominational agency and who possesses the requisite qualifications herein, may be permitted to officiate at religious services for a duly recognized denomination group and may render spiritual advice and ministrations to members of such religious faith in accordance with regulations pertaining to religious activities with the consent of the institutional Head but such services shall be performed under the supervision of one of the resident chaplains. 7. Any recognized religious body upon petition to and approval by the institutional Head, may be permitted to hold and officiate at special denominational services in any correctional institution, under the supervision of one of the resident chaplains. 8. Any person professing to be a clergyman, who is not fully ordained by his ecclesiastical body and in good standing thereof, shall not be permitted to officiate at any denominational service or to provide inmates with spiritual advice or ministrations. 9. In all instances where permission is granted by the head of the institution to visiting auxiliaries, such ministry shall be accomplished under the supervision of one of the resident chaplains in harmony with the regulations relating to religious activities, which will include a careful scrutiny of the credentials of such auxiliary to conduct religious services and his personal qualifications. It is recognized that there are other religions than the various Christian religions and the Hebrew religion among which is the religion of Islam as promulgated by Mohammed of Arabia in or about the year 622 A.D. The said religion of Islam comprises the following sects or groups within said religion; the Sunni group, Ahmadiyya group and the Shiah group, which in the United States of America constitute the only groups of the religion of Islam as prepared by Mohammed of Arabia. The Commissioner of Corrections shall make rules and regulations applicable to each prison for the orderly practice of the various religions and where he has made a determination that a particular claimed religion by past conduct or by advocacy of dangerous propositions which would hazard the peace and security of State penal institutions, he shall by edict circumscribe the practice of said religion and the advocacy of said religious doctrine to such an extent as to prevent the destruction of prison discipline and to continue the peace and security of the said penal institution.
[15] *fn4 It should also be noted that Commissioner McGinnis' affidavit totally ignores the fact that an extensive trial had already been held in this court in October 1962.
[16] *fn5 These regulations were dated May 2, 1966, and provided: (1) The following rules and regulations are promulgated by the Commissioner of Correction, together with the restrictions promulgated in connection therewith: (2) The wardens of the various prisons within the jurisdiction of the Department of Correction of the State of New York are directed to hereby and forthwith provide opportunity and place for religious services for the persons professing the religion of Black Muslimism. (3) The said wardens shall admit to the prison for the purpose of conducting services a Black Muslim minister or clergyman having the authorization to so act by the ecclesiastical head of their religious organization being one Elijah Muhammad of Chicago, Illinois, U. S. A. The said Black Muslims shall have the right to purchase a religious book known as the "Koran" and said Black Muslims shall have the right to receive religious literature. (4) The religion of the Black Muslims will be restricted in the following manner for one year: (5) No prison inmate may attend Muslim services who is not presently affiliated with the religious group known as Black Muslims. (6) The Warden of Attica Prison and all of the wardens or superintendents of the various prisons within the jurisdiction of the Department of Correction of the State of New York are directed to hereby and forthwith provide opportunity and place for religious services for the persons Professing the religion of Black Muslimism. (7) The said Warden of Attica Prison and all of the wardens or superintendents of the various prisons within the jurisdiction of the Department of Correction of the State of New York shall admit to the prison for the purpose of conducting services a Black Muslim minister or clergyman having the authorization to so act by the ecclesiastical head of their religious organization being one Elijah Muhammad of Chicago, Illinois. (8) The said Black Muslims shall have the right to purchase a religious book of the religion of Islam known as the "Koran" and said Black Muslims shall have the right to receive religious literature. (9) Muslim services will be conducted for those inmates who prefer to be members of the Black Muslim religion. (10) No special diet for religious observance shall be offered to the Black Muslims since no such diet is offered to Protestants, Catholics or Jews, but said Black Muslims shall have the right to abstain from eating any food forbidden by their religious precepts and which is recognized as part of the discipline of their religion, but said Muslims may substitute such other food available at the particular meal. (11) Religious services shall only be permitted on a day and place within the institution designated by the warden, which is convenient to the operation and administration of the prison and consistent with the safety and security of the institution. (12) The newspaper "Muhammad Speaks" will be excluded, as well as any other newspapers or periodicals which are recognized by the warden as being inflammatory and dangerous to the safety and security of the institution. (13) The said ministers of the said Black Muslims will not be permitted to preach criminal anarchy, as defined by § 160 of the Penal Law of the State of New York, or treason against the United States of America, or subversion of the United States of America, and such minister shall be so informed by the warden upon his reception at the prison as a minister. Violation of this regulation will permit the warden to stop the religious service and shall terminate the said service. The said service shall be monitored by institutional personnel so designated by the warden, to insure the safety and security of the institution. (14) No demonstration of an unusual or inflammatory nature such as posturizing or such conduct as may arouse the passions of other inmates shall be permitted in the general population by the Black Muslims. (15) Literature prepared by the Black Muslims which is inflammatory, anarchistic, treasonable or subversive shall be considered as contraband and subject to seizure and confiscation by the prison officials. (16) Upon a showing by the Black Muslims and their ministers that they can conform to prison discipline, and that they can conduct services in a proper spiritual manner, without endangering the safety and security of the institution, these rules are subject to change at the discretion of the Commissioner of Correction. (17) Since certain Muslim ministers have been known to have criminal records including the leader thereof, Elijah Muhammad, as an additional precautionary measure to insure the safety and security of the prison, each Muslim minister applicant seeking admission as such to a penal institution under the jurisdiction of the Department of Correction shall submit to fingerprinting by the institutional authorities. A Black Muslim minister who is known to have a criminal record shall be denied admission to any institution in the Department of Correction. (18) No Black Muslim inmate shall conduct services in the place of a Muslim minister. (19) An appropriate meeting place of worship shall be designated in each prison for holding religious services, and no services may be held outside of such designated place. (20) No special insignia, regalia or method of dress, or presentation of the person shall be permitted to the Black Muslims. (21) The warden may limit the number of inmates who shall attend religious services at one time, as may be reasonably necessary and practically accommodated so as to insure the safety and security of the prison. All of which is respectfully submitted. PAUL D. McGINNIS Commissioner of Correction State of New York May 2, 1966
[17] *fn6 These Rules and Regulations were dated November 16, 1967, and provided: Pursuant to the decision in Sostre v. McGinnis, 334 F.2d 906, as implemented by the decision in SaMarion et al. v. McGinnis, 253 F. Supp. 738, and pursuant to the decision of the New York State Supreme Court, Special Term, dated October 2, 1967, the following rules and regulations are promulgated, which rules and regulations relate to the practice of Muslimism in Attica State Prison and all other penal institutions under the jurisdiction of the Department of Correction of the State of New York: 1. The Muslims shall have each and every religious right and privilege extended to Catholics, Protestants and Jews in the exercise of their respective religions. 2. Muslims may have a diet which does not contain prohibitive food substances but this is subject to modification by reason of reasonable regulations relating to the food problem of the entire prison population. The Muslims may substitute any food which is on the prison menu in place of a prohibitive food. 3. Prison inmates who desire to learn about the religious practice of the Muslim sect may attend religious services with the Muslims at the time and place to be appointed by the Warden, subject only to reasonable restrictions as to space and prison security. 4. Muslim ministers may attend at the prison for the purpose of preaching to the Muslims in congregational services and for the purpose of individual religious administration to the Muslims with the same rights and privileges extended to other ministers, priests or rabbis except that no form of compensation will be offered or paid to the Muslim ministers for such attendance at the prison. 5. Fingerprinting of each Muslim minister attending at the prison shall be required and will be also required of all clergymen visiting the prison, whether regularly on the payroll of the State of New York or attending as visiting clergymen. 6. Muslims may subscribe to any publication to which they may wish to subscribe but such publication shall be subject to censorship by the Warden, including the exclusion of said publication if in the reasonable opinion of the Warden the publication represents a threat to the security of the penal institution. 7. The Muslim ministers may wear such robe or religious raiment as they may desire and the Muslim inmates may wear such religious insignia which, in the reasonable opinion of the Warden, will not incite to prison disturbance in the inmate population.
[18] *fn7 These revised Rules provide: 1. The Muslims shall have each and every religious right and privilege extended to Catholics, Protestants, and Jews in the exercise of their respective religions. Ministers, priests, or rabbis of all these stated religious faiths may attend at the prison for the purpose of preaching to the inmates in congregational services and for the purpose of individual religious ministration to the inmates. 2. Fingerprinting of all clergymen visiting the prison, whether regularly on the payroll of the State of New York or attending as visiting clergymen shall be required. 3. Clergymen may wear such robe or religious raiment as they may desire and inmates may wear such religious insignia which, in the reasonable opinion of the Warden, will not incite to prison disturbance in the inmate population. 4. Prison inmates, who desire to learn about the religious practice of any sect, including the Muslim religion, may attend religious services at the time and place to be appointed by the Warden, subject only to reasonable restrictions as to space and prison security. 5. Muslims shall be provided whenever possible with meals that are wholly free of pork and pork products, and when that is not practicable then there shall be available at each meal some food free of those substances. 6. Inmates may subscribe to any publication to which they may wish to subscribe, including "Muhammad Speaks", but such publication shall be subject to censorship by the Warden, including the exclusion of said publication if in the reasonable opinion of the Warden the publication represents a threat to the security of the penal institution.
[19] *fn8 On August 4, 1966, Judge Henderson granted the motion of plaintiff Lionel X. Jones to amend his complaint to add a claim for money damages and the Pro se amended complaint was filed on August 5, 1966. The amended complaint for money damages of plaintiff Willis X. Bryant, Jr. was filed on September 20, 1966, pursuant to Judge Henderson's order of that same date. Judge Henderson granted plaintiff Arthur Johnson's request to amend his complaint to add a claim for money damages on September 28, 1966. A handwritten, Pro se complaint was received by the Clerk but was apparently never filed.