Young v. Beard , 284 F. App'x 958 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-8-2008
Young v. Beard
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1670
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 07-1670
_________________
RICHARD GLENN YOUNG,
Appellant
v.
JEFFREY BEARD, COMMISSIONER DEPARTMENT OF CORRECTIONS (“DOC”);
DONALD VAUGHN, SUPERINTENDENT STATE CORRECTIONAL INSTITUTE
AT GRATERFORD (“SCIG”); BESSIE WILLIAMS, GRIEVANCE OFFICIALS
(“DOC”); ROBERT BITNER; TSHANNA C. KYLER, DOC CORRECTIONAL
OFFICERS; SCOTT BOWMAN; DELANEY HUMPHREY; RAYMOND KNAUER;
CHARLIE JUDGE; RANDOLPH TAYLOR; DAVID DIGUGLIELMO; JOHN
MURRAY; THOMAS STACHELEK, UNIT MANAGER (“SCIG”); SHARON BURKS;
MARY CANINO; LESLIE HATCHER; JEFF KERRIN; RONALD VERSHINSKI,
Appellees
________________
Appeal from the
United States District Court for the
Eastern District of Pennsylvania
(D.C. No. 04-cv-02211)
District Judge: Honorable Paul S. Diamond
________________
Argued: May 8, 2008
________________
Before: BARRY and STAPLETON, Circuit Judges, and
RESTANI*, Judge
(Filed: July 8, 2008)
________________________
*Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
Stephen D. Brown
Jennings F. Durand (Argued)
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Counsel for Appellant
Thomas W. Corbett, Jr., Attorney General
Claudia M. Tesoro, Senior Deputy Attorney General (Argued)
Calvin R. Koons, Senior Deputy Attorney General
John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section
Office of Attorney General of Pennsylvania
21 South 12th Street, 3rd Floor
Philadelphia, PA 19107
Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
RESTANI, Judge.
Appellant Richard Glenn Young (“Young”) appeals from a judgment of the
District Court in favor of the defendants, finding that the limitations placed on prisoners’
ability to perform in independent music groups did not violate his right of freedom of
expression and his rights under the Establishment Clause of the First Amendment. We
will affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Young, an inmate serving a life sentence at the Pennsylvania State Correctional
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Institution at Graterford (“Graterford”), participated in the prison’s recreational
independent band program 1 and was a member of an independent inmate band that, in
2002, was featured in a VH-1 documentary entitled “Music Behind Bars.”
After severe public criticism following the broadcast, Graterford suspended its
music program to review whether changes were necessary. On October 21, 2002,
Pennsylvania Department of Corrections (“DOC”) Secretary Beard appointed a
committee of DOC personnel to evaluate prison music programs. The committee’s
minutes and policy proposal indicated that recreational music groups in some form should
continue to be permitted. Secretary Beard testified that based on what he learned during
the committee’s investigation and by talking to the deputies and the superintendent, he
concluded that the independent band program was not properly administered or
supervised and undermined prison security.
After partially restoring the music program in November 2002 and instituting a
new music policy in August 2003, a final revised policy was issued in December 2003,
which is still in effect. In addition to individual music-playing, which is allowed under
various conditions in cells, the policy allows for instrumental musical performances at
1
Independent bands practiced multiple times per week and were required to give at
least three performances per year. In 2002, there were approximately ten independent
bands at Graterford with three to twelve members apiece that practiced in the multi-level,
multi-room auditorium area. Each band had an inmate leader responsible for organizing
the group, obtaining the music, and scheduling rehearsals and performances. A staff
member made periodic rounds during practices to supervise the inmates and a
correctional officer was posted outside to check inmates as they came in.
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religious services,2 an annual talent show, and special events as approved by the facility
manager. The new policy provides that any inmate may apply to perform in the talent
show. To perform at a special event, inmates must be nominated by an inmate
organization and may receive up to five supervised rehearsals of several hours apiece.
The independent inmate bands as they existed in 2002, however, are no longer permitted
under the revised policy.
Since the former independent inmate band program was eliminated, Young has not
participated in the Graterford music program, except that he and several of his former
bandmates participated in the 2005 talent show. Young is not a member of an inmate
organization and has not participated in any special events, is not part of a religious band,
and does not wish to play the type of music played by the allowed institutional music
groups.
Young filed a civil action pursuant to 42 U.S.C. § 1983 on June 25, 2004, and a
third amended complaint on August 11, 2006, alleging that the elimination of the prior
inmate independent band program violated his right to freedom of expression and his
rights under the Establishment Clause and Equal Protection Clause of the First
Amendment. On August 23, 2006, the District Court granted the defendants’ motion for
2
Graterford has six religious bands open to inmates who are members of the
congregation and they are allowed two hours per week to rehearse for upcoming services
in the small conference room in the chapel. A chaplain is directly responsible for
supervising inmates and a corrections officer usually remains outside the door and can
observe inside the room through a window in the door.
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summary judgment on the Equal Protection claim. After Young’s October 27, 2006,
Stipulation of Dismissal, all claims were dismissed, except those seeking injunctive relief
against Secretary Beard and DOC Superintendent DiGuglielmo. On January 31, 2007,
following a bench trial, the District Court entered judgment for the defendants on the
remaining claims.
JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction under 28 U.S.C. § 1291. We review the District
Court’s factual findings for clear error and its legal conclusions de novo. United States v.
Weaver, 267 F.3d 231, 235 (3d Cir. 2001).
DISCUSSION
I. Freedom of Expression
“[I]mprisonment does not automatically deprive a prisoner of certain important
constitutional protections, including those of the First Amendment,” but inmates’ rights
may be more restricted than those of non-inmates, as long as the prison regulations that
do so are “‘reasonably related’ to legitimate penological interests, and are not an
‘exaggerated response’ to such objectives.” Beard v. Banks, 548 U.S. 521, 126 S. Ct.
2572, 2577–78 (2006) (quoting Turner v. Safley, 482 U.S. 78, 87 (1987) (internal
quotations omitted)). Once a plaintiff has demonstrated that a constitutionally protected
interest is at stake, Turner v. Safley sets out a four factor test to determine the
reasonableness of the regulation. Turner, 482 U.S. at 89–90. The Turner test requires
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that:
First, there must be a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to justify it,
and this connection must not be so remote as to render the policy arbitrary
or irrational. Second, a court must consider whether inmates retain
alternative means of exercising the circumscribed right. Third, a court must
take into account the costs that accommodating the right would impose on
other inmates, guards, and prison resources generally. And fourth, a court
must consider whether there are alternatives to the regulation that fully
accommodate[ ] the prisoner’s rights at de minimis cost to valid penological
interests.
DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) (internal quotations and citation omitted).
Substantial deference must be given to prison administrators’ judgment. Overton v.
Bazzetta, 539 U.S. 126, 132 (2003). While plaintiffs bear the overall burden of
persuasion, id., prison administrators are required to demonstrate a rational connection
between the policy and the alleged interest, which “‘must amount [ ] to more than a
conclusory assertion.’” Jones v. Brown, 461 F.3d 353, 360 (3d Cir. 2006) (quoting Wolf
v. Ashcroft, 297 F.3d 305, 308 (3d Cir. 2002) (internal quotations omitted)).
The First Amendment’s right to freedom of expression includes musical
expression, and band performances are protected as a form of expressive entertainment.
Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); see also Tacynec v. City of
Philadelphia, 687 F.2d 793, 796 (3d Cir. 1982). The District Court determined, and the
parties do not dispute, that this controlling authority demonstrated that “Young has a First
Amendment right to express himself through music, either individually or with a band.”
(J.A. 23.)
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On the other hand, the enhancement of prison security and proper allocation of
resources are legitimate government interests. See Overton, 539 U.S. at 133 (internal
prison security is “perhaps the most legitimate of penological goals”); see also Jones, 461
F.3d at 361 (prison administrators have a legitimate interest in institutional security).
Here, the record establishes that there is a rational connection between the elimination of
the prior independent band program and institutional security because the poor
supervision of the program itself created an unsafe inmate environment. Prison
administrators did more than make a “conclusory assertion” that the program was a risk to
prison security; rather, they went through the standard review process for evaluating a
policy. A committee was first created to evaluate the music program and the committee’s
recommendations were submitted along with a revised draft policy for consideration to
the Executive Deputy Secretary. The draft policy, with any recommended edits, was then
further submitted for review to the director of the Bureau of Policy and Standards and
then submitted for final approval to Secretary Beard.
The District Court correctly determined that the initial reason for suspending the
music program was irrelevant, because although Secretary Beard “initially suspended the
performance of music at Graterford in reaction to the VH-1 controversy, he subsequently
made changes to the Independent Band Program because Mr. Beard believed that the
program . . . was not safe.” (J.A. 14.) Specifically, concerns centered on band leaders
being placed in charge of other inmates and the manner in which the three-floor
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arrangement was supervised. The District Court found that “virtually every weekday, up
to sixty inmates practiced simultaneously throughout the auditorium area” and that “the
multi-floor, multi-room layout of the rehearsal area made it impossible . . . to directly
supervise the dozens of rehearsing inmates more often than once every twenty or thirty
minutes.” (Id. at 9.) Due to these concerns, the District Court emphasized Secretary
Beard’s right to be proactive, rather then merely reactive in his supervisory role, finding
that “[t]he Constitution did not require [Secretary Beard] to wait for a tragedy to occur
before he could limit inmate rehearsals to those that the prison could directly supervise.”
(Id. at 25.)
Several viable alternatives still exist for inmates to exercise their free expression
rights. Graterford’s current music program and its pre-2002 music program “are, in most
respects, the same,” because inmates can still take music classes, be part of an
institutional band, perform at the talent show and at special events, and play music
individually in their cells. (Id. at 24–25.) The only significant change is the reduction in
rehearsal time that independent bands can enjoy. Reinstating the independent band
program as it previously existed would also have a serious effect on guards, inmates, and
prison resources. It would significantly undermine safety due to the lack of resources
available for proper supervision, as this was part of the reason for discontinuing
independent bands, and there is no indication in the record that these resources are now
available. Finally, although plaintiff has proposed certain arguably less restrictive
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alternatives to the music policy Graterford ultimately imposed, Turner adopted its
deferential standard of review for “questions of ‘prisoners rights’” precisely because it
recognized that prison administrators must be accorded a degree of flexibility to address
the “complex and intractable” problems that arise in our prisons. See Turner, 482 U.S. at84–89. It is for this reason that prison officials are required to adopt only a reasonable
response to the governmental interest asserted, not the best or least restrictive response.
For the reasons set forth above, we find that the Graterford music program is a reasonable
response to the security concerns defendant has identified.
Accordingly, the District Court did not err in finding that the restriction of
independent bands in Graterford’s music program satisfied the Turner test and that
Young’s First Amendment right of freedom of expression was not violated.
II. The Establishment Clause
The Establishment Clause of the First Amendment provides that “Congress shall
make no law respecting an establishment of religion.” U.S. Const. amend. I. The
Supreme Court has articulated various tests for analyzing Establishment Clause claims. It
has traditionally applied a test termed the “Lemon” test, under which “the challenged
action is unconstitutional if (1) it lacks a secular purpose, (2) its primary effect either
advances or inhibits religion, or (3) it fosters an excessive entanglement of government
with religion.” Modrovich v. Allegheny County, 385 F.3d 397, 401 (3d Cir. 2004).
More recently, the Court has also applied an “endorsement” inquiry for certain
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Establishment Clause claims. “The relevant question under the endorsement test is
‘whether a reasonable observer familiar with the history and context of the display would
perceive the display as a government endorsement of religion.’” Borden v. Sch. Dist. of
Twp. of E. Brunswick, 523 F.3d 153, 175 (3d Cir. 2008) (quoting Modrovich, 385 F.3d at
401). Thus, when the government “affirmatively supports religion on preferential terms,”
its actions violate the Establishment Clause under the endorsement test. Tenafly Eruv
Ass’n v. Borough of Tenafly, 309 F.3d 144, 175 (3d Cir. 2002) (citation omitted).
We have explained that the “endorsement” test is applicable “[i]n cases involving
state participation in a religious activity.” Borden, 523 F.3d at 175 (citation omitted); see
also Freethought Soc’y of Greater Phila. v. Chester County, 334 F.3d 247, 258 (3d Cir.
2003). The Court also emphasizes that “[t]he touchstone for [its Establishment Clause]
analysis is the principle that the ‘First Amendment mandates governmental neutrality
between religion and religion, and between religion and nonreligion.’” McCreary County
v. ACLU of Ky., 545 U.S. 844, 860 (2005) (citations omitted).
Young claims that the new prison music policy violates the Establishment Clause
because, while the prior independent band program was removed, religious bands are still
permitted. The notion of governmental neutrality is an important guide, but it is not a
rigid rule. Id. at 874. The Supreme Court has long recognized that “there is room for
play in the joints” between the First Amendment’s two clauses concerning religion: “the
government may . . . accommodate religious practices . . . without violating the
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Establishment Clause,” but “[a]t some point, accommodation may devolve into ‘an
unlawful fostering of religion.’” Cutter v. Wilkinson, 544 U.S. 709, 713–14 (2005)
(citations omitted).
Graterford’s music programs have not crossed the threshold into “unlawful
fostering.” Viewed through the prism of the Lemon test, the religious music program has
a valid purpose, because the Free Exercise Clause requires the government to make
reasonable religious accommodation for its prisoners, Hudson v. Palmer, 468 U.S. 517,
523–24 (1984), and “it is a permissible legislative purpose to alleviate significant
governmental interference with the ability of religious organizations to define and carry
out their religious missions.” Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 335
(1987). We find nothing in the record remotely suggesting that the changes to the secular
music program had a purpose of promoting religion. And, although the religious and
non-religious programs are not precisely the same, we do not believe that the primary
effect of the prison’s music policies will be to advance religion. The religious music
program is entirely optional, and the prison still offers several options for musical
expression, both religious and non-religious. The District Court found that the prison’s
revision to the secular music program has not caused inmates to seek to join the religious
program.
Further, the continued allowance of religious bands has not communicated either
an endorsement or a disapproval of any religion because musical expression is not limited
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to religious contexts. We do not believe a “reasonable observer” could interpret
Graterford’s music programs as an endorsement of religion.
Accordingly, the District Court did not err in concluding that Graterford’s music
program does not violate the Establishment Clause.
CONCLUSION
For the foregoing reasons, we will AFFIRM the judgment of the District Court.
_____________________________
TO THE CLERK:
Please kindly file the foregoing Opinion.
By the Court,
/s/ Jane A. Restani
Judge
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