Denson v. Marshall ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-2027
MACARTHUR DENSON,
Plaintiff, Appellant,
v.
JOHN H. MARSHALL, JR.; MARK POWERS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Stahl and Lynch,
Circuit Judges.
MacArthur Denson on brief pro se.
Nancy Ankers White, Special Assistant Attorney General, and
Ann M. McCarthy, Counsel, Department of Correction, on brief for
appellees.
September 29, 2000
Per Curiam. Pro se appellant MacArthur Denson is
a prisoner confined to the Departmental Disciplinary Unit
(DDU) at M.C.I. Cedar Junction, a Massachusetts correctional
institution. He has sued John Marshall, the Superintendent
of that facility, and Mark Powers, the Deputy
Superintendent, alleging that they violated his
constitutional right to the free exercise of his religion by
denying his request for non-perishable food to enable him to
fast during daylight hours for three days each month. The
district court granted the defendants' motion for summary
judgment and thereafter denied appellant's motion for
reconsideration. Having thoroughly reviewed the record and
the parties' briefs on appeal, we affirm, substantially for
the reasons stated by the district court. See Denson v.
Marshall, 59 F. Supp.2d 156, 157-59 (D. Ma. 1999). We add
the following comments.
We reject appellant's contention that the district
court erroneously resolved genuine issues of material fact
in granting the defendants summary judgment. The factual
issues that the appellant identifies were not material to
the resolution of this case. Even if we credit appellant's
evidence that peanut butter and jelly are readily available
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at Cedar Junction, it is clear that appellant is seeking
"special food" (i.e., items which deviate from the general
menu) at a "special time" (three particular days each
month). This particularized accommodation pales in light of
the avenues of religious expression that are already
available to appellant. Under these circumstances, the
district court properly deferred to the superintendent's
informed opinion that accommodating appellant's request
would create intolerable logistical and security problems.
See, e.g., Kadey v. Jones, 836 F.2d 948, 950-51 (5 th Cir.
1988); Udey v. Kastner, 805 F.2d 1218, 1220-21 (5 th Cir.
1986).1 Similarly, although the district court did not
explicitly mention the fourth factor under the Turner test,
we discern no error. On this record, it is clear that the
court implicitly abjured appellant's contention that his
1Contrary to appellant's contention on appeal, the fact that
appellant may not observe the particular fasts in issue without
the institution's accommodation is of no moment here. "'[T]he
right' in question must be viewed sensibly and expansively."
Thornburgh v. Abbott, 490 U.S. 401, 417-18 (1989)(citations
omitted). Thus, the relevant inquiry under the second Turner
factor is whether an inmate has alternative means of expressing
his religious beliefs generally, not whether there is an
alternative means of engaging in the particular religious
practice in issue. Accord DeHart v. Horn, ___ F.3d ___, 2000
WESTLAW 1280970 at *5 (3d Cir. Sept. 8, 2000); Ward v. Walsh, 1
F.3d 873, 877 (9th Cir. 1993).
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request could be accommodated at a de minimis cost to valid
penological interests.
Affirmed. See Loc. R. 27(c).
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