Unpublished Disposition, 878 F.2d 385 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 385 (9th Cir. 1988)

Richard L. ALLEY, et al., Plaintiffs-Appellants.v.Daniel B. VASQUEZ, Warden, of San Quentin State Prison,Defendant-Appellee.

No. 88-2886.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1989.* Decided June 23, 1989.

D. Lowell Jensen, District Judge, Presiding.

Before CHOY, ALARCON, LEAVY, Circuit Judges.


MEMORANDUM** 

Richard L. Alley, Roscoe Howard, Russell L. Lyles, and Louis C. White (appellants) appeal from the judgment of the district court granting appellees' cross motion for summary judgment in appellants' 42 U.S.C. § 1983 claims. Appellants seek reversal on the ground that they were denied access to their religious minister in violation of their constitutional right to the free exercise of their religion. We affirm.

* BACKGROUND

On June 8, 1985, a correctional sergeant at San Quentin was fatally stabbed. This incident resulted in a lengthy lockdown at the prison. On June 28, 1985, some preferred inmate workers from the general population units were released to their jobs and other restrictions were gradually lifted. The declared "state of emergency" ended on July 29, 1985.

During the lockdown, religious services were suspended for all inmates. Protestant, Catholic, Jewish, and Moslem chaplains employed by the Department of Corrections, however, were available to speak with inmates at their cells upon their request. Volunteer ministers who were not employed by the Department of Corrections, however, were not allowed to enter the prison during the lockdown. Therefore, appellants' Jehovah's Witness Volunteer Minister was not allowed to enter the prison during the lockdown.

During much of 1985 and 1986 appellant Alley was given a pass by his supervisor, Tom Mays, to attend religious services. In November 1985, Sergeant John Calvert informed Mr. Mays that this procedure was incorrect. Sergeant Calvert informed Mr. Mays that inmates were not to be given passes to leave work to attend religious services. Inmates were supposed to request a different job if their job conflicted with the time of religious services.

Sergeant Calvert informed Alley that Mr. Mays had been following the wrong procedure. He further told Alley that if he wanted to attend religious services on Saturdays he should get another job. He told Alley that other jobs were available which would not require him to work on Saturday.

Appellants filed a complaint on August 20, 1985, pursuant to 42 U.S.C. § 1983 alleging that appellees had denied them access to their religious minister. Appellant Alley amended his complaint on December 20, 1985, alleging that appellees had prohibited him from attending religious services on three dates in 1985.

Appellants filed a motion for summary judgment on September 23, 1986. On November 26, 1986, appellees filed their opposition and a cross motion for summary judgment. The district court granted appellee's cross motion for summary judgment and denied appellant's motion for summary judgment on June 6, 1988. Appellants filed a timely notice of appeal.

II

DISCUSSION

We review independently and non-deferentially a district court's entry of summary judgment. Standing Deer v. Carlson, 831 F.2d 1525, 1527 (9th Cir. 1987). Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the non-moving party, it appears that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Standing Deer, 831 F.2d at 1527-28.

Appellants contend that the appellees deprived them of their constitutional right to the free exercise of their religion by denying them the opportunity to attend religious services or see their minister. The test for determining the constitutionality of a prison regulation which allegedly deprives inmates of their religious freedom is whether the regulation is reasonably related to a legitimate penological interest. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). We consider the following factors when scrutinizing a challenged prison regulation:

(1) whether the regulation has a logical connection to the penological interests invoked to justify it; (2) whether the prisoners remain free to participate in other religious activities; (3) whether accommodating the prisoners, (sic) asserted rights would have adverse effects on the institution; and (4) whether ready alternatives that fully accommodate the prisoners' rights could be implemented at de minimis cost to valid penological interests.

Standing Deer, 831 F.2d at 1528 (citing O'Lone, 482 U.S. at 348-53) (emphasis in original).

The denial of the right to participate in religious services and to speak to religious advisors in the instant matter was not an ongoing policy or regulation of the prison. Cf. O'Lone, 482 U.S. at 345-47 (prisoners assigned to outside work details could not return to the prison grounds during the day which prevented them from attending a certain religious service). The temporary suspension of religious services occurred as a result of a systemwide emergency lockdown of the prison. The lockdown was a necessary response to prison violence which had resulted in the fatal stabbing of a correctional officer. We have held that, "when a genuine emergency exists, prison officials may be more restrictive than they otherwise may be, and certain services may be temporarily suspended." Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982); see also Rogers v. Scurr, 676 F.2d 1211, 1216 (8th Cir. 1982) (" [n]o constitutional right of a prisoner is violated when he is not allowed to see visitors during an emergency lockdown, even if the requested visitor is a religious advisor."). Under these circumstances the temporary suspension of religious services was logically related to the legitimate penological interest in prison security.

Appellants contend that the suspension of religious services and the selective ban of certain religious ministers from the prison during the lockdown was an "exaggerated response to prison concerns," because three hundred prisoners were working at the time of the state of emergency and certain religious ministers were admitted to see their members. The fact that certain preferred inmates were allowed to return to work, however, does not mean that prison administrators were required to permit inmates to congregate for religious services. We give deference to a prison administrator's judgment. O'Lone, 482 U.S. at 350. Closely supervised work groups consisting of preferred inmates from the general population units may have been less of a threat to prison security than a large group with a particular "affinity interest." Id. at 353 (prison administrators recognize that when you put a group of individuals together with a particular affinity interest, it is possible that a leadership role and an organizational structure may develop that will almost invariably challenge the prison authority). In the instant matter, the record shows that the warden's decision that certain inmates could return to work while religious services remained suspended was an appropriate administrative decision made necessary by exigent circumstances.

The undisputed evidence also demonstrates that the temporary exclusion of certain religious ministers from the prison grounds during the lockdown was based on legitimate prison security concerns. The prison administrator determined that only state employees should be allowed to enter the prison in order to prevent additional violence. As a result, only state employed religious ministers were allowed to enter the prison to speak with inmates. Because appellants' religious minister was not a state employee, he was temporarily precluded from entering the prison. Thus, the uncontradicted evidence shows that the decision to restrict certain religious ministers from entering the prison was based on a neutral policy and not on a particular minister's religious philosophy. See Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987) (decision to restrict all segregation unit inmates from religious services outside the unit operated "in a neutral manner, without regard to the content of the restricted activity.") The district court properly granted appellees' motion for a summary judgment with regard to appellants' claims resulting from the lockdown.

Appellant Alley also contends that on three separate occasions in 1985 he was denied permission to be excused from his job to attend religious services on Saturday. The record indicates, however, that Alley was informed that other jobs were available that did not require Saturday work. Alley has no constitutional right to work in prison or to any particular prison job. Flittie v. Solem, 827 F.2d 276, 279 (8th Cir. 1987); Watts v. Morgan, 572 F. Supp. 1385, 1388 (N.D. Ill. 1983). No prison regulation or prison administrator required Alley to work in the upholstery department. His decision to work in the upholstery department when other jobs were available caused him to miss Jehovah's witnesses' religious services conducted on Saturdays. Under these circumstances, no prison authorities have deprived Alley of any constitutional right to the free exercise of his religion. Indeed, even a non-prisoner is not necessarily entitled to a particular day off from work to attend religious services. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 82-85 (1977). The district court did not err in granting appellees' motion for summary judgment on this claim.

Finally, appellants contend that the district court was required to hold an evidentiary hearing on the cross motions for a summary judgment. Alley relies on Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). Haines is readily distinguishable. Haines dealt with the dismissal of a pro se complaint without the opportunity to present supporting evidence. Id. at 520. In the instant matter, appellants were given the opportunity to submit supporting evidence to the district court in support of the summary judgment motion and in opposition to appellees' cross motion for summary judgment. Appellants did submit supporting evidence. After viewing the evidence in the light most favorable to appellants, we conclude that appellees were entitled to summary judgment. No genuine issue of material fact exists. The record showed that appellees were entitled to prevail as a matter of law.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3