
USCA1 Opinion

	




          April 23, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1822                                   RICHARD A. STREET,                                Plaintiff, Appellant,                                          v.                             MICHAEL T. MALONEY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Richard A. Street on brief pro se.            _________________            Irene  M.  Carr, Counsel,  Department  of  Correction,  and  Nancy            _______________                                              _____        Ankers  White,  Special  Assistant  Attorney  General,  on  brief  for        _____________        appellees.                                 ____________________                                 ____________________                      Per Curiam.  Plaintiff-appellant Richard A. Street,                      __________            a Massachusetts  prison inmate, appeals the  grant of summary            judgment   in  favor  of  defendant  correctional  officials.            Summary judgment was entered by the district court after this            court upheld the dismissal of certain claims but reversed the            dismissal of plaintiff's  free exercise and equal  protection            claims.  Street v.  Maloney, No. 90-1280, slip op.  (Dec. 29,                     ______     _______            1990).  For the reasons that follow, we vacate and remand.                                          I                                          I                                          _                      Street  is  an adherent  of  a  sect of  the  Hindu            religion  commonly known as Hare Krishna.   He initiated this            action  under 42  U.S.C.    1983  after  prayer beads  and  a            religious  necklace   that  he  had  ordered   in  1988  were            confiscated  by prison  officials.   At the time,  Street was            confined  to the  Departmental  Segregation Unit  (DSU),  the            prison's  highest  security  unit.    His  amended  complaint            charged that defendants Smith,  the prison property  officer,            Captain Gallagher, then administrator of the DSU, Maloney and            Raikey, former and present  prison superintendents, and Hall,            a former deputy  superintendent, were  responsible, in  their            individual  and official  capacities, for  the expropriation.            The  core  of  Street's  complaint  is  that  the  defendants            infringed his  First and Fourteenth Amendment  rights to free            exercise  of  religion and  equal protection  of the  laws by            confiscating the prayer beads and religious necklace while at            the  same time  allowing  Roman Catholic  inmates to  possess            rosary beads and wear crucifixes.1                      On  remand,   the  defendants  moved   for  summary            judgment.   They  argued  that  1)  the confiscation  of  the            plaintiff's  prayer beads  was  justified  because  of  their            "great  potential  as a  dangerous  weapon,"  2) the  unusual            security  risks  posed  by  the prayer  beads  constituted  a            rational basis  for any  difference in treatment  between the            plaintiff and Catholic inmates, 3) the claims against Captain            Gallagher  should  be dismissed  under Fed.  R. Civ.  P. 4(j)            because of failure to  effect service of process, and  4) the            claims against the remaining  defendants should be  dismissed            because  of plaintiff's  failure to  individuate the  claims,            that is,  to allege facts showing  which defendants performed            the acts that purportedly impaired his constitutional rights.                      Defendants'  motion was  supported by  Smith's two-            page  affidavit.  As  the prison property  officer, Smith was                                            ____________________            1.   Plaintiff's  amended  complaint  also  alleged  that the            confiscation  was  in contravention  of the  Fourth Amendment            right to be free of unreasonable seizures and  the Fourteenth            Amendment  right to due  process, and that  the processing of            the   incoming   religious   items   violated   institutional            regulations regarding  inmate mail.   Defendants here  assert            that  only plaintiff's free  exercise/equal protection claims            survive  our prior  ruling  in this  case.   We  reject  that            contention.    Our  prior  opinion   explained  that  because            plaintiff's amended complaint was not in the record, we would            not  presume  that  it was  before  the  district court  and,            consequently, we  would not address the  allegations therein.            Thus, plaintiff  remained free to  pursue the above-mentioned            claims on remand.                                         -3-            responsible for handling  all incoming property,  maintaining            records of  cell contents  and contraband, and   transferring            property  to   other  institutions.     Smith  recalled  that            plaintiff's  prayer beads  consisted  of  "approximately  100            beads strung together on a strong  cord and joined to form  a            circle which measured approximately 36 inches, doubled."  The            beads,  he attested, "were a  solid, hard material" and "were            large, approximately 3/4 inch in diameter."  The prayer beads            "did  not  resemble in  any way  the  rosary beads  which are            allowed inside the  institution.  The  rosary beads that  are            allowed  . . . generally consist of very small hollow plastic            beads joined  on a  weak chain  with small,  easily breakable            links."  Based on his experience, Smith felt that plaintiff's            prayer  beads  "posed  a  security risk  to  the  institution            because  of their potential use  as weapons such  as a `sap',            `numchucks', or  as a  `garotte'."2  Finally,  Smith affirmed            that DSU inmates "have  been placed there as a result  of the            most   serious  rules   violations,  involving   violent  and            extremely   disruptive   behavior,"   and   that   "the   DSU            administrator  and the  officer in  charge  of the  West Wing            Segregation Unit also saw the  beads and determined that they                                            ____________________            2.   According  to  Smith,  a "sap"  consists  of  a  sock or            similar  container into  which hard  objects are  placed, and            which  is  used to  inflict  blows; "numchucks"  are  sets of            batons connected by  a length of  cable or chain, used  for a            similar  purpose; a "garrotte" is a cord, thong, or length of            wire, used to strangle a victim.                                         -4-            must be removed because of the serious security concerns they            posed."   The affidavit  identified neither of  the other two            officers by name.                      Plaintiff's opposition contested the rationality of            the  defendants' asserted  security  justification.    In  an            accompanying affidavit,  Street stated  that the  108 knotted            beads  were  1/2 inch  in diameter  and  made of  very light-            weight, easily breakable wood, similar  to balsa wood.   "The            beads  are not  solid, but  are hollow, like  Catholic rosary            beads, with a hole in the  center so they can be strung  on a            string."   The  string, about  36 inches  long and  1/64 inch            around, was asserted to be very weak and easily  broken.  The            religious necklace was described as 18 inches long consisting            of  54 tiny  wooden beads  (3/16 inch  long and  1/8 inch  in            diameter)  strung on a "thin weak string" which a young child            could "easily break."                      With  respect to  his religion,  Street's affidavit            explained  that  his faith  required  1728  repetitions of  a            particular  mantra daily,  using special  prayer beads.   The            plaintiff  claimed  that  "[w]ithout  said beads  it  is  not            possible for  me to  obey this  commandment of  my religion."            Street  maintained  that he  had  been  allowed prayer  beads            during  a 1985  confinement in  the DSU,  and that  after his            return there in June 1988 he received permission from Hall to            order  the  beads.    When  they  arrived,  however,  Captain                                         -5-            Gallagher  refused  to  allow  him  to  have  them.    Street            protested  to  Hall,  and  to Hall's  superiors,  Raikey  and            Maloney,  about   the  confiscation,  but   they  refused  to            intervene.  Street  declared that neither  he nor the  sender            received the  required notice that the  beads were considered            contraband.   Finally, Street's  affidavit asserted  that his            jailers said to  him that  "the Hare Krishnas  are fools  and            worship a false God."                      The district  court granted the  defendants' motion            for  summary  judgment.   The  court's  order  states in  its            entirety:                 Motion allowed.  Alleged  refusal to permit  inmate                 to possess hare krishna [sic] beads and necklace in                 the  Departmental Segregation Unit is not violative                 of  Plaintiff's  Constitutional  rights,   as  such                 refusal   is   reasonably  related   to  legitimate                 penological  interests.  Turner v. Safley, 482 U.S.                                          ______    ______                 78, 85 (1987).            The standard  of review  is familiar,  see, e.g., Garside  v.                                                   ___  ____  _______            Osco Drug, Inc., 895  F.2d 46, 48-49 (1st Cir. 1990),  and it            _______________            would be pleonastic to repeat the standard here.                                          II                                          II                                          __                        Prison restrictions that implicate constitutional            rights  are  judged  by  the reasonableness  standard.    See                                                                      ___            Washington  v. Harper,  494 U.S. 210,  224 (1990);  O'Lone v.            __________     ______                               ______            Estate of Shabazz, 482 U.S. 342 (1987); Turner v. Safley, 482            _________________                       ______    ______            U.S.  78 (1987).    Under this  standard,  an inmate's  First            Amendment right  must yield  to prison rules  and regulations                                         -6-            that   are  "reasonably  related  to  legitimate  penological            interest."   Turner, 482 U.S. at  89.  To  ensure that judges                         ______            accord   appropriate  deference   to   decisions  of   prison            administrators  anent the delicate balance of these competing            principles,  the Court  put in  place a  "reasonableness test            less  restrictive than  that  ordinarily  applied to  alleged            infringements of fundamental constitutional rights."  O'Lone,                                                                  ______            482 U.S. at 349 (punctuation and citation omitted).  Thus, if            prohibiting plaintiff's possession  of certain  paraphernalia            in  the DSU strikes a reasonable balance between the right to            free exercise of religion  and the prison's asserted interest            in security,  plaintiff's First  Amendment claim will  fail.3            See Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988).            ___ ____    ________                      The parties have briefed the appeal in terms of the            Turner rubric.   Assuming,  arguendo, that Turner  applies to            ______                      ________       ______            the individualized decision here at issue, see, e.g., Frazier                                                       ___  ____  _______            v. Dubois,  922  F.2d 560,  562  (10th Cir.  1990)  (applying               ______            Turner to an individualized  prison action), the Turner Court            ______                                           ______            identified four factors that "are relevant to, and that serve            to  channel,  the  reasonableness inquiry."    Thornburgh  v.                                                           __________            Abbott,  490  U.S. 401,  414 (1989).    In O'Lone,  where the            ______                                     ______            curtailment  of  Muslim inmates'  rights to  attend religious                                            ____________________            3.  We  assume,  for  present  purposes,  the   sincerity  of            Street's  professed  religious  beliefs.    Since  defendants            elected  not to dispute this issue below, they cannot dispute            it for the first time on appeal.                                         -7-            services was upheld, the  Court summarized the Turner factors                                                           ______            in the following manner:                      1)   Does  the  challenged  regulation have  a                           logical  connection   to  the  legitimate                           governmental interests invoked to justify                           it?                      2)   Do  alternative  means of  exercising the                           right remain open to prison inmates?                       3)   What  impact  would the  accommodation of                           the inmate's asserted right have on other                           inmates,  on  prison  personnel,  and  on                           prison resources generally?                      4)   Are there obvious,  easy alternatives  to                           the   policy   adopted   by  the   prison                           administrators?            O'Lone, 482 U.S. at 350-53 (citing Turner, 482 U.S. at 89-90,            ______                             ______            93).     These  factors   have  regularly  been   applied  in            determining whether a prison policy violates an inmate's free            exercise rights.   See, e.g.,  Abdullah v.  Gunter, 949  F.2d                               ___  ____   ________     ______            1032,  1035-36 (8th Cir. 1991), cert. denied, 112 S. Ct. 1995                                            _____ ______            (1992);  Fromer v. Scully, 874 F.2d 69, 74-76 (2d Cir. 1989);                     ______    ______            Cooper v. Tard, 855 F.2d 125, 128-30 (3d Cir. 1988); Williams            ______    ____                                       ________            v.  Lane, 851 F.2d 867, 876-78 (7th Cir. 1988), cert. denied,                ____                                        _____ ______            488 U.S. 1047 (1989);  cf. Skelton v. Pri-Cor Inc.,  963 F.2d                                   ___ _______    ____________            100, 103-04 (6th Cir. 1991).                                         III                                         III                                         ___                      With respect to plaintiff's free exercise claim, we            think that  genuine issues of material  fact precluded brevis                                                                   ______            disposition.  There are, for example, unanswered questions of            fact  as to  the  composition of  the  prayer beads  (weight,                                         -8-            density,  etc.) which,  in turn,  prevent a  determination of            whether the ban on  them is reasonable, or, for  that matter,            whether  rosary beads in the  hands of other  DSU inmates are            deserving of  materially different treatment.   We accept the            defendants' legitimate  concern that  religious items in  the            possession of inmates may lead to security problems.  But, we            believe that the plaintiff has sufficiently put into question            the  possible danger to the  security of the  prison posed by            the prayer beads here at issue.                      It  also seems  logical  that the  more solitary  a            religious practice, the  less plausible is the claim  that an            institutional  security  interest  is  compromised.    Turner                                                                   ______            instructs that  "a regulation  cannot be sustained  where the            logical connection  between the  regulation and  the asserted            goal  is so  remote  as to  render  the policy  arbitrary  or            irrational."    Turner, 482  U.S.  at  89-90.    Unlike  free                            ______            exercise  claims  involving  otherwise   non-religious  items            (diet,  grooming,  name  changes,  and  the  like)  or  those            involving  group associations  (such as  congregate worship),            any  of which might impact the general prison population, the            religious activity  associated with the described  use of the            prayer beads appears to involve solely private conduct.   The            significance  of this  fact is  highlighted here  because, as            plaintiff  points out,  he would  never be  able to  take the            prayer beads outside  his cell; according to him, DSU inmates                                         -9-            are uniformly searched,  cuffed, and shackled before  leaving            their cells.   Such a restriction, if true - - and defendants            have not challenged  the veracity of plaintiff's  account - -            posits  an  accommodation  that  both  undercuts  defendants'            stated security  concerns and raises questions  as to whether            they overreacted in denying Street the prayer beads.  Cf. id.                                                                  ___ ___            at 90 (under the fourth factor of the test, "the existence of            obvious,  easy  alternatives   may  be   evidence  that   the            regulation   is  not  reasonable,   but  is  an  `exaggerated            response' to prison concerns") (citation omitted).                      We  note, therefore,  without implying any  view of            the  merits, that the record reveals a genuine question as to            whether defendants' justification is sufficient to outlaw the            prayer  beads.4  See Mosier  v. Maynard, 937  F.2d 1521, 1527                             ___ ______     _______            (10th  Cir.  1991)  (remanding  for factual  development  and            application  of  Turner  factors  where  plaintiff  raised  a                             ______            genuine  issue of material fact as to the reasonableness of a            prison  policy); Swift  v. Lewis,  901 F.2d 730,  731-32 (9th                             _____     _____            Cir.  1990) (vacating  summary  judgment in  favor of  prison            officials in the absence of evidence that officials' asserted                                            ____________________            4.  Although we have been discussing plaintiff's prayer beads            to  this  point, the  same  analysis  applies to  plaintiff's            religious necklace.   Appellees,  in their brief,  argue that            the physical  characteristics of  the beads and  the necklace            are so similar as to be  virtually indistinguishable from one            another, and  that both items  pose the same  security risks.            On remand, of course, the defendants will have an opportunity            to revisit this issue, should they so desire.                                         -10-            reason   for  prison   grooming  policy   justified  treating            appellants differently from other religious groups); see also                                                                 ___ ____            Ali v.  Dixon, 912  F.2d 86,  91 (4th  Cir. 1990);  Hunafa v.            ___     _____                                       ______            Murphy,  907 F.2d  46,  48 (7th  Cir.  1990); cf.  Friend  v.            ______                                        ___  ______            Kolodzieczak, 923 F.2d 126 (9th Cir. 1991) (affirming summary            ____________            judgment  in favor  of  prison  officials because  regulation            prohibiting Roman Catholic  inmates from possessing  rosaries            in their cells satisfied Turner test).5                                     ______                                          IV                                          IV                                          __                      We turn next to plaintiff's claim  that he has been            subjected  to differential treatment because of his religion.            The essence of the Equal Protection Clause is that government            should treat  similarly situated  persons alike.   See, e.g.,                                                               ___  ____            Cleburne  v.  Cleburne  Living  Center, Inc.,  473  U.S.  432            ________      ______________________________            (1985).    Prison  administrators  confronted with  an  equal            protection claim "need only  demonstrate a rational basis for            their distinctions between organizational groups."  Jones  v.                                                                _____            North Carolina  Prisoners' Union,  433 U.S. 119,  134 (1977).            ________________________________            Courts must defer to such differentiation  unless it is clear            that  "the two groups are so similar that discretion has been            abused."   Id. at 136;  see also Feeley  v. Sampson, 570 F.2d                       ___          ___ ____ ______     _______            364, 371 (1st Cir. 1978) (explaining that prison authorities'                                            ____________________            5.  Because  the  case  must   be  remanded  to  resolve  the            questions we have mentioned,  we need not address  the second            and  third  Turner factors.   We  think  it fitting  to note,                        ______            however,  that  neither  defendants'  moving  papers  nor the            district court's order addressed either point.                                         -11-            decisions cannot be arbitrary);  Nadeau v. Helgemoe, 561 F.2d                                             ______    ________            411,  416 (1st  Cir. 1977) (similar).   Thus, so  long as the            prison  officials'   response  is  shown   to  be  rationally            supported, an equal  protection claim must  fail.  See  Reed,                                                               ___  ____            842  F.2d  at 962;  Brandon v.  District  of Columbia  Bd. of                                _______     _____________________________            Parole,  823 F.2d  644,  650 (D.C.  Cir. 1987).   Conversely,            ______            arbitrary enforcement of a stated security rationale violates            prisoners' rights.  See, e.g., Benjamin v. Coughlin, 905 F.2d                                ___  ____  ________    ________            571, 578 (2d Cir.), cert. denied, 498 U.S. 951 (1990).                                _____ ______                      Here, it is undisputed that Roman Catholic  inmates            in  the DSU are allowed rosary beads.  How prison authorities            have  accommodated  other  religions  is  relevant,  but  not            determinative,  in  deciding  whether a  plaintiff  has  been            treated in  an unduly  restrictive manner.   See  Feeley, 570                                                         ___  ______            F.2d at 371.  Assuming that prayer beads and rosary beads can            be equated for purposes of equal protection analysis, see id.                                                                  ___ ___            at  375; Hatch  v. Sharp,  919 F.2d  1266, 1268-69  (7th Cir.                     _____     _____            1990),  cert. denied,  111  S. Ct.  1693  (1991), it  is  not                    _____ ______            obvious if (or how)  the asserted security concerns  posed by            plaintiff's  confiscated  prayer  beads  and  necklace6  were            satisfied  so as to permit another religious group in the DSU            to possess rosary  beads.  If  the comparison between  prayer            and  rosary   beads  can  fairly  be   made,  such  differing                                            ____________________            6.  The defendants' affidavit is  silent anent the wearing of            religious necklaces or crucifixes in the DSU.                                         -12-            restrictions  point to  (but, again,  are not  conclusive of)            "possible  arbitrariness."    Feeley,  570 F.2d  at 364.   As                                          ______            noted earlier, the defendants' affidavit describing the  type            of rosary beads  that are "generally"  allowed to others  was            sufficiently countered by the plaintiff's  opposing affidavit            so as to  create material  questions as to  the relative  and            relevant differences between the religious items in question.            The affidavits also leave unresolved  questions about whether            the  treatment  accorded  the  plaintiff  was   disparate  or            intentional.   These conflicts preclude  summary judgment  on            this count.                                          V                                          V                                          _                      We  need go no further.  We have considered most of            the  parties' other arguments on  appeal and find  them to be            without merit.7   We hold,  however, on  the present  record,            that  the district court erred to the extent that it accepted            defendants'  proffered  security  rationale   as  conclusive.                                            ____________________            7.  We  say "most"  rather  than "all"  because the  district            court  did   not  address  two  other   questions  raised  on            defendants' motion for summary  judgment, namely, a  supposed            failure to  allege  defendants' personal  involvement and  an            asserted service-of-process  deficiency.  We take  no view of            these issues.   See Nereida-Gonzalez  v. Tirado-Delgado,  No.                            ___ ________________     ______________            92-2084,  slip op. at  13 (1st Cir.  April 14, 1993).   We do            note,  however,  plaintiff's  sworn  statement  that  despite            repeated  requests on  his  part, prison  officials have  not            provided him with  the address  of a defendant  who has  left            their  employ.    On  remand, plaintiff  should  be  afforded            another  opportunity to  perfect service  of process  on this            defendant.   By  the same  token,  defendants remain  free to            reassert the defenses mentioned.                                         -13-            Accordingly,   since   the   facts  surrounding   defendants'            justification for  refusing  to allow  plaintiff  to  possess            prayer  beads and  a religious  necklace in  the DSU  require            further development, we vacate  the grant of summary judgment            in  favor   of  the   defendants,  and  remand   for  further            proceedings to  be held before  another trier pursuant  to D.            Mass. Loc. R. 40.1(i).                      Vacated and remanded.  Costs to appellant.                      ____________________   __________________                                         -14-
