group and has not allowed group meetings.
During 1992 the plaintiff was sent publications from or about
the CJCC and related organizations. These publications were
rejected by Hill's publications review committee, which
consisted of defendants Harriette McDonald, Diane Rockett and
Marion Yeazle and were not given to the plaintiff. That
decision was approved by Warden Gilmore. The disapproved
publications were sent to the IDOC publications review
committee, where they were reviewed by defendant James Simmons,
who approved the Hill committee's decision to reject the
In August 1993, the plaintiff was transferred to Pontiac
Correctional Center, where he is housed today. He alleges that
officials at Pontiac have similarly refused to recognize the
CJCC, but he has not named any Pontiac officials as defendants
in this lawsuit.
The plaintiff makes two claims to this court. First, the
plaintiff claims that his first amendment rights to free
exercise of religion and his fourteenth amendment rights to
equal protection of the laws have been violated by Hill's
refusal to recognize the CJCC as a religious group; and second,
that his first amendment rights to free speech and free
exercise of his religion have been violated by the rejection of
CJCC and related publications. The plaintiff argues that the
free exercise claims must be analyzed under the Religious
Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb. The
plaintiff sues Andrist, Brown, Gilmore, McDonald, Rockett,
Yeazle and Simmons in their official and individual capacities.
He sues Odie Washington, the current director of the IDOC in
his official capacity only.
The defendants argue that they are entitled to qualified
immunity on all of the plaintiff's claims; that under the
applicable legal standards their actions regarding the
plaintiff's claims were justified; and, that the RFRA is
unconstitutional and should not apply to this case.
1. FREE EXERCISE OF RELIGION
The plaintiff claims that defendants Andrist, Brown and
Gilmore have violated his free exercise rights by denying him
access to group religious services in the prison and by
refusing to allow him to re-designate his religious preference.
He claims that defendants McDonald, Rockett, Yeazle, Simmons
and Washington have violated his free exercise rights by
denying him access to religious publications in the prison.
2. QUALIFIED IMMUNITY
A government official who, while acting under color of state
law, deprives an individual of constitutionally protected
rights may be subject to personal liability for civil damages
under 42 U.S.C. § 1983. However, "the defense of qualified
immunity shields government officials performing discretionary
functions `from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Marshall v. Allen, 984 F.2d 787, 791 (7th. Cir. 1993)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982)). Courts require officials to
adhere to rules that have been made specific enough to set
operational guidelines. The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he or she is doing violates that right. Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d
It is not enough to state the general principle that
officials may not infringe on the plaintiff's free exercise of
his religion; the specific activity involved must be unlawful
in the light of pre-existing law. Ibid. Principles of immunity
stem from the belief that the law should develop in injunctive
actions or damages actions against public bodies rather than at
personal expense. Greenberg v. Kmetko, 922 F.2d 382, 384 (7th.
The qualified immunity determination is a legal question for
the court to decide, and is not to be answered in the abstract,
but rather with reference to the particular facts
of the case, Rakovich v. Wade, 850 F.2d 1180, 1201-02 (7th.
Cir.) (en banc); cert. denied 488 U.S. 968, 109 S.Ct. 497, 102
L.Ed.2d 534 (1988).
When a defendant raises the defense of qualified immunity,
the court engages in a two-part, objective inquiry: the court
must determine (1) whether the plaintiff has asserted a
violation of a federal constitutional right, and (2) whether
the constitutional standards implicated were clearly
established at the time in question. Kernats v. O'Sullivan,
35 F.3d 1171, 1176 (7th. Cir. 1994). The burden is on the
plaintiff to prove that the asserted right was clearly
established at the time of the alleged violation, Rakovich v.
Wade, 850 F.2d at 1209.
It is well-established that prisoners "do not forfeit all
constitutional protections by reason of their conviction and
confinement to prison." O'Lone v. Estate of Shabazz,
482 U.S. 342, 347, 107 S.Ct. 2400, 2403, 96 L.Ed.2d 282 (1987) (quoting
Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60
L.Ed.2d 447 (1979)). Among the protections retained by prison
inmates are those afforded by the first amendment, including
the free exercise clause. Id. Therefore, the plaintiff has met
part one of the Kernats test.
As to part two, the plaintiff argues that his right to free
exercise of the CJCC religion were "clearly established" in
1992 based on two out-of-circuit cases, Wiggins v. Sargent,
753 F.2d 663 (8th. Cir. 1985) and McCabe v. Arave, 827 F.2d 634
(9th. Cir. 1987). Neither of these cases stand for the
proposition argued by the plaintiff.
In Wiggins the District Court had dismissed the plaintiffs
free exercise claim, finding that the CJCC was not a religion.
The Appellate Court reversed and remanded, finding that the
District Court had applied the wrong standard for analyzing the
plaintiffs religious claim. It remanded the case for further
findings, which are not reported. In McCabe, the District Court
had assumed that CJCC was a bona fide religion, without making
any factual analysis. The Appellate Court accepted that finding
without further analysis.
The parties have not cited any case from the Seventh Circuit
or its district courts that establishes that the CJCC is a
bona fide religion, and the court has found none. The facts
before the court present a case of first impression in this
The Seventh Circuit Court of Appeals has stated that in
almost any case of first impression, defendants are entitled to
qualified immunity from money damages, Greenberg v. Kmetko,
922 F.2d 382, 385 (7th. Cir. 1991) (Cudahy, concurring).
To establish a free exercise claim the plaintiff must make a
factual showing that: (1) he espouses a bona fide religion; (2)
his beliefs are sincerely held; and (3) the desired activity is
essential to the practice of his religion. Wisconsin v. Yoder,
406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Only after
this initial burden is met does the court inquire into the
state's intrusion and a standard of review.
After an extensive review of published legal opinions, the
court has found no federal or state court that has recognized
the CJCC as a bona fide religion after a factual analysis. This
finding is essential to the plaintiffs free exercise case under
the Kernats qualified immunity test.
I find that in 1992 it was not clearly established that the
CJCC was a bona fide religion entitled to first amendment
protection. Indeed, I find that the question remains unsettled
in 1995. Accordingly, the defendants are entitled to qualified
immunity from personal liability and from money damages on all
aspects of the plaintiffs free exercise claim.
All of the defendants except James Simmons and Odie
Washington are employees of Hill Correctional Center. The
plaintiff's complaint is limited to activities at Hill during
1992 and 1993. In August 1993 the plaintiff was transferred to
Pontiac Correctional Center, where he is housed today.
In light of the court's ruling on qualified immunity, does
the plaintiff have a case or controversy on his free exercise
claims with any of the defendants? Put another
way, would any injunctive relief this court might direct to any
of the defendants benefit the plaintiff in any way? I find that
the answer to both questions is "no", resulting in a finding
that the equitable claims against the Hill defendants are moot.
The record shows that the decision to recognize any religious
group is made by each institution based on all of the
circumstances at that institution. There is no IDOC involvement
in the decision. It is one for the chaplain and the wardens of
each facility. Therefore, only the Hill defendants could be
ordered to re-assess the plaintiff's claims regarding religious
services. However, the plaintiff is no longer at Hill, he is at
Pontiac. If the court ordered the defendants to reassess the
plaintiffs requests or to recognize his religious beliefs, it
would not benefit the plaintiff, since such a ruling could
affect only the decisions at Hill.
Similarly, any order to re-evaluate the plaintiff's religious
claims regarding receipt of publications would affect only the
Hill publications defendants, and defendant Simmons is no
longer in a position to review publications at IDOC.
The plaintiff argues that these claims are not moot because
the plaintiff might be transferred back to Hill. There is
nothing in the record to support that assertion. In order to
meet the "capable of repetition yet evading review" test, the
record must show a demonstrated probability that the same party
will again be subject to the challenged action, Martin v.
Davies, 917 F.2d 336, 339 (7th. Cir. 1990) (quoting Weinstein
v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d
350 (1975)); see also, Moore v. Thieret, 862 F.2d 148, 149-50
(7th. Cir. 1988). There are twenty-three institutions for adult
men in the IDOC. there is no "probability" that the plaintiff
will be transferred to Hill, especially in light of his
disciplinary problems there that prompted his transfer to
Accordingly, I find that there are no disputed material facts
relating to the plaintiff's free exercise claim, and that all
of the defendants are entitled to judgment as a matter of law.
4. EQUAL PROTECTION
The plaintiff claims that the treatment of his religious
requests violated the equal protection clause because other
similar inmate groups, such as the Nation of Islam and the
Moorish Temple, are allowed to have group services and access
to religious publications.
I find that this claim must fail because of the above
analysis of qualified immunity and mootness.
It is unclear from the complaint whether the plaintiff bases
any of his claims on the denial of his grievances. The denial
of his grievances is pleaded in the second amended complaint
and the grievance procedure was discussed at length in several
of the defendants' depositions.
If the plaintiff is attempting to state such a claim, it must
fail. In Illinois there is no constitutional right to a
grievance procedure, Azeez v. DeRobertis, 568 F. Supp. 8, 10
(N.D.Ill. 1982). Any alleged failure to follow the procedure
does not state a federal claim, as a violation of state law
does not violate the constitution, Romano v. Oklahoma, ___ U.S.
___, ___, 114 S.Ct. 2004, 2011, 129 L.Ed.2d 1 (1994); Sandin v.
Conner, ___ U.S. ___, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
Accordingly, any claim against defendants McDonald and
Gilmore regarding any of the plaintiff's grievances is
dismissed for failure to state a federal claim.
The plaintiff claims that he was denied access to several
CJCC publications. Piecing together the exhibits, it appears
that the following publications were intercepted in the Hill
mail room and were not forwarded to him:
March 17, 1992 1. Church of Jesus Christ, Christian
2. Aryan Nations, Church of Jesus Christ,
March 25, 1992 1. Church of Jesus Christ, Christian
2. Aryan Nations, Church of Jesus Christ,
June 24, 1992 1. Church of Jesus Christ, Christian
2. Racial Loyalty, # 79
3. Racial Loyalty, # 78
September 10, 1992 1. Conspiracy or Degeneracy, Revelo
January 6, 1993 1. Church of Jesus Christ, Christian
Each of these publications was reviewed by the Hill
publications committee, which consisted of defendants McDonald,
Rockett and Yeazle. The committee decided to deny access to
these publications, which decision was affirmed by defendant
Gilmore. The publications were sent to the IDOC review
committee. One of its members was defendant Simmons. The IDOC
committee affirmed the denial of each of these publications.
The court's above ruling regarding qualified immunity and
mootness of the free exercise claims applies to his free
exercise claim as to publications as well.
Notwithstanding the finding of no viable free exercise claim,
the plaintiff may still state a first amendment "speech" claim
regarding the denial of the publications. In order to justify
banning the publications on this ground the defendants need
only establish that banning the publications bears a reasonable
relationship to legitimate penological interests. In addition,
the court must give great deference to decisions of prison
officials. O'Lone v. Shabazz, 482 U.S. at 349, 107 S.Ct. at
Now comes the real problem. The record does not contain
copies of the refused material, except the treatise entitled
"Conspiracy or Degeneracy".*fn1 The parties have submitted
material from the CJCC, but there is no way of knowing whether
the material submitted has the same content or tenor as the
material rejected by the Hill committee in 1992 and 1993.*fn2
Assuming that the material is similar to the rejected
material,*fn3 the court finds that the defendants have met
their burden under the first amendment. Each of the rejected
publications was rejected based on "a clear and present danger
to the safety and security of the institution." I have reviewed
all of the CJCC material submitted to the court, including
"Conspiracy or Degeneracy" and issues of "Racial Loyalty", and
I find that each publication contains overt negative racial
commentary, constant use of pejorative racial terms, constant
reinforcement of a "them against us" philosophy, and a "call to
action" regarding protection of the Aryan race. (See, Aryan
Nations, Church of Jesus Christ Christian Newsletter (# 48);
defendants' unnumbered exhibit; defendants' exhibit (# 29)).
It is reasonable to conclude that promulgation of such
material in a racially mixed prison setting could present a
clear and present danger. This was the conclusion of the review
committees, and the court gives great deference to that
conclusion. It appears that each publication was reviewed by
the committees, and each was rejected based on its contents.
The plaintiff argues that none of the defendants has
identified any problems in the prison associated with the CJCC.
However, the court cannot find that prison officials must wait
until there is a racial confrontation directly attributable to
the CJCC before they may control access to the kind of
inflammatory publications at issue in this case.
Accordingly, the defendants McDonald, Rockett, Yeazle,
Gilmore and Simmons are entitled to judgment as a matter of law
on the plaintiffs first amendment free speech claim.
7. 1994 PUBLICATIONS GUIDELINES
This claim is apparently directed at defendant Washington,
the current director of the IDOC.
The plaintiff concedes that the 1994 changes to the IDOC's
publication review guidelines correct many of the alleged
deficiencies in the earlier regulation, that is a
total ban on CJCC material. The 1994 regulation requires a
case-by-case review of all CJCC publications. At oral argument,
counsel for the plaintiff stated that he still was mounting a
facial challenge to the validity of the regulation, in that it
still allowed rejection of publications simply because they had
a racial theme.
However, the plaintiff has provided no proof that any
material sent to him has been rejected under the new policy. In
fact, the record contains evidence that CJCC material is being
received by the plaintiff under the new guidelines.
I find that the plaintiff fails to state a claim in that he
has not alleged any injury to himself caused by the 1994
regulations. The defendant Washington is entitled to judgment
as a matter of law on this claim.
8. RELIGIOUS FREEDOM RESTORATION ACT OF 1993
Finally, the court recognizes that the parties have spent
considerable time and energy in ably briefing the issue of the
constitutionality and application of the RFRA to the facts of
this case. The RFRA would apply only to the plaintiff's free
exercise claims, and would impose a heightened scrutiny to the
state's actions. However, in view of the court's decision on
qualified immunity and mootness of the free exercise claims, we
never reach the merits of the plaintiff's allegations or the
The plaintiff argues that the RFRA should "trump" qualified
immunity because it is retroactive. I cannot agree. As
discussed above, the Supreme Court has ruled that the court
must look to the law at the time of the alleged violation to
determine whether there is immunity. The RFRA was not the law
until late 1993, long after the acts alleged in this complaint.
To hold these defendants liable for violating a law that did
not exist at the time of the alleged conduct would eviscerate
the entire purpose of qualified immunity under Harlow and
The defendants are immune from money damages flowing from the
RFRA, and any equitable relief is moot, as discussed in this
In summary, I find that there are no material facts in
dispute. I further find that the defendants are entitled to the
shield of qualified immunity from money damages on the
plaintiffs free exercise claims, and that equitable relief on
those claims is moot by the plaintiffs transfer to Pontiac. I
find that the defendants were justified in rejecting the
publications in issue, and that the plaintiff has failed to
state a claim under the 1994 publications regulations.
The court notes the high quality of legal work done on this
case by both sides. The court particularly recognizes the work
of pro bono appointed counsel, Kevin Evans, John Lapham and
Marguerite Conboy of Schiff, Hardin & Waite of Chicago,
Illinois, for their excellent representation of the plaintiff
in this case.
Accordingly, IT IS ORDERED that the plaintiffs motion for
Summary Judgment (# 70) is DENIED; the defendants' Motion for
Summary Judgment (# 74) is ALLOWED. The clerk is directed to
enter judgment in favor of the defendants and against the
plaintiff, each party to bear its own costs. CASE TERMINATED.