OpenJurist

966 F2d 901 Ta Muhammad Ame v. A Lynaugh

966 F.2d 901

Al Aswad T.A. MUHAMMAD, a/k/a Alvin Jones, and Jihaad A.M.E.
Saahir, Plaintiffs-Appellants,
v.
James A. LYNAUGH, Director, Texas Department of Criminal
Justice, Institutional Division, et al.,
Defendants-Appellees.

No. 91-4425

Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

June 15, 1992.
Rehearing Denied July 15, 1992.

Jihaad A.M.E. Saahir, pro se.

Aswad T.A. Muhammad, pro se.

Louis V. Carrillo, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court For the Eastern District of Texas.

Before POLITZ, Chief Judge, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

1

Al Aswad T.A. Muhammad and Jihaad A.M.E. Saahir appeal the dismissal of their 42 U.S.C. § 1983 civil rights suit. Finding no error we affirm.

Background

2

Muhammad and Saahir, inmates of the Texas Department of Criminal Justice, proceeding pro se and in forma pauperis invoked 42 U.S.C. § 1983, alleging that they were being denied their constitutional right to exercise religious freedom.

3

Muhammad and Saahir maintain that they are practicing Muslims and are members of the Nubian Hebrew Mission-Ansaaru Allah Community. They challenge as unconstitutional TDCJ regulations which prohibit their donning Kufi caps1 outside of the prison chapel and their cells, and which forbid the wearing of religious patches or insignias. They also claim that the prison's Muslim chaplain discriminates against them because they adhere to the pedagogy of a different Muslim Illuminate, Iman Isha of New York City, New York. Finally, Muhammad argues that he unconstitutionally has been denied the right to purchase, use, and retain various religious items, specifically a tape player and Arabic language tapes.

4

After a lengthy evidentiary hearing the magistrate judge found no constitutional violations and dismissed the complaint as frivolous. 28 U.S.C. § 1915(d). The plaintiffs timely appealed.

Analysis

5

Imprisonment necessarily entails a loss of manifold rights and liberties. A prisoner is not free to do that which he might wish to do, nor may he do allowable things at a time and in a manner he might prefer. Several constitutional rights are protected, however, including the right to practice one's religious beliefs. Restrictions thereon must be reasonably related to legitimate penological interests.2 Several factors are relevant in determining whether a prison regulation infringes on an inmate's constitutional rights: (1) is there a valid, rational correlation between the prison regulation and the legitimate governmental interest advanced; (2) are there alternative means of exercising the rights that remain available to the inmates; and (3) what is the impact of an accommodation in favor of the inmate on prison staff, other inmates, and the allocation of prison resources generally.3 We review the magistrate's findings under the clearly erroneous standard.4

I. Kufi Caps and Religious Insignia

6

At the hearing before the magistrate judge two senior corrections officers testified that security was the primary rationale powering the regulations which restrict the wearing of Kufi caps and other religious insignia in the prison dayrooms and other areas. They testified that weapons, such as shanks and razor blades, could easily be secreted inside a Kufi cap. They also testified that the inmates use symbolic banners to "show ... their colors," a proven cause of problems in the dayrooms and work stations.

7

We are persuaded that the evidence introduced at the hearing established that the regulations restricting the use of Kufi caps and religious insignia bear a reasonable relationship to the legitimate penological interest of prison security.5 Other circuits addressing this issue have reached the same conclusion.6

8

By permitting inmates to wear Kufi caps and religious insignia in their cells and in religious services in the chapel, the TDJC has provided an opportunity for the exercise of religious freedoms as guaranteed by the Constitution. Allowing inmates to wear these religious articles in other areas conceivably could undermine the TDJC's legitimate penological interests, primarily its overriding concern for prison security.

II. The Chaplain

9

Plaintiffs contend that the prison chaplain denied their right to practice their religion and discriminated against them because they follow a different Muslim Illuminate. Specifically, plaintiffs maintain that the prison chaplain denied them the right to make copies of religious tapes even though the inmates of his particular Islamic persuasion were permitted to do such.

10

During the hearing several inmates testified that Muslim religious activities are open to all inmates. The chaplain testified that he ministers to every Muslim inmate, regardless of the Illuminate followed, and that he has never excluded any inmates of any branch of Islam. With regard to the tapes, the chaplain testified that he refused to give Saahir one tape because it was the only copy he had available.

11

The evidence reflects no constitutional violation by the chaplain. To the contrary, the prison chaplain afforded plaintiffs the same opportunities to worship made available to all Muslim inmates, and his reason for denying the use of the particular tape was patently legitimate. Plaintiffs have been given the same reasonable opportunity to practice their faith as that provided other religious groups.7

III. The Tape Player

12

Muhammad raises an equal protection claim contending that he was denied a tape player while other inmates were not. He claims that a tape player is necessary to learn Arabic, the original language of the Muslim Holy Book.

13

During the hearing Saahir and another inmate, Roy Sneed, testified that they own and were allowed to operate tape players. It was established during the hearing, however, that Muhammad is quartered in the Michael Unit of TDJC where tape recorders are not allowed; Saahir and Sneed are housed in Beto I Unit where they are permitted. This rule on the use of tape recorders is not related to any particular religious beliefs or practices.

14

To succeed in his equal protection claim Muhammad must prove purposeful discrimination resulting in a discriminatory effect among persons similarly situated.8 He has failed to make this showing. All of the inmates similarly situated, i.e., those housed in the Michael Unit, are not permitted to possess tape players. Muhammad is no exception. He has not demonstrated a constitutional violation of his individual rights or a violation of the rights of all of the residents in the Michael Unit. His claim has no merit.

15

AFFIRMED.

ON PETITION FOR REHEARING

July 15, 1992

PER CURIAM:

16

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.

1

The Kufi cap is a small, round, head covering with religious significance for Muslims

2

O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)

3

Turner, 482 U.S. at 89-90, 107 S.Ct. at 2261-62

4

Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)

5

The Supreme Court in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), identified several important functions of the corrections system, the first being the "institutional consideration of internal security within the corrections facilities...." Id. at 823, 94 S.Ct. at 2804

6

Butler-Bey v. Frey, 811 F.2d 449 (8th Cir.1987); St. Claire v. Cuyler, 634 F.2d 109 (3d Cir.1980); Burgin v. Henderson, 536 F.2d 501 (2d Cir.1976)

7

Muhammad's claim that the prison chaplain denied him the opportunity to purchase a Kufi cap and prayer rug were addressed in Muhammad v. Moxon, 952 F.2d 400 (5th Cir.1992) (unpublished), and the magistrate judge properly dismissed Muhammad's claims in the present action concerning this same issue. See Mayfield v. Collins, 918 F.2d 560 (5th Cir.1990)

8

McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)