United States District Court, Central District of Illinois
April 18, 1980
EDWARD JOSEPH X. CHAPMAN, PLAINTIFF,
GEORGE PICKETT ET AL., DEFENDANTS.
The opinion of the court was delivered by: Baker, District Judge.
This is a civil rights action arising under 42 U.S.C. § 1983
concerning the First and Eighth Amendment rights of a Black
Muslim prisoner who was placed in segregation for some 91/2
months following his refusal on religious grounds to handle
pork during a kitchen clean-up detail.
The case is here on its second remand. Chapman v. Pickett,
586 F.2d 22 (7th Cir. 1978) (Chapman II); Chapman v.
Kleindienst, 507 F.2d 1246 (7th Cir. 1974) (Chapman I).
The facts of the case to this point are set forth in
Edward Joseph X. Chapman was a prisoner in the
federal penitentiary at Leavenworth, Kansas,
when, on October 4, 1972, he was transferred to
the Marion, Illinois, penitentiary. On October 9
Chapman was assigned to the kitchen detail, which
assignment included transporting food carts and
clearing food off of them. When Chapman
discovered that the food trays in the carts
contained pork, he went to his supervisor,
defendant J.E. Brown, and informed him that
because of the beliefs of his Black Muslim faith,
he could not handle the pork on the trays.
According to his testimony at trial, Brown then
offered Chapman the use of either gloves or
various kitchen utensils to enable him to
complete the task. While Chapman at trial denied
that he was offered these, he did acknowledge
that, regardless of such an offer, he would still
have refused to do the work, since even indirect
touching was forbidden. Brown then advised
Chapman that he would be forced to write a
disciplinary report on Chapman if the task were
not performed. Chapman responded by saying that
the last man who had written a report on him
concerning an incident of this nature had been
"blown out of an oven" at Leavenworth just two
After the incident Brown filed a report
charging Chapman with violating Prison Code § 303,
"Failing to perform work as instructed by a
supervisor." His report also mentioned the
Leavenworth remark. An investigative report,
completed the day of the incident by another
official and sent to the prison's Adjustment
Committee, stated that "Chapman had a very good
attitude." It noted that "apparently through
Chapman's efforts someone had removed the pork from
the cart and Chapman had finished cleaning the
On October 11 the Adjustment Committee, which
included defendants Jack Culley, Earl Buzzard,
and E.M. Cage, met to consider Brown's report.
Chapman was present and, upon having the report
read to him admitted the facts of the incident,
again explaining that his refusal was the result
of his Black Muslim beliefs. The Committee
decided to punish Chapman by placing him in the
segregation unit for an indeterminate term.
Chapman's status in segregated confinement was
reviewed periodically. At least once during this
confinement Chapman sought a formal explanation
of his confinement from defendant George Pickett,
warden at Marion, and requested immediate
release. No reply from Pickett
was received. During Chapman's confinement on
March 15, 1973, Pickett received a copy of a
letter dated March 9, 1973, from the Director of
the Federal Bureau of Prisons, Norman A. Carlson,
in which the Director stated to Congressman
Charles Rangel that "[w]e have reexamined the
situation and have communicated to the heads of
our facilities instructions not to assign
individuals to the details where they must work
with pork if it is against the religious beliefs
of those men." Chapman was not returned to the
general prison population, however, until July
586 F.2d at 24.
The procedural history of the case is somewhat lengthy.
Chapman brought suit for injunctive and declaratory relief and
for damages alleging (1) violation of his First Amendment
right to free exercise of religion, (2) denial of procedural
due process at the disciplinary hearing which preceded his
segregation, and (3) cruel and unusual punishment in violation
of the Eighth Amendment by assignment to segregation for over
nine months. In the first trial, the district court, after
hearing testimony from two witnesses, refused to hear further
evidence. Thereafter, the court entered judgment for the
defendants on the grounds that Chapman had failed to prove any
of the allegations in his complaint and that his claim for a
mandatory injunction was moot since he had already been
released from segregation.
On appeal, the Court of Appeals affirmed the denial of a
mandatory injunction ordering release but reversed the
dismissal of the claims for damages and for declaratory and
prohibitive injunctive relief as well as "further appropriate
relief, including the expurgation of his prison record." 507
F.2d at 1249. The reviewing court further held (1) that the
facts made out a prima facie case of a First Amendment
violation, (2) that the trial court had erred in terminating
testimony, (3) that the plaintiff had not been denied
procedural due process. The appellate court made no rulings on
the Eighth Amendment claim due to the inadequacy of the record.
The case was remanded for a new trial.
At retrial, the district court never reached the merits of
plaintiff's First Amendment claim. The court found that the
defendants had a qualified official immunity from liability
for damages under the First Amendment and that the plaintiff's
request for injunctive and declaratory relief was mooted by
his release on parole and by the new policy adopted by the
Federal Bureau of Prisons exempting Black Muslims from
handling pork. The trial court also found that the plaintiff's
confinement was disproportionate to his offense after May 5,
1973, and violated the Eighth Amendment, but ruled that the
plaintiff was not entitled to money damages because he had
failed to prove actual damages.
On appeal the second time, the Court of Appeals affirmed the
district court's finding of qualified immunity on the First
Amendment issue. It also affirmed the district court's finding
that the plaintiff's request for declaratory and injunctive
relief against future infringement of his religious beliefs
was moot, but ruled that a request for an injunction against
future use of the plaintiff's punishment record was not moot.
The appellate court also affirmed the district court's finding
of an Eighth Amendment violation, but reversed the ruling as
to the date of the violation and the plaintiff's entitlement
to damages. The case was again remanded.
The issues remanded by the Court of Appeals are:
(1) Whether Chapman's First Amendment right to free exercise
of religion was violated and, if so, whether the record of his
punishment should be expunged.
(2) The date the Eighth Amendment violation began.
(3) What damages Chapman is entitled to receive as a result
of the Eighth Amendment violation.
On January 25, 1980, this court conducted an evidentiary
hearing to determine the additional facts necessary to carry
out the Court of Appeals' mandate. From the testimony
presented, the court makes the following additional findings:
(1) On October 11, 1972, Chapman was initially assigned to
"short-term segregation" status, where he remained for some 2
to 3 months before being reassigned to "long-term segregation"
or "control" status.
(2) Chapman was returned to "short-term segregation" status
in June, 1973, and returned to the general prison population
on July 25, 1973.
(3) While he was in "short-term segregation," the Adjustment
Committee reviewed Chapman's assignment approximately every 10
(4) During the time he was assigned to "control" status, he
was reviewed by the Control Unit Committee approximately every
(5) Chapman's assignment to segregation did not alter the
physical conditions of his confinement. He had the same type
of cell and food. He had books but could not go to the
library. He had the opportunity to work. He had some physical
exercise but could not go to the regular prison recreation
(6) Chapman refused to handle pork because he believed that
to do so would contravene the teachings of Elijah Muhammed and
the principles of the Black Muslim religion of which Chapman
was an adherent.
(7) The climate at Marion during the period of Chapman's
segregation was one of extreme stress and tension due to work
strikes and other inmate activities.
(8) Chapman had a history of disciplinary problems in the
federal prison system, although the only charge of a violent
nature was rescinded.
FIRST AMENDMENT ISSUE
The court must first determine whether punishing Chapman for
refusing to follow a supervisor's order violates the First
Amendment where the order was to handle pork and where Chapman
informed the supervisor that it was against his religious
beliefs as a Black Muslim to handle the pork. So far as this
court can determine, this specific issue is of first
Historically, the courts declined to interfere with the
administrative decisions of prison officials. Evans v. Moseley,
455 F.2d 1084 (10th Cir. 1972) cert. denied 409 U.S. 889, 93
S.Ct. 160, 34 L.Ed.2d 146 (1977). This "hands-off doctrine",
however, is slowly being replaced by the view that prisoners
retain their fundamental constitutional rights, albeit subject
to limitations, after incarceration.
Federal courts sit not to supervise prisons but
to enforce the constitutional rights of all
"persons," including prisoners. We are not
unmindful that prison officials must be accorded
latitude in administration of prison affairs, and
that prisoners necessarily are subject to
appropriate rules and regulations but persons in
prison, like other individuals, have the right to
petition the Government for redress of grievances
which, of course, includes "access of prisoners
to the courts for the purpose of presenting their
Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263
(1972) (per curiam).
Free exercise of religion is among those rights retained by
the incarcerated. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733,
12 L.Ed.2d 1030 (1964). The growth of the Black Muslim religion
in particular has created increasing conflict within the
prisons and has forced the courts to focus on the permissible
scope of restrictions on prisoners' religious rights. Wilson v.
Prasse, 463 F.2d 109 (3rd Cir. 1972); Barnett v. Rodgers,
410 F.2d 995 (D.C. Cir. 1969); Cooper v. Pate, 382 F.2d 518 (7th
The cases have involved refusal by prison officials to
recognize the Black Muslim faith as a religion, Bryant v.
McGinnis, 463 F. Supp. 373 (W.D.N.Y. 1978); denial of access to
Black Muslim religious literature, group worship services and
correspondence with spiritual leaders and refusal of requests
for special diet, Wilson v. Prasse, supra; Walker v. Blackwell,
411 F.2d 23 (5th Cir. 1969); Barnett v. Rodgers, supra; Cooper
v. Pate, supra; Bryant v. McGinnis, 463 F. Supp. 373 (W.D.N Y
1978); Cochran v. Rowe, 438 F. Supp. 566 (N.D.Ill. 1977);
and punishment for prisoner use of Muslim names, Masjid
Muhammad — D.C.C. v. Keve, D.C., 479 F. Supp. 1311 (D.Del.
The courts, however, have developed no uniform test for
determining when a prisoner's First Amendment rights have been
violated. At best, they conduct a precarious balancing between
free exercise of religion and the prison's interest in
security, orderliness and administrative efficiency and
convenience. Comment, The Religious Rights of the Incarcerated,
125 U.Pa.L.Rev. 812 (1977).
Some courts have held that the proper test for determining
the validity of prison rules and regulations restricting
practice of the Muslim religion is whether such rules are
"unreasonable and unjustified with respect to the need of
prison restraints and discipline." Wilson v. Prasse, supra.
Other courts require the government to show a compelling state
interest to justify the restrictions on Islamic or any other
religious activities plus a showing that the alleged
restrictions are the least restrictive means necessary to
protect that interest. Walker v. Blackwell, supra; Barnett v.
Rodgers, supra; Cochran v. Rowe, supra.
The Seventh Circuit, in Cooper v. Pate, supra, its leading
decision in this area, states:
It is clear that prison authorities must not
punish a prisoner nor discriminate against him on
account of his religious faith. But although a
prisoner retains his complete freedom of
religious belief, his conviction and sentence
have subjected him to some curtailment of his
freedom to exercise his beliefs.
Courts will closely scrutinize the
reasonableness of any restriction imposed on a
prisoner's activity in the exercise of his
religion, and specially so where the adherents of
one faith are more heavily restricted than the
adherents of another.
382 F.2d at 521.
Proof which would be more than adequate support
for administrative decision in most fields does
not necessarily suffice when we are dealing with
the constitutional guaranty of freedom of
religion, and with an exercise of religion so
widely considered essential as worship services.
382 F.2d at 522.
Thus, the Seventh Circuit has not yet adopted a definitive
analysis for this court to follow in determining when a
prisoner's religious rights have been violated. This court,
being mindful that First Amendment rights have a "preferred"
status, Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276,
90 L.Ed. 265 (1946), has determined that the following analysis
should apply in this case. First, the plaintiff must
demonstrate that a legitimate religious practice is being
unduly limited by prison regulations. Second, the burden of
proof shifts to the government to show that the inference
arises from a compelling state interest in prison security,
discipline or administration and that it is among the least
restrictive means reasonably available to prison
officials.*fn1 Barnett v. Rodgers, supra; See Comment,
Prisoners' Rights: Restrictions on Religious Practices, 42
U.Colo.L.Rev. 387 (1970).
The plaintiff contends that he was punished for his refusal
to follow an order to handle pork. The plaintiff has testified
that the handling of pork is forbidden by his Islamic religion
and that Elijah Muhammad taught Black Muslims not to touch
pork. The government has made much of the fact that the
Islamic Bible, the Holy Koran, expressly forbids only the
eating of pork and that one of the teachings upon which the
plaintiff relies in his refusal to touch pork is the book
How Ye to Live which was not published until 1972.
To be protected, a particular form of religious
expression need not be mandated by one's religion
or even endorsed by a majority of its adherents,
so long as it is an expression of a sincere,
religiously based, conviction.
Masjid Muhammad — D.C.C. v. Keve, supra. This court concludes
that the plaintiff's refusal to handle pork was an expression
of a sincere, religiously based, conviction and qualifies as a
legitimate religious practice.
The government has failed to sustain its burden of proving
the requisite state interest in prison security, discipline or
administration. The testimony has revealed no threat to prison
security. In fact, the evidence has shown that the plaintiff
completed his work detail after the pork had been removed by
another prisoner and returned to kitchen detail with a
different work assignment the following two days without
incident. His disciplinary report revealed that Chapman "had
a good attitude." Chapman's refusal to handle the pork created
no substantial interference with prison administration. Of the
approximately 500 prisoners at Marion in 1972-73, only some 20
were Black Muslims. It is a fair inference that not all Black
Muslims worked in the kitchen. It placed no financial burden
on the prison to switch the plaintiff's work assignment, and
there was certainly minimal, if any, effect on administrative
efficiency. In Barnett v. Rodgers, supra, the court described
the plaintiffs' request for one pork-free meal a day as:
essentially a plea for a modest degree of
official deference to their religious
obligations. Certainly if this concession is
feasible from the standpoint of prison
management, it represents the bare minimum that
jail authorities, with or without specific
request, are constitutionally required to do, not
only for Muslims but indeed for any group of
inmates with religious restrictions on diet.
410 F.2d at 1001.
Assigning Chapman to a work detail in which he did not have
to handle pork is substantially less burdensome to prison
officials than the preparation of a pork-free meal in
Barnett. This court concludes that the plaintiff's First
Amendment right to free exercise of religion was violated by
his punishment for refusal to follow an order to handle pork.
The report of the incident and the disciplinary action taken
against the plaintiff should be expunged from his records, and
an injunction shall issue forbidding further use of such
EIGHTH AMENDMENT ISSUE
While Chapman II directed this court to determine when
Chapman's period of segregation became disproportionate to his
offense, without giving consideration to the threatening remark
made by Chapman to Brown, the prison guard, 586 F.2d at 28,
n.4, but cf. Wolff v. McDonnell, 418 U.S. 539, 573, 94 S.Ct.
2963, 2983, 41 L.Ed.2d 935 (1974) and Chapman I, 507 F.2d at
1252, it now appears that recent developments in the law may
further prolong this already protracted litigation. Subsequent
to the issuance of the mandate in Chapman II, and following the
third evidentiary hearing in this court, and while the matter
was under consideration, the United States Supreme Court issued
its decision in Rummel v. Estelle [Texas Department of
Corrections] ___ U.S. ___, 100 S.Ct. 1133, 63 L.Ed.2d 382
(1980). That decision dealing with disproportionality of
offense and period of imprisonment collides with the mandate of
Chapman II and requires a total reconsideration of the Eighth
Amendment issue in this case.
The Supreme Court in Rummel held that the sentence of life
imprisonment imposed upon a petitioner who was convicted of his
third felony, obtaining $120.75 by false pretenses, did not
constitute cruel and unusual
punishment under the Eighth and Fourteenth Amendments. The
petitioner, who had been convicted in the Texas courts of two
prior non-violent felonies (fraudulent use of a credit card to
obtain $80 worth of goods or services and passing a forged
check for $28.36), was sentenced to a mandatory life term
under the Texas recidivist statute. He sought a writ of habeas
corpus claiming that his life sentence was so disproportionate
to the crimes he had committed as to violate the cruel and
unusual punishment prohibition of the Eighth Amendment.
In denying Rummel's petition, the Supreme Court
distinguished cases involving capital punishment:
Because a sentence of death differs in kind from
any sentence of imprisonment, no matter how long,
our decisions applying to prohibition of cruel
and unusual punishments to capital cases are of
limited assistance in deciding the
constitutionality of the punishment meted out to
___ U.S. at ___, 100 S.Ct. at 1138.
The court also limited the application of Weems v. United
States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), a case
arising in the Philippine Islands in which the Court held the
punishment of cadena temporal to be disproportionate to the
offense of falsifying a public record. Cadena temporal involved
"confinement in a penal institution for twelve years and one
day, a chain at the ankle and wrist of the offender, hard and
painful labor, no assistance from friend or relative, no
marital authority or parental rights or rights of property, no
participation even in the family council." ___ U.S. at ___, 100
S.Ct. at 1138-39. Even after confinement, the prisoner "goes
from them to a perpetual limitation of his liberty." Id.
The Supreme Court stated:
Given the unique nature of the punishments
considered in Weems and in the death-penalty cases,
one could argue without fear of contradiction by
any decision of this Court that for crimes
concededly classified and classifiable as felonies,
that is, as punishable by significant terms of
imprisonment in a state penitentiary, the length of
the sentence actually imposed is purely a matter of
legislative prerogative. Only six years after
Weems, for example, Mr. Justice Holmes wrote for a
unanimous Court in brushing aside a proportionality
challenge to concurrent sentences of five years
imprisonment and cumulative fines of $1,000 on each
of seven counts of mail fraud. See Badders v.
United States, 240 U.S. 391 [36 S.Ct. 367, 60 L.Ed.
706] (1916). According to the Court, there was
simply "no ground for declaring the punishment
unconstitutional." Id., at 394 [36 S.Ct., at 368].
Such reluctance to review legislatively
mandated terms of imprisonment is implicit in our
more recent decisions as well. As was noted by
Mr. Justice WHITE, writing for the plurality in
Coker v. Georgia, supra [433 U.S. 584] at 592 [97
S.Ct. 2861 at 2866, 53 L.Ed.2d 982], our Court's
"Eighth Amendment judgments should not be, or
appear to be, merely the subjective views of
individual Justices; judgments should be informed
by objective factors to the maximum possible
extent." Since Coker involved the imposition of
capital punishment for the rape of an adult female,
this Court could draw a "bright line" between the
punishment of death and the various other
permutations and commutations of punishments short
of that ultimate sanction. For the reasons stated
by Mr. Justice STEWART in Furman, ante
[408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346], this line was
considerably clearer than would be any
constitutional distinction between one term of
years and a shorter or longer term of years.
Similarly, in Weems the Court could differentiate
in an objective fashion between the highly unusual
cadena temporal and more traditional forms of
imprisonment imposed under the Anglo-Saxon system.
But a more extensive intrusion into the basic
line-drawing process that is pre-eminently the
province of the legislature when it makes an act
be difficult to square with the view expressed in
Coker that the Court's Eighth Amendment judgments
would neither be nor appear to be merely the
subjective views of individual Justices.
This court reads Rummel as disapproving the application of
disproportionality tests in cases arising under the Eighth
Amendment except in capital or other factually unique cases. As
the court found in Rummel, the judiciary is ill equipped to
make any kind of objective constitutional distinction between
one term of years and a shorter or longer sentence.
The Supreme Court's rationale is equally applicable in the
context of prisons. This court lacks expertise in prison
administration and any judgment it can make as to the
disproportionality of giving a prisoner a certain term in
segregation for infraction of disciplinary regulations can
only be the most blatant exercise of subjectivity on the part
of the court.
At the January 25, 1980, hearing in this court, prison
officials testified that segregation is not for punishment
purposes. Its purpose, according to the testimony, is to help
protect the rights of other inmates, help operate the
institution in an orderly fashion, and help protect the
individual in control. It is precisely these auxiliary
interests which, under the rationale of Rummel, should be left
largely within the discretion of prison disciplinary officials
and administrative regulations.
In Rummel, the Supreme Court discussed the purpose of the
recidivist statute there in question:
Its primary goals are to deter repeat offenders
and, at some point in the life of one who
repeatedly commits criminal offenses serious
enough to be punished as felonies, to segregate
that person from the rest of society for an
extended period of time. This segregation and its
duration are based not merely on that person's
most recent offense but also on the propensities
he has demonstrated over a period of time during
which he has been convicted of and sentenced for
other crimes. Like the line dividing felony theft
from petty larceny, the point at which a
recidivist will be deemed to have demonstrated
the necessary propensities and the amount of time
that the recidivist will be isolated from society
are matters largely within the discretion of the
By analogy, these are the same concerns which apply in the
context of prison discipline.
In light of Rummel, this court holds that Chapman's length of
stay in segregation did not work a violation of his rights
under the Eighth Amendment to be free from cruel and unusual
IT IS THEREFORE ORDERED AND ADJUDGED that any report of the
incident of October 9, 1972, at Marion Federal Penitentiary in
which the plaintiff refused to handle pork and the resulting
disciplinary proceedings and confinement to segregation be
expunged from the plaintiff's record in the Bureau of Prisons.
IT IS FURTHER ORDERED that the defendants and each of them
be, and they hereby are, enjoined from any further reference
to or use of the subjects expunged from the plaintiff's
IT IS FURTHER ORDERED that the plaintiff take nothing and
the defendants go hence without day.