The opinion of the court was delivered by: Foreman, District Judge:
The two named petitioners, Billie Austin X. (Bryant) and
Keith X. Farries, originally filed their "Petition for Writ of
Mandamus, Declaratory or Other Injunctive Relief, or in the
Alternative, Writ of Habeas Corpus," on behalf of the
brotherhood of the nation of Islam at the Federal Penitentiary
at Marion, Illinois, in the United States District Court for
the District of Columbia. The cause was transferred to this
Court because the Penitentiary is located within the Eastern
District of Illinois, and the Court will consider the matter
as a class action.
Petitioners contend the respondent has been discriminatory
against the Muslim Religion of Islam in that (1) the prison
serves a diet consisting of approximately three-fourths pork,
and pork is forbidden the Muslims; (2) on several occasions
office space and equipment has been refused the Muslims; (3)
respondent has refused to pay a Muslim minister while paying
ministers of other religions; and (4) Muslims have not been
allowed equal time with other religions over the institutional
The respondent, the Director of U.S. Bureau of Prisons, has
filed a Motion to Dismiss alleging (1) the prison is under no
obligation to supply a special religious diet when nourishment
can be obtained from other foods; (2) denial of office space
was not a result of any official sanction against petitioners'
religion but due to a lack of space, and further, Muslims are
allowed ample use of chapel facilities; (3) no recognized
Muslim minister qualified to receive compensation has been
available, and this point may become moot since the prison
officials have, since the filing of petitioners' petition,
been in contact with a Muslim minister with a view towards
him minister to the Muslims; and finally (4) petitioners do
not allege no access to the prison radio but merely failure to
have equal time with Catholic, Jewish, and Protestant
religions; further, petitioners have access to commercial
radio, and to tapes of broadcasts and lectures.
Thereafter, on October 18, 1972, petitioners filed a
pleading entitled "A Writ of Mandamus or in the Alternative,
A Writ of Addendum to Petition Civil No. 72-60." The
respondent has answered alleging that mandamus is improper in
this case and the amendment or addendum to the original
pleading is improperly and untimely made, and petitioners have
filed a pleading opposing respondent's answer.
In both pleadings petitioners seek a Writ of Mandamus under
28 U.S.C. § 1361 alleging violations of constitutional rights.
Mandamus, historically, is an extraordinary remedy to be
granted only in the exercise of sound judicial discretion.
Ordinarily it must be shown that petitioner has a clear right
to the relief sought, that respondent has a clear duty to
perform the act requested, and no other adequate remedy is
available. Carter v. Seamans, 411 F.2d 767 (5th Cir., 1969);
Yahr v. Resor, 339 F. Supp. 964 (E.D.N.C., 1972). The claim must
be clear and certain, the duty of the officer involved must be
ministerial and plainly defined. Prairie Band of Pottawatomie
Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir., 1966).
Normally acts of discretion are not subject to mandamus.
Furthermore, a court should have the benefit of some specific
statutes or regulations against which to measure the duties
asserted to have been ignored by the respondents. Petitioners,
here, as in Fifth Avenue Peace Parade Committee v. Hoover,
327 F. Supp. 238 (S.D.N.Y., 1971), merely assert that respondents
have a duty not to violate their constitutional rights. I agree
with the court's ruling in Fifth Avenue Peace Parade Committee
to the effect that mere assertions of violations of
constitutional rights do not bring petitioners within the
purview of federal jurisdiction contemplated by 28 U.S.C. § 1361.
Fifth Avenue Peace Parade Committee v. Hoover, supra at
page 243. Accordingly, this Court finds that mandamus is not a
proper remedy and the petition, insofar as it seeks such a
writ, is denied.
Nor does this appear to be a proper situation for habeas
corpus. The traditional function of the writ of habeas is to
secure release or relief from illegal custody. Preiser v.
Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
Petitioners do not challenge the legality of their custody,
accordingly habeas corpus is not the proper remedy.
However, the petitioners also ask for injunctive relief and
what they term "relief in the alternative." The Court will
therefore examine the petition and addendum thereto to
determine if a justiciable cause of action exists under
28 U.S.C. § 1331(a).
All of petitioners' claims and allegations pertain to
alleged religious persecution or discrimination against the
Muslims at Marion. It is not disputed that lawful
incarceration brings about a withdrawal or curtailment of many
privileges and rights, including the completely unfettered
exercise of religious beliefs and practices. Cooper v. Pate,
382 F.2d 518 (7th Cir., 1967); Price v. Johnston,
334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. However, a court should
examine administrative action involving constitutional claims
of prisoners pertaining to racial or religious discrimination
to determine whether the rules and regulations imposed which
result in limitations are justifiable and reasonable in the
administration of a large population, maintenance of
discipline, and control of any dangers or hazards presented.
Walker v. Blackwell, 411 F.2d 23 (5th Cir., 1969).
Petitioners are not required to eat pork. They are free to
choose the foods and to refrain from eating pork. The prison
is not required to provide a special diet to satisfy
petitioners' religious beliefs where, as is apparent here,
sufficient nourishment can be obtained from the other food
available. Abernathy v. Cunningham, 393 F.2d 775 (4th Cir.,
1968). (See also Walker v. Blackwell, 411 F.2d 23 (5th Cir.,
1969), where the court recognized the difficulties of serving
after sunset meals for Black Muslims and the added expense of
purchasing and preparing pork-free meals when the prisoners
could sustain themselves, without eating essence of swine, on
the prison's regular menu.)
Petitioners' second allegation of discriminatory religious
practice involves the allocation of office space to the
Muslims on several occasions. According to the affidavit of
the senior Chaplain at Marion, Muslims are allowed to store
their supplies and equipment in the Chaplain's office, and
this is a practice consistent with that afforded other
religious groups. Petitioners have not alleged in what manner
this alleged discriminatory practice, which is controverted by
the affidavit and motion, deprives them of their freedom to
worship nor have they shown or alleged facts sufficient to
show a prison policy of discrimination on the basis of
Thirdly, petitioners contend the respondent has refused to
pay Muslim ministers. The affidavit of the senior Chaplain
shows that there are two full-time paid ministers on the
staff, a Roman Catholic priest and a Protestant minister. They
are hired because they represent the faiths of the largest
percentages of the inmate population. A Jewish Rabbi is
contracted for and paid per visit to the penitentiary. The
prison officials are willing to contract with a recognized
Muslim minister. In view of these assertions, petitioner has
again failed to state a valid constitutional claim or show or
allege a wilful discriminatory practice.
Petitioners' final contention in their original petition is
that they have not been allowed equal time on the
institutional radio to air their religious beliefs. They do
not contend they are denied access to the radio. Rather, their
complaint is that they are not allowed equal time. In ...