Willie James Stewart, Plaintiff-appellant, v. Steve Berry; al C. Parke; James Dent, Defendants-appellees, 948 F.2d 1290 (6th Cir. 1991)

Before BOYCE F. MARTIN, JR. and SUHRHEINRICH, Circuit Judges, and HILLMAN, Senior District Judge.^* 

ORDER

Willie James Stewart, a Kentucky state prisoner, requests the appointment of counsel on appeal from the summary judgment for defendants in this civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Stewart sued the warden of programs, warden, and chaplain of the Kentucky State Reformatory for injunctive, declaratory and monetary relief, alleging that the defendants were denying him the right to practice his religious beliefs by not allowing African Methodist Episcopal services at the reformatory. The district court adopted the magistrate's recommendation to grant summary judgment to the defendants, over Stewart's objections.

The district court relied on Thompson v. Commonwealth of Kentucky, 712 F.2d 1078, 1080-81 (6th Cir. 1983), which held that the plaintiffs in that case were not entitled to a religious leader at state expense or chapel time comparable to that of other religions. However, Thompson is distinguishable from the question presented by Stewart here, as the administration of the prison in that case did admit an outside leader to conduct services. In this case, the affidavits of the parties create a dispute over whether the defendants denied permission to African Methodist Episcopal ministers to perform services at the Reformatory on a voluntary basis. Due to this unresolved issue of material fact, summary judgment was precluded. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The district court's judgment is therefore vacated and this case is remanded for further proceedings. Rule 9(b) (3), Rules of the Sixth Circuit. The request for counsel is denied.