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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
PLAINTIFF #1
PLAINTIFF #2
PLAINTIFF #3
PLAINTIFF #4
PLAINTIFF #5
PLAINTIFF #6
PLAINTIFF #7
PLAINTIFF #8
PLAINTIFF #9
PLAINTIFF #10
Individually and on behalf of all others *
similarly situated. *
*
Plaintiffs *
*
vs. *
CIVIL ACTION NO. **********
*
TEXAS DEPARTMENT OF CRIMINAL *
JUSTICE, TEXAS DEPARTMENT OF *
CRIMINAL JUSTICE - INSTITUTIONAL *
DIVISION, TDCJ Executive Director *
DEFENDANT #1
DEFENDANT #2
DEFENDANT #3
DEFENDANT #4
DEFENDANT #5
DEFENDANT #6
DEFENDANT #7
DEFENDANT #8
DEFENDANT #9
DEFENDANT #10
*
Defendants *
PLAINTIFFS* BRIEF IN SUPPORT OF PLAINTIFFS* RESPONSE TO
DEFENDANTS* MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME PLAINTIFFS 1 - 10, Individually and on behalf of all others similarly situated (hereinafter "Plaintiffs"), and in accordance with the Federal Rules of Civil Procedure and with the Northern District Local Rules 56.4, 56.5 and 56.6, submit this their Brief in support of Plaintiffs* Response to Defendants* Motion for Summary Judgment. In furtherance thereof, Plaintiffs respectively offer the following:
I.
SUMMARY OF THE ISSUES
1. Plaintiffs present evidence sufficient to raise a fact question as to whether the majority or mainstream of the members of the church of Christ, both incarcerated and in the free world, believe that the church of Christ is a separate and distinct religion and not a Protestant denomination, and whether members of the church of Christ are totally deprived of their right to worship and to exercise freely their religious beliefs by being forced to participate in a communal service with denominations. Plaintiffs satisfy the standard established in Turner v. Safley, 482 U.S. 78 (1987) and have submitted evidence sufficient to raise a fact question as to a First Amendment violation.
2. A fact question exists as to whether Defendants have violated Plaintiffs* right to equal protection. Plaintiffs present evidence that the majority of the two million members of the church of Christ in the free world adhere to the identical tenets of belief outlined in Plaintiffs* Original Complaint. (Defendants* Appendix 7 at 134). Plaintiffs present evidence that the denial of the right to worship according to the basic tenets is a total deprivation of the class members* right to worship. Minority faiths are to be afforded a reasonable opportunity to pursue their faith, and requiring members of the church of Christ to participate in the "Christian, non-Roman Catholic" communal service with denominations constitutes a total deprivation of the right to worship.
3. A fact question exists as to whether Plaintiff ******* was retaliated against for his religious beliefs and whether Defendants "chilled" his right to free speech. Plaintiff ******* did not create a disturbance, made no threats, and merely criticized Chaplain ******'s doctrinal beliefs. (Appendix 15 at 616-617; Appendix 16 at 623-627). The right to criticize a public officer is a basic right. Clarke v. Stalder, 121 F.3d 222, 228 (5th Cir. 1997), cert. denied, citing Lewis v. City of New Orleans, 415 U.S. 130 (1974). Further, Plaintiff ******* was exercising his sincerely held religious beliefs when he made the statements to Chaplain ******, and the concurrent action taken against Plaintiff ******* was in retaliation for his exercising those beliefs and for his exercising his right to free speech.
4. Citing Preiser v. Rodriguez, 411 U.S. 475 (1973), Defendants contend that Plaintiff ******* cannot bring a Section 1983 action because he is complaining about a disciplinary hearing. Preiser is distinguished on the facts and is inapplicable to the present case. Plaintiff ******* is not automatically entitled to an accelerated release if he receives a favorable determination. Therefore, Preiser does not apply, and Plaintiff ******* may bring a Section 1983 action. Clarke, 121 F.3d at 226.
5. A plaintiff may bring a Section 1983 action for retaliatory transfer if the transfer was in retaliation for the exercise of his First Amendment rights. Goff v. Burton, 7 F.3d 734, 737 (8th Cir. 1993), cert. denied, 512 U.S. 1209 (1994), aff*d Goff v. Burton, 91 F.3d 1188 (8th Cir. 1996); Rouse v. Benson, 193 F.3d 936 (8th Cir.1999).
6. Defendants ***** and ***** are no longer employed by TDCJ-ID. Defendant ***** has been replaced in his position by Defendant ******* at TDCJ-ID. ***** ******** has assumed Defendant *******'s former position. Defendant ***** was sued as the former administrator of the chaplaincy program, and Defendant ***** as the acting administrator of that program. That position is now held by **** ******. Pursuant to Fed. R. Civ. P. 25 (d)(1), those Defendants are automatically substituted for their predecessors for any injunctive relief sought in their official capacities. (Defendants* Motion for Summary Judgment at 1, n.1). Defendants are correct in their statement that the agency should not be named as a party. However, striking the agency*s name from the list of parties will have no impact on the effectiveness of the relief sought. If the state officers disobey the injunction, financial penalties may be imposed on the responsible agencies. Alabama v. Pugh, 438 U.S. 781, 783 (1978) (Stevens, J., dissenting).
7. Plaintiffs seek damages against the named individual Defendants. A fact question exists as to whether or not the individual Defendants* conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. A reasonable person would have known that a retaliatory transfer of an inmate for the inmate*s exercising his religious and free speech rights is a constitutional violation. Based on eyewitness testimony and the determination of the disciplinary proceeding, individual Defendants knew that Plaintiff ******* did not create a disturbance, did not make any threats, and did not act maliciously, but was merely exercising his right to free speech. Therefore, a fact question exists as to whether qualified immunity applies to the individual Defendants.
II.
ARGUMENT
To support a Motion for Summary Judgment, "the moving party has a burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). As in the Adickes case, summary judgment would not be proper in this case even if Plaintiffs did not respond with affidavits and deposition testimony because Defendants* own summary judgment evidence raises fact questions that prevent a judgment as a matter of law.
For clarity, Plaintiffs address the issues in the same order as presented by Defendants in their supporting brief.
A. Substitution of Parties is Automatic Under Fed. R. Civ. P. 25 (d)(1).
Defendants ***** and ***** are no longer employed by TDCJ-ID. Defendant ***** has been replaced in his position by Defendant ******* at TDCJ-ID. ***** ******** has assumed Defendant *******'s former position. Defendant ***** was sued as the former administrator of the chaplaincy program, and Defendant ***** as the acting administrator of that program. That position is now held by **** ******. Pursuant to Fed. R. Civ. P. 25 (d)(1), those Defendants are automatically substituted for their predecessors for any injunctive relief sought in their official capacities. (Defendants* Motion for Summary Judgment at 1, n.1).
Plaintiffs sued the Executive Director of the TDCJ-ID, the former Director of the TDCJ-ID, the current director of the TDCJ, the former administrator of the Chaplaincy Program, and the acting administrator of the Chaplaincy Program, in their official capacities for prospective injunctive relief, which is proper under Alabama v. Pugh, 438 U.S. 781 (1978). Although the agency should not be named, striking the agency*s name from the list of parties will not impact the effectiveness of the relief sought. If the state officers disobey the injunction, financial penalties may be imposed on the responsible agencies. Alabama, 438 U.S. at 783. (Stevens, J., dissenting).
B. Plaintiffs Have Stated a First Amendment Violation.
Without presenting supporting documentation to validate their statements, Chaplain ******'s and ********'s affidavits attached to Defendants* Motion for Summary Judgment, state that the mainstream or majority of church of Christ members identify themselves as a denomination and can worship without observing the tenets outlined in Plaintiffs* Original Complaint. (Defendants* Appendix 2 at 93-98; Appendix 1 at 53-63). These statements are erroneous.
The origins of the church of Christ in America date to the Restoration Movement of the early 1800's (and in the world to 33 years after the birth of Christ; Romans 16:16: before even catholicism began in 120 A.D. or was accepted as established around 606 A.D.). (The preceeding parenthetical expression added by MRH as further explanation to readers of this page.) (Appendix 1 at 5-6; Appendix 3 at 39-40 ). The persons who originated the movement to restore the Christian faith to its New Testament origins abandoned denominations in hope of restoring the church of Christ to the way it existed in the First Century. Church of Christ adherents claimed from that date, as they do today, that the church of Christ is not a denomination and that it is a separate and distinct church, requiring worship according to basic tenets of faith outlined in the New Testament.
Members, including inmate members, have been taught and converted to the church of Christ, based on basic teachings such as the guideline course authored by Edward C. Wharton, entitled The Church of Christ...A Presentation of the Distinctive Nature and Identity of the New Testament Church. (Appendix 2 at 7-27). For example, members are taught that the church of Christ is not a denomination. (Appendix 2 at 12,14-15,17,19). Proponents of the church of Christ faith teach that the Bible instructs one to be baptized by immersion for the remission of sins in order to be saved. (Appendix 2 at 13-20). Members are also taught that acceptable worship should be conducted according to the scriptures and that it must include communion (the Lord*s Supper) each week and a cappella singing. (Appendix 2 at 21-24, 25-27).
Throughout the Nineteenth and Twentieth Centuries and through today, the majority of church of Christ members have been taught, and they believe, teach, and adhere to the basic tenets. James Williams Watkins, III*s affidavit cites to publications dated 1900, 1960, 2001, and 2003, which evidence that the basic tenets outlined in Plaintiffs* Original Complaint have been the prevailing beliefs of the church of Christ for over a century. (Appendix 3 at 29, 31-35).
Such evidence strongly supports Plaintiffs* position that the church of Christ does not belong under the TDCJ*s arbitrary "Christian, non-Roman Catholic" umbrella. The evidence further supports Plaintiffs* position that having no alternative but to worship with denominations is tantamount to having no choice of worship at all. As stated in every affidavit provided in support of Plaintiffs* response, mainstream church of Christ members will forego worship before attending a denominational worship service because they do not feel they are worshiping unless the service is conducted according to the basic tenets. (Appendix 8 at 107-554).
Chaplains ****** and ********, former church of Christ preachers who are currently TDCJ employees, contend that the mainstream or majority of church of Christ members no longer adhere to the beliefs as outlined by Plaintiffs. Defendants* affiants opine that inmates, members of the church of Christ, will have no problem worshiping in a service devoid of the worship requirements of the church of Christ. The weight to be given these particular witnesses is suspect considering their lack of qualifications and their association with Defendants.
Plaintiffs, on the other hand, provide testimony from the Presidents and Department Chairmen of recognized institutions of higher learning that teach the tenets outlined, editors and publishers of major publications, and renowned church of Christ preachers and teachers throughout the United States. (One such affidavit was submitted by myself, MRH.)
Founded in 1855, the Gospel Advocate Company publishes three magazines, Bible School curriculum and study guides, books, baptismal garments, signage, and other materials for use by local congregations of the church of Christ and individual Christians. (Appendix 1 at 1-2). Neil W. Anderson, Editor and Publisher of the Gospel Advocate, the oldest religious journal published for the benefit of the churches of Christ and its members, states:
There are more than 13,000 local congregations of the church of Christ in the United States. An overwhelming majority of these congregations hold to the basic beliefs as outlined above.
As with all religious groups, there is diversity within the beliefs of individual members and practices of local congregations. However, I believe the number of congregations who do not hold to the stated practices of a cappella music in their worship to be insignificant, perhaps a few hundred. The number of congregations who do not practice baptism by immersion is even fewer, and those who do not partake of the Lord*s Supper weekly even less. (Appendix 1 at 2).
Editors of other major church of Christ publications, Dr. Bert Thompson of Apologetics Press, Mr. Horace "Buster" Dobbs of the Firm Foundation, Dub McClish and David Watson of the Gospel Journal; Lloyd Ellison, a former Senior Board Chairman for Chase Bank who now publishes a church of Christ Bible study; and Dr. Benton Baugh, a mechanical engineer who has written a 500 page book on church of Christ doctrine, share Mr. Anderson*s belief that the majority of church of Christ congregations hold to the basic beliefs outlined in Plaintiffs* Original Complaint. (Appendix 4 at 56-74).
Chaplain ******** is a graduate of Freed-Hardeman University in Henderson, Tennessee. The current head administrators of Freed-Hardeman University do not agree with the statements made by Chaplain ********. Plaintiffs attach affidavits from Dr. Milton Sewell, President of Freed-Hardeman University; Dr. Earl D. Edwards, Director of Graduate Studies in Bible at Freed-Hardeman University; Dr. Donald Ralph Gilmore, Distinguished Professor of Bible and Interdisciplinary Studies at Freed-Hardeman University; and Dr. William R. Smith, Dean of the School of Biblical Studies at Freed-Hardeman University. These distinguished leaders in the church of Christ testify:
1. The mainstream or majority of church of Christ members believe in the basic tenets [outlined in Plaintiffs* Original Complaint];
2. The mainstream or majority of church of Christ members do not consider the church of Christ to be a denomination but a distinct church;
3. The mainstream or majority of church of Christ members do not believe they are participating in an acceptable worship service unless they are worshiping according to the tenets [outlined in Plaintiffs* Original Complaint];
4. The mainstream or majority of church of Christ members if given the choice between foregoing a worship service or attending a denominational worship service, i.e., Baptist, Methodist, etc., the mainstream or majority church of Christ member will choose not to attend a denominational service. (Appendix 5 at 75-86).
Plaintiffs provide similar testimony from Dr. Stafford North, former Dean and Executive Vice-President, Oklahoma Christian University, an institution of higher education serving and supported by members of the church of Christ; Truitt E. Adair, President and Executive Director of Sunset Bible Institute in Lubbock, Texas, a ministry training school for churches of Christ; Jimmie B. Hill, Director of the Duluth School of Bible Studies in Duluth, Georgia; and David Tarbet, Executive Director of the White Rock Fund, a 501(c)3 organization dedicated to the support of missionaries of churches of Christ throughout the world. (Appendix 6 at 87-98).
Preachers and teachers who travel throughout the United States and throughout the world and come in contact with members of the church of Christ also share Plaintiffs* beliefs. Plaintiffs present testimony from Lynn Odell Cook, who is the Director of Development for the churches of Christ Disaster Relief and who speaks at over 125 churches of Christ a year as well as at college lectureships; Clifford L. Lyons, who has been a full-time preacher in numerous states, New Zealand, and Russia; and Robert M. Robinson, Sr., who was an engineer and lawyer in the oil industry, which required extensive travel within the United States and overseas for over 40 years, allowing him to attend worship services in congregations all over the U.S., Europe, and the Middle East. (Appendix 7 at 99-106).
Plaintiffs also present testimony from 155 other teachers and preachers from 18 other states (23 states total) who similarly testify that mainstream or majority church of Christ members agree on the basic tenets and do not believe they are participating in an acceptable worship service unless they are worshiping according to the tenets outlined in Plaintiffs* Original Complaint. (Appendix 8 at 107-554). Thus, the statements made by Chaplain ******** and Chaplain ****** that church of Christ members are too diverse to agree on a worship service are clearly erroneous.
Additionally, the differences addressed in Chaplain ********'s affidavit are minor and would have no impact on the worship service. Even if differences exist, the Supreme Court states that the free exercise of religion is not limited to beliefs shared by all in a religious group. Thomas v. Review Board of Indiana, 450 U.S. 707, 716 (1981). The fact that minor differences may exist within the church of Christ should not prevent the class members from exercising their religious freedom.
Because the church of Christ is a separate and distinct religion, with worship tenets described by the New Testament and not followed by denominations, Defendants have failed to accommodate Plaintiffs* First Amendment right to the free exercise of religion.
The Free Exercise Clause of the First Amendment.
It is well established that prisoners must be accorded "reasonable opportunities" to exercise their religious freedom guaranteed by the First Amendment. Cruz v. Beto, 405 U.S. 319, 322 (1972). Plaintiffs present evidence that they are adherents of a faith that does not belong under TDCJ*s "Christian, non-Roman Catholic" umbrella and that the church of Christ is, in fact, a religion separate and apart from denominations. Thus, the arbitrary requirement that Plaintiffs participate in a denominational communal worship service that is not conducted according to church of Christ beliefs constitutes a total deprivation of Plaintiffs* right to worship. Such total deprivation is not a *reasonable opportunity* to exercise religious freedom.
Without acknowledging the separate and distinct nature of the church of Christ, Defendants justify the denial of a separate service to church of Christ members by classifying the church of Christ as a minority religion. The problem with this rationale is that the First Amendment requires that the prison system must provide an adherent of a minority religion a reasonable opportunity to pursue his faith, comparable to the opportunity afforded fellow prisoners who adhere to other religious precepts. Cruz, 405 U.S. at 322.
With 1743 members (Defendant*s Appendix 6 at 124), the class is significantly larger than any other religious group that has sought a separate service. For example, only 87 inmates list themselves as Sunni Muslim, and 23 inmates list Shiite Muslim as their religious preference. (Defendants* Appendix 6 at 124 ). Although the different Protestant denominations are represented by sizable numbers, Defendants present no evidence that any of these denominations consider themselves to be a separate and distinct religion nor have Defendants presented any evidence that these denominations seek a service separate from the "Christian, non-Roman Catholic" umbrella. Thus, Defendants* justification lacks validity in law and in fact.
In Turner, the Supreme Court determined that prison regulations alleged to infringe on constitutional rights are judged under a "reasonableness" test. The prison regulation that impinges on an inmate*s constitutional rights must be reasonably related to legitimate penological interests. In support of the reasonableness of their actions, Defendants cite O*Lone v. Estate of Shabazz, 482 U.S. 342 (1987), wherein prison inmates and members of the Islamic faith brought suit under 42 U.S.C. * 1983 contending that policies adopted by New Jersey prison officials prevented them from attending Jumu*ah, a Muslim congregational service held on Friday afternoons, thereby violating their rights under the Free Exercise Clause of the First Amendment. In O*Lone, prison officials established, by competent evidence, that bringing inmates in mass to the front gate on Friday afternoon created a bona fide security problem. The gate was the site of all incoming foot and vehicle traffic during the day, and prison officials viewed it as a high security risk area. Id. at 346.
Defendants also cite Canedy v. Boardman, 91 F.3d. 30 (7th Cir.1996) for the proposition that a prisoner may not be allowed to pursue each and every aspect of the practice of his religion if the denial of that aspect is valid because it conflicts with a legitimate penological objective. Canedy*s religious faith imposed a restriction on the display of his nude body to a member of the opposite sex. At times, female guards were present during routine strip searches, and Canedy was aware that female guards could sometimes see him in the nude while he was sleeping, showering, or using the toilet. The court held that the prison had a very strong interest in having its guards observe prisoners at all times and in all situations, and it had an interest in providing equal employment opportunity to women. Id at 33.
O*Lone and Canedy are distinguishable from the present case because the impingement on the inmates* First Amendment rights was reasonably related to legitimate security interests for the penal institutions. In contrast, Defendants present no evidence of a valid security concern that would be created by providing Plaintiffs a one hour worship service each Sunday. Furthermore, unlike the Defendants in O*Lone and Canedy, Defendants in the case at bar cannot meet the standards outlined in Turner.
Plaintiffs agree with Defendants that the factors relevant to finding whether a regulation is reasonable are: 1) whether there is a valid, rational connection between the regulation and the legitimate, neutral governmental interest used to justify it; 2) whether there exist alternative means for prisoners to exercise the constitutional right at issue; 3) the impact of an accommodation on prison staff, inmates, and allocation of prison resources; and 4) whether any alternative exists that would fully accommodate prisoners* rights at low costs to valid penological interests. Id. at 90-91.
1. There is no valid, rational connection between the regulation and the legitimate, neutral governmental interest used to justify it.
Defendants justify their failing to provide class members with a separate service by referring to the inclusion of the church of Christ in the "Christian, non-Roman Catholic" faith group category established by the TDCJ Chaplaincy Department, claiming that these services are structured in such a manner as to employ that which is held in common within the major faith group category. (Defendants* Appendix 6 at 113-114 ). Defendants present no evidence, and can present no evidence, that the sub-groups under the category of "Christian non-Roman Catholic," such as Baptists, Methodists, Lutherans, Episcopalians, claim to be anything but denominations, whereas the church of Christ claims to be a distinct church, separate and apart from denominations. Further, Defendants* contend, but present no evidence, that members of the aforementioned sub-groups will seek separate services if Plaintiffs* request is accommodated. Such contention is pure speculation because members of the sub-groups have not sought and are not seeking a separate worship service. Furthermore, Defendants present no evidence of any security concern, and Defendants can find no such security concern because Sunday is the day set aside for Christian worship within the system and is not a work day. Without presenting any evidence, Defendants claim that the State has inadequate resources to provide one hour each Sunday to the class members. Inadequate resources can never be an adequate justification for depriving any person of his constitutional rights. Smith v. Sullivan, 553 F.2d 373, 378 (5th Cir. 1977).
Even if inadequate resources could be a justification, Defendants provide no evidence that the accommodation requested by the class members of one hour each Sunday for worship services with a cappella singing and communion would be a serious drain on the State*s finances. Plaintiffs are not requesting a paid chaplain or spiritual advisor, but are merely requesting the opportunity to have a free world volunteer conduct a service respecting the basic tenets of mainstream or majority church of Christ members.
Defendants state in their Brief and have admitted in responses to Plaintiffs* Requests for Admission that forty-one (41) units offer church of Christ services, generally on a weekly basis. (Appendix 10 at 562-588). Defendants fail to mention why allowing church of Christ services on all other units would not be equally successful. Defendants further fail to mention why allowing a weekly service at all units could not be accommodated if a free world volunteer is available to conduct the service.
Even Defendant Chaplain ***** ******, upon whose Affidavit testimony Defendants greatly rely, agrees that such a service is possible. ****** testified in his deposition:
Q: Based on your experience in the system, do you know of any reason why the church of Christ could not have one hour on Sunday in each Unit?
A. It seems to me that that could be done. I don*t know any reason why it couldn*t. (Appendix 11 at 599-600).
Freddie Anderson, former TDCJ Correctional Officer and current church of Christ prison minister, concurs:
I am very familiar with the present structural organization the TDCJ uses to accommodate the various religious groups represented by TDCJ inmates. I believe that the TDCJ could accommodate church of Christ inmates with very little difficulty by providing them at least one hour every Sunday to worship according to the tenets outlined above and could provide them ample time for Bible study when free world volunteers are available. (Appendix 12 at 604).
Defendants argument that the one hour Sunday service cannot be provided because of the availability of appropriate supervision, time and space requirements, and security concerns of the facility (Defendants* Appendix 6 at 112) are based on pure speculation. The Supreme Court stated in Turner: "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. Defendants* policy of denying church of Christ members a separate Sunday service is arbitrary and irrational.
2. There does not exist alternative means for Plaintiffs to exercise the constitutional right at issue.
When discussing this factor, Defendants cite Scott v. Mississippi Dept. of Corrections, 961 F.2d 77 (5th Cir. 1992), Ganther v. Ingle, 75 F.3d 207 (5th Cir. 1996), and Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000). None of the cases cited by Defendants are applicable to this factor. In Ganther, an inmate founded his own Christian faith, the Household Faithful Gospel Church, which peaked at 40 members and had two (2) members by the time his motion was heard. Ganther demanded the use of the prison chapel to hold services for his church but could not distinguish his new church from any other denomination by worship practice or any other means.
Defendants cite Ganther for the proposition that a small denomination has no right to demand use of the prison facilities separate and apart from the more popular denominations. Ganther is inapplicable because unlike Ganther*s Household Faithful Gospel Church, the church of Christ is not a new religion originated by an inmate but, as previously discussed, is a historically documented, well established religion.
Green and Scott are also distinguishable. Both Green and Scott attack the grooming policies of the TDCJ as denying them free exercise of religion. The court held in both cases that requiring short hair and clean-shaven faces serves the State*s penological interests in identifying prisoners internally as well as in the event of escape. The court mentions that the plaintiff inmates had other means of exercising their religion, but the cases were decided on security issues.
Plaintiffs provide 176 affidavits of church of Christ leaders, preachers, and teachers from 23 states, a summary of which is attached as Appendix 9 at 555-561, who state that a Sunday service that includes Communion and a cappella singing is central to the church of Christ faith. (Appendixes 1, 3-8). By failing to provide Plaintiffs one hour each Sunday to worship according to the basic tenets of their faith, Defendants completely stifle Plaintiffs* religious expression.
Sub-group-related activities and supplemental worship services do not constitute an acceptable worship service for Plaintiffs. Plaintiffs recognize that these opportunities are rehabilitative and informative, and Plaintiffs request that they be allowed to participate in these activities; however, such activities in no way substitute for Sunday worship service. Interestingly, Defendants state in argument under this factor that TDCJ currently offers church of Christ services in 41 units, thus posing the question: What prevents Defendants from allowing church of Christ services in all units?
Additionally, Defendants state that inmates who request baptism are allowed to be baptized. However, Plaintiffs attach Affidavit testimony from Ken Dennis and Bobbie Brady stating that inmates have been, and are currently being denied requests for baptism by immersion. (Appendix 13 at 607,610). Herein lies the problem which Plaintiffs request this Court to address: Each Unit Chaplain is autonomous. And as long as the church of Christ remains under the "Christian, non-Roman Catholic" umbrella, the chaplain of a particular unit can, and does, impose his religious beliefs regarding such critical issues as baptism on inmates. Without Plaintiffs* requested injunctive relief, church of Christ volunteers are not free to teach baptism by immersion, and inmates are not free to accept baptism by immersion, which the church of Christ teaches and which the inmates believe, is essential for Salvation. Evidencing this problem Freddie Anderson states:
The Chaplain at the ***** unit preaches at the general "Christian Non-Catholics" religious service ideas he believes in, including that when one is saved, he is always saved, and that baptism is not necessary. At the same unit, I conduct a separate service on Sunday that is based on the teachings of the church of Christ as outlined above. Approximately two weeks ago, an inmate asked me my opinion on once saved always saved, and I explained that according to my understanding of the Bible and the church of Christ teachings, once saved, always saved is not correct. The following Thursday, the Chaplain discussed my teachings with me and instructed me not to teach against once saved, always saved, but to keep my service generic. I am sending him a letter telling him that I believe I have the right to teach the basic teachings of the church of Christ in my worship service. Further, I am pointing out to him that he is supposed to be teaching a "generic" Protestant service, and he is actually teaching the service with his particular religious bent. Based on my experience in the system, I have heard this to be a problem throughout the system. I believe that in order for the church of Christ members to be allowed to worship according to the basic tenets that they believe, they must be allowed to do this without interference from chaplains. (Appendix 12 at 604).
Thus, church of Christ volunteers need to be able to conduct a worship service, open to all TDCJ inmates who desire to come, that teaches the basic tenets without TDCJ Chaplains imposing or interjecting their religious beliefs. Further, without Plaintiffs* requested injunctive relief, individual TDCJ chaplains can, and do, arbitrarily ban church of Christ volunteers, some of whom have been involved in prison ministry for numerous years, from the unit or refuse to allow them access at all, depending on the chaplain*s own religious convictions. (Appendix 13 at 606-607, 609-610; Appendix 15 at 617-618).
3. Plaintiffs* request would not negatively impact prison staff, inmates, and allocation of prison resources.
Defendants argue that accommodating Plaintiffs* religious rights would cause a *ripple effect.* Specifically, Defendants claim that recognizing the church of Christ as a separate faith would cause a proliferation of claims. In support of this argument, Defendants cite Scott v. State of Mississippi, which dealt with a grooming regulation, and Udey v. Kastner, 805 F.2d 1218 (5th Cir.1986).
In Udey, an inmate claimed to require a diet of organically grown food washed in distilled water for religious reasons but could cite to no religious doctrine requiring such. The District Court found that Udey*s religious beliefs were not sincerely held and that his religious and dietary requirements would place an undue burden on the prison system. The Fifth Circuit affirmed the trial court*s decision and held that the prison system would have inadequate resources to accommodate every inmate*s dietary needs based on some religious claim, many of which would undoubtedly be fraudulent or exaggerated. Id. at 1220.
Scott and Udey are easily distinguishable on the facts because every inmate could make a bogus claim concerning individual grooming and specific food requests. In contrast, Plaintiffs seek the opportunity to worship according to tenets recognized by a historically documented faith with over two (2) million members nationwide. The numerous affidavits from leaders of the church of Christ show that the significant majority of members of the faith recognize the basic tenets as absolutely necessary for worship and salvation.
Defendants contend that requiring all Chaplains to provide Communion every Sunday would create problems, particularly when a volunteer from the church of Christ is not available. Plaintiffs are not requesting that Communion be provided as recognized by the church of Christ, unless a volunteer from the church of Christ is available to provide the Communion and conduct the worship service. Plaintiffs fail to see how any burden is created on the system if church of Christ volunteers are allowed to conduct a church of Christ service, preaching and teaching the basic tenets, without interference from any TDCJ employee or Chaplain.
Defendants also argue, based on ******'s and ********'s affidavits, that the church of Christ is not a united faith and that it would be impossible to satisfy all offenders adhering to the church of Christ with one service. Obviously, Defendants have not had a problem with the alleged different views in the 41 units that are currently providing separate services for church of Christ members, and Plaintiffs provide overwhelming evidence to refute these positions. Without question, despite a few minor differences, the majority of church of Christ members believe that baptism by immersion is essential for salvation and that a worship service must include Communion and a cappella singing. (Appendixes 1, 3-8).
Defendants argue that denominational sub-groups will seek separate services, a speculative problem which has no basis in fact. Defendants further argue that they will have suits from different sects of the Muslim religion, including those adhering to the Sunni, Shiite, and the Nation of Islam faith, seeking separate services. (Defendants* Appendix 6 at 118). According to the TDCJ*s listing of offenders by faith code, seven thousand five hundred eight-six offenders list the Muslim religion as their faith; of these, eighty-seven list the Sunni Muslim sect; twenty-three list the Shiite Muslim sect; and five hundred forty-three list the Nation of Islam. (Defendants* Appendix 6 at 124-125). Only a small percentage of the inmates who list Muslim as their religious preference even consider themselves to be part of a "sub-group" or "sect" of the Muslim faith. In the free world, even the small groups claiming to be separate will still worship with other Muslims.
For example, according to a recent Houston Chronicle newspaper article, 10,000 Muslims converged at the George R. Brown Convention Center to celebrate one of two mandatory world-wide feasts observed in Islam. In describing the meeting, the article quotes Aziz Shiddiqi, President of the Islamic Society of Greater Houston: "The celebration brought together Pakistani, Indian, Kuwaiti, Nigerian, Saudi Arabian and other Muslims. Despite our many different languages, races, cultures, and social backgrounds, we Muslims are all one." (Appendix 14 at 611). Richard Vara, Houston Muslims Celebrate Feast of Sacrifice, Houston Chronicle, February 12, 2003, at 24A. Also attached is an article from The Courier Journal of Louisville, Kentucky discussing Sunnis and Shiites worshiping together at the same mosque. Many of the Shiite Muslims interviewed for the article said that they attend prayer at Sunni mosques if their jobs cause them to be closer to those than Shiite mosques. (Appendix 14 at 614). Peter Smith, Islam in America-Shiites Differences With Sunnis Matter Little at Center, Courier-Journal, Louisville, Kentucky, November 18, 2001, at A15.
Defendants fail to present evidence of how allowing free world church of Christ volunteers to conduct a one hour Sunday worship service in every unit negatively impacts the prison staff, inmates, and allocation of prison resources.
4. A simple easy alternative exists to accommodate Plaintiffs* needs at low cost to valid penological interests.
Defendants contend that no easy alternative exists and quote Turner: "Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Turner, 482 U.S. at 90. But, Turner further states: "By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an "exaggerated response" to prison concerns." Id. Defendants may not have the resources necessary to give all one hundred and forty faith preferences a weekly time period in which to practice their faith, but Defendants present no evidence that a hundred and forty faith preferences are seeking weekly time.
Based on the evidence before the Court, the church of Christ is the only group claiming to be a separate and distinct faith from the five umbrella groups established by Defendants. The easy alternative Plaintiffs seek is a one-hour worship service every Sunday. The fact that Defendants are allowing such a service in forty-one units without a problem is evidence of the existence of an easy alternative.
Defendants* own expert, Chaplain ******'s, testimony supports the fact that an easy alternative exists. In response to a question in his deposition about whether the church of Christ should be provided a separate worship throughout the prison system, ****** responded:
I do think that we ought to provide them an hour, or an hour and a half, or thirty minutes whatever we can so they can practice their faith with the non use of instruments, with the partaking of the Lord*s Supper every Sunday, and Sunday only, and a teacher who believes the tenets of the faith that they believe." (Appendix 11 at 595).
As proved by Defendants* own evidence, an easy alternative exists to accommodate Plaintiffs* request. For these reasons, Plaintiffs have stated a First Amendment violation.
C. Plaintiffs Have Stated An Equal Protection Violation.
In Cruz, the Supreme Court set out the analysis to be used when an inmate claims that a prison practice violates the equal protection clause. The court held that an inmate who is an adherent of a minority religion must be afforded "a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts." Cruz, 504 U.S. at 322.
Defendants arbitrarily claim that the church of Christ is a denomination and that it is the same as any Protestant denomination. There is a constitutional difficulty in the State*s deciding whether two different religious beliefs are essentially the same. Further, the State may not "promote one religion or religious theory against another or even against the militant opposite." Allegheny County v. Greater Pittsburg ACLU, 492 U.S. 573, 593 (1989). Thus, Defendants cannot promote the Protestant doctrinal beliefs that baptism is not essential for salvation, weekly communion is not necessary, and the use of instrumental music in worship service is acceptable. In all of the "Christian, non-Roman Catholic" umbrella services, these doctrines are practiced and taught.
Protestants, Catholics, Muslims, Native Americans, and Jewish inmates are given the opportunity to practice the simple tenets of their faith. But church of Christ members are denied the opportunity to worship on the first day of the week with weekly Communion, a cappela singing, and the teaching of the necessity of baptism by immersion for the remission of sins, which are the basic tenets of belief of the church of Christ. (Appendix 1 at 2-3). Because Plaintiffs present ample evidence that for almost two centuries, the church of Christ has claimed to be a separate and distinct religion, members should be afforded the same reasonable opportunity to pursue their faith as afforded other religions.
D. Plaintiff ******* Has Stated A Retaliation and/or A First Amendment Violation.
Defendants contend that Plaintiff ******* cannot bring a Section 1983 action because he is complaining about a disciplinary hearing, citing Preiser v. Rodriquez, 411 U.S. 475 (1973). Preiser is not applicable because Plaintiff ******* is not automatically entitled to an accelerated release if he receives a favorable determination in overturning his disciplinary hearing. [I]f a favorable determination would not automatically entitle the prisoner to accelerated release, the proper vehicle for suit is * 1983. Clarke v. Stalder, 121 F3d 222 (5th Cir.1997), cert. denied, 524 U.S. 1151 (1999).
The Clarke case is directly on point with the present case on the retaliation issue. In Clarke, an inmate was charged with violating Louisiana*s "defiance" rule by threatening a guard with legal redress, by being "belligerent," and by threatening the guard with the words, "We*ll see who wins." He was found guilty by a prison disciplinary board, and the finding was affirmed after administrative appeal. The inmate had accumulated good time credits taken from him, and he was punished with transfer to another prison. Clarke, 121 F.3d at 225.
The State claimed that the "defiance" rule promoted a legitimate penological interest of institutional security because the rule prevented the escalation of tension that can arise from exchanges between inmates and guards. Id. at 229. The State had two theories: First, the State argued that to permit inmates to challenge verbally the legality of an official*s actions would lead to growing disrespect for the officials, and eventually the breakdown of authority. Second, the State argued that permitting inmates to make these challenges to prison officials was likely to result in confrontations because the words, "I*m going to sue," equate to "fighting words," geared to anger and to provoke prison staff. Id. The State further argued that a "confrontation situation" exists whenever a prison official and an inmate have a disagreement. Id. at 230.
In striking down this argument, the court stated that there is no such creature as a "nonconfrontation situation" and that requiring the inmate to put his grievance in writing is not a viable alternative. The court found that although prison officials may be annoyed by a prisoner*s threats to sue them, annoyance is insufficient to justify the suppression of free speech. Id.
The court stated: "The right to criticize our public officers, be they judges or policemen, has, since our earliest days, been deemed a basic right of all Americans." Id. at 228. In affirming the Magistrate*s findings, the court concluded that the "defiance" rule as applied was unconstitutional and that the inmate*s First Amendment rights had been violated. The court further stated that its conclusion is consistent with statements expressed in prior decisions. Id., citing Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995), cert. denied, 516 U.S. 1084 (1996) (a guard *may not harass an inmate in retaliation for the inmate complaining to supervisors about the guards*s conduct*), and Ruiz v. Estelle, 679 F.2d 1115, 1154 (5th Cir. 1982) (holding that prison officials were prohibited from *retaliating against inmates who complain of prison conditions or official misconduct*), opinion amended in part and vacated in part, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042 (1983).
Plaintiff ******* exercised his constitutional right of free speech and religious freedom to disagree with Defendant Chaplain ****** about religious doctrine. Even though Defendant Chaplain ****** was aware of the contents of Plaintiff *******'s statement because he had received the statement in writing weeks before, Chaplain ****** gave Plaintiff Freeman permission to read the statement in assembly. Plaintiff ******* began reading the statement, and when ****** instructed him to stop reading, ******* did so.
According to eyewitness testimony, Plaintiff ******* did not create a disturbance, did not make any threats, and did not act maliciously in any manner. (Appendix 15 at 616-617; Appendix 16 at 623-627). Even Guy Megliorino, the hearing officer who heard Plaintiff *******'s case, testified that he reduced the incident from a major case to a minor case, something he did in only two percent of the cases he handled daily, because he did not find enough evidence to support the disciplinary action written against *******. (Appendix 17 at 636).
Concerning the incident, Guy Megliorino further testified:
Q: Okay. Have you - have you ever seen an inmate shipped as a result of a minor case found against him?
A: I would be guessing. No, I haven*t unless there was other circumstances why he was shipped. I haven*t seen that.
Q: Did you know what happened to **** ******* after this hearing?
A: No, sir. As far as him being shipped?
Q: Right.
A: No, sir.
Q: Would it surprise you if he was shipped that day?
A: Would it surprise me? I guess it would.
Q: Okay. You didn*t find anything in your hearing that indicated that **** ******* was any kind of security threat, did you?
A: Within the incident that occurred, he was not a threat within that violation that he was written against. (Appendix 17 at 637-638).
How can Plaintiff *******'s action be insubordination when Chaplain ****** knew the contents of the statement and gave permission to read it? Assuming arguendo that the statement qualifies as insubordination, under the test outlined in Clarke, the verbal confrontation is protected by the First Amendment. According to eye witness testimony, Plaintiff ******* made no malicious verbal attack on Defendant ******; he merely exercised his right of free speech and freedom of religion to disagree with Chaplain ******'s religious teachings. (Appendix 15 at 616-617; Appendix 16 at 623-626). Retaliation against Plaintiff ******* for exercising this right is a violation of his constitutional rights.
Although Defendant Warden ****** mischaracterizes the confrontation between Defendant ****** and Plaintiff *******, Defendant ****** admits in his affidavit testimony that Plaintiff ******* was transferred because he verbally confronted Defendant Chaplain ******. Through Defendant ******, Defendants retaliated against Plaintiff ******* for exercising his First Amendment rights of free speech and religion. (Defendant*s Appendix 3 at 99-105).
Defendants claim that Plaintiff ******* has no constitutional protection from a transfer within the prison system. Because being transferred is a very traumatic event for an inmate, the courts have recognized that this traumatic event can be used as a retaliatory measure. Although a prisoner enjoys no constitutional right to remain at a particular institution, and although generally the prison officials may transfer a prisoner for whatever reason or no reason at all, a prisoner cannot be transferred in retaliation for the exercise of a constitutional right. Goff v. Burton, 7 F.3d 734, 737 (8th Cir.1993), cert. denied, 512 U.S. 1209 (1994). See also, Goff v. Burton, 91 F.3d 1188 (8th Cir.1996). An action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate. Woods v. Smith, 60 F.3d 1161, 1165, cert denied, 516 U.S. 1084 (1996).
In Rouse v. Benson, 193 F.3d 936 (8th Cir. 1999), the Eighth Circuit reversed a summary judgment and remanded, determining that a fact issue existed regarding whether the inmate*s transfer was motivated by the inmate*s exercise of his free speech and religious rights. The court determined that a reasonable jury could infer that the inmate was transferred in retaliation for his religiously motivated grievances. Id. at 940.
Defendants claim that Plaintiff *******'s transfer was not retaliatory in nature. To refute Defendants* contention, Plaintiff must produce direct evidence of motivation or, the more probable scenario, allege a chronology of events from which retaliation may plausibly be inferred. Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999), citing Woods, 60 F.3d at 1164.
Defendants provide direct evidence of the motivation for the transfer in Defendant ******'s affidavit.
******* and others began a malicious verbal assault against Chaplain ******. Because of this malice against a staff person and the open verbalization of that malice during services conducted by volunteers of 37th Street Church, I felt the situation was becoming a serious threat to the security of the facility. An offender cannot maliciously, verbally attack the administration and/or staff on a facility and influence others, including volunteers to openly defy the authorities responsible for prison operations (that in itself is unacceptable) without creating a serious security issue....Because of my responsibility to the 1300 offenders plus staff on the ****** Unit, and my belief that *******'s presence on the ****** Unit constituted a serious threat to the security and orderly operation of the unit; I requested that the State Classification Committee consider transferring in spite of his having been returned to the unit by Mr. *****. (Defendant*s Appendix 3 at 99-105).
Defendant ****** did not witness the incident and has no personal knowledge of what actually transpired, and eye witness testimony completely contradicts Defendant ******'s depiction of the event in his affidavit as well as his characterization of Plaintiff *******'s character and demeanor. (Appendix 15 at 617; Appendix 16 at 622-626).
Plaintiff ******* can show a chronology of events which infers retaliation. ****** ********, Assistant Director of ************** and *******, states in her affidavit that the policy in place at the time required an offender serving a sentence in excess of thirty years to be housed at a maximum security facility. Plaintiff ******* had been at the ****** Unit in ******, Texas, a minimum security unit, since 1989. During the almost ten years he was at the ****** Unit, he did not have a single disciplinary case written against him. The question is: Why the urgency to transfer Plaintiff ******* within a few days of the incident and within a few hours of the disciplinary hearing when he had been at the ****** unit for almost ten years? If not in retaliation for Plaintiff *******'s exercising his religious and free speech rights, then why?
Based on Defendants* own summary judgment evidence, a fact question exists as to whether Plaintiff ******* was transferred in retaliation for exercising his First Amendment rights of free speech and religion.
E. Defendants Are Not Entitled to Immunity.
Plaintiff ******* is seeking damages against the Defendants who are responsible for his retaliatory transfer in their individual capacities, and they are not entitled to qualified immunity. Plaintiff ******* has shown the violation of a constitutional right that was clearly established at the time of the incident. Woods at 1164. At the time of the incident, the law of the Fifth Circuit and the United States Supreme Court clearly established that an official could not retaliate against an inmate for complaining about an official*s misconduct or for confronting an official. Id.
III.
CONCLUSION
"It is well established that prisoners must be accorded reasonable opportunities to exercise their religious freedom guaranteed by the First Amendment." Cruz, 405 U.S. at 322. When a prison regulation impinges on inmates* constitutional rights, the regulation is valid only if it is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. Defendants have presented no evidence that denying Plaintiffs a one hour worship service each Sunday conducted according to the tenets of faith outlined in Plaintiffs* Original Complaint is reasonably related to any legitimate penological interest. Additionally, fact questions exist as to whether Plaintiff *******'s transfer was retaliatory and whether qualified immunity applies in this case.
WHEREFORE, Plaintiffs pray that summary judgment be denied.
Respectfully Submitted,
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