Appeal from the United States District Court for the Eastern District of Illinois - No. 73 92 E James L. Foreman, Judge.
Hastings, Senior Circuit Judge, and Stevens and Sprecher, Circuit Judges.
Edward Joseph X. Chapman, a prisoner at Marion Federal Penitentiary, brought this pro se civil rights action against various federal prison officials*fn1 as a result of his extended confinement in punitive segregation at the institution. Chapman alleged that his placement in segregation for his refusal to handle pork, motivated by his observance of what he contends is a basic tenet of his Black Muslim religion, during kitchen clean-up duties violated his First Amendment free exercise rights. He further claimed that he was denied procedural due process at the hearing that preceded his segregation and that the resulting segregation for nine months constituted cruel and unusual punishment. Chapman sought, in substance, a mandatory injunction ordering his return to the general prison population, an injunction restraining defendants from interfering with his religious freedom, actual and punitive damages, a declaratory judgment, and a writ of mandamus.*fn2
Chapman's request for the appointment of counsel was denied by District Judge Foreman at the commencement of the one-day hearing held on October 9, 1973. Chapman called two witnesses, James Tippy, a Marion caseworker, and James Culley, who had served on the Adjustment Committee that ordered Chapman placed in segregation. At the close of Culley's testimony, Judge Foreman recessed the case and indicated that he would hear no more testimony. When Chapman protested that he wished to call another witness, Keith X. Ferres, to testify as to the tenets of the Muslim faith, Judge Foreman indicated that Chapman could submit an affidavit instead, but that he, Judge Foreman, would determine whether additional testimony would be necessary.
On December 17, 1973, the district court entered judgment for the defendants, holding Chapman's claim for a mandatory injunction moot because he had been released from segregation on July 23, 1973. The court further concluded that Chapman had failed to prove any of the allegations of his complaint.
On this appeal, Chapman, who is now represented by counsel, argues that the district court erred in the following respects: 1) even though Chapman had been released from segregation, his claim for injunctive relief was not thereby mooted; 2) the district judge abused his discretion in not appointing trial counsel for Chapman; 3) the district court improperly terminated the case prior to the close of Chapman's presentation; 4) Chapman had in fact made out a prima facie case on each of the three alleged constitutional violations; and 5) several evidentiary rulings were erroneous. For the following reasons, we reverse and remand for a new trial.
Insofar as the ruling that Chapman's release from segregation rendered his claim for a mandatory injunction ordering release moot is concerned, the trial judge was clearly correct. We do not read his order as holding that Chapman's release mooted his claims for monetary, declaratory, or prohibitory injunctive relief.*fn3 The release could not have had those effects; the recovery of damages for the alleged violations of his constitutional rights does not turn on his continued presence in segregation.*fn4 Nor would his release render moot his request for a declaratory judgment that the acts of these prison officials were unconstitutional, for an injunction prohibiting further such actions, and for further appropriate relief, including the expurgation of his prison record. As long as Chapman remains at Marion, and as long as he may again be required to handle pork, or may again go before the Adjustment Committee, the possibility of the reoccurrence of these issues satisfies the "actual controversy" requirement of the Declaratory Judgments Act, 28 U.S.C. § 2201, and the "case or controversy" requirement of Article III.*fn5
In addition, Chapman's complaint was drafted as a class action, brought on behalf of all Black Muslims at Marion, some of whom, he alleges, are in segregation as a result of the same First Amendment violations of which Chapman complains. Judge Foreman failed to conduct the investigation and make the findings of the appropriateness of the class action required by Fed. R. Civ. P. 23(c). If Chapman's contentions of a uniform institutional policy applying to all Black Muslims are correct, this is another compelling reason for finding that the case is not moot and deciding these questions at this time. See Workman v. Mitchell, 502 F.2d 1201, 1207-1208 (9th Cir. 1974).
Chapman next argues that the trial judge abused his discretion in not granting Chapman's motion for appointment of counsel, once it became clear that he had a reasonable chance of succeeding in this action. Without determining whether Judge Foreman abused his discretion in this case, we have concluded that on remand it would be appropriate for Chapman to have the assistance of counsel. A staff attorney of the Northwestern Legal Assistance Clinic, which represented Chapman before us, has indicated both the willingness and the financial capacity to continue this representation. Since she has already demonstrated her competence and familiarity with the record, we direct the trial judge to make the necessary request pursuant to 28 U.S.C. § 1915(d).*fn6
After Chapman had completed his examination of his first two witnesses, the trial judge stated:
"The Court will continue this matter generally at this time. I'll take the matter under advisement with regard to the evidence that is presented and with regard to the other matters that are to be submitted to me and I'll make a ruling as to whether or not, in my opinion, additional evidence is needed. ...