Staley, Aldisert and Hunter, Circuit Judges.
This appeal from a judgment for defendants entered upon a jury verdict raises questions of alleged error during the course of a trial for money damages brought by a state prisoner under 42 U.S.C. § 1983. Trial was held following remand by us, Wilson v. Prasse, 404 F.2d 1380 (3d Cir. 1968), for the purpose of ascertaining whether defendants deprived appellant of his rights under the Free Exercise Clause of the First Amendment, made applicable to the states by the Fourteenth Amendment. Appellant is a member of the Muslim faith, was a state prisoner at the time of these proceedings and is now on parole.
We address ourselves initially to appellant's contention that in delivering its jury instructions the court erred in its definition of the proper test for measuring the validity of prison rules and regulations governing the practice of the Muslim religion by appellant and other inmates. Specifically, appellant urges that the reasonableness test, as utilized by the court, was improper, and that examination of these regulations by the proper standard would have resulted in a directed verdict for plaintiff.
Appellant introduced evidence that inmates at Pennsylvania's Western Penitentiary could be visited by and correspond with Catholic priests, Protestant ministers, and Jewish rabbis of their choice, but that restrictions were imposed as to visits by and correspondence with Muslim ministers.*fn1 Defendants agreed that Catholic, Protestant, and Jewish religious services were held and, indeed, were conducted at state expense,*fn2 but submitted testimony that prison authorities had attempted to comply with the practice ordered by the Eastern District of Pennsylvania in Knuckles v. Prasse, 302 F. Supp. 1036, 1062 (E.D.Pa.1969), and affirmed by us, 435 F.2d 1255 (3d Cir. 1970): Muslim inmates in Pennsylvania prisons are entitled to have visits by Minister Jeremiah Shabazz and other accredited ministers "so long as the doctrines espoused by the ministers are identical to those Minister Shabazz testified to during the court proceedings." Defendants introduced testimony that although requested, Minister Shabazz never came forward with a list of accredited Muslim ministers. Superintendent Brierley also testified that the attorney general wrote to the Honorable Elijah Muhammad, the recognized head of the Muslim religion, for information concerning the availability of a minister to act as chaplain for the Black Muslim inmates and received no reply. There was also testimony that the prison chapel was available for Muslim use, and that religious services for Muslims had been conducted by a lay Muslim minister, but the Muslim inmates raised objections to the presence of religious articles representative of other religions and to the presence of prison guards during their services.*fn3
Appellant introduced testimony that although inmates may regularly order, receive, and possess Bibles and other religious literature, including religious newspapers, prison rules and regulations prevent inmates from ordering, receiving, or possessing Muslim literature, including that version of the Koran (also known as Qur'an) approved by Honorable Elijah Muhammad, and certain other publications, viz., The Supreme Wisdom, How to Eat to Live, Message to the Black Man, and Muhammad Speaks. Defendants elicited testimony that approved copies of the Koran*fn4 were available at the institution, as were other publications plaintiff claimed were denied him.*fn5
The question of the distribution of Muslim literature among prison populations is not free from difficulty. The writings and teachings of the Honorable Elijah Muhammad have been described as capable of two interpretations by rational persons: first, "as an endorsement of a concept of intense hatred for all whites, who are referred to as 'devils.' Further, these writings and teachings could be interpreted as an endorsement of a concept that whites generally and prison and government authorities should be defied by Muslim prisoners even when legal orders or demands are made." Knuckles v. Prasse, supra, 302 F. Supp. at 1050, Higginbotham, J. "From another perspective, a rational person could interpret [these writings] as merely a partisan historical analysis of this nation's shameful history of slavery and a condemnation of racial discrimination, past and present, in the United States and other Anglo-Saxon nations." Ibid, 302 F. Supp. at 1050-1051. Accordingly, Judge Higginbotham ruled, and his ruling was explicitly affirmed by this court: "Since the literature could be subject to inferences urging such defiance if not properly interpreted by a trained Muslim minister, I rule that it is not mandatory that the prison authorities make available to prisoners the writings. In the hands of the inmate who is not fully informed of the Black Muslim doctrine, as Minister Shabazz purports it to be -- under such circumstances the literature could constitute a clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly functioning of the institution." Ibid, 302 F. Supp. at 1059.*fn6
Additionally, there was evidence that Muslim dietary laws precluded the use of pork, and because the regular prison fare included this meat, plaintiff was denied a proper and adequate diet. Countering this, the institution's steward testified that the prison diet was such that if plaintiff chose foods which contained neither pork nor the essence thereof, he could still obtain a satisfactory diet.
Following the reception of this evidence, the court charged, in part:
Now, it appears in this case that plaintiff is a prisoner duly incarcerated in a state correctional institution. Now, this very fact means that he is deprived of his liberty to a great extent. This is why he was sent there. In such a case the prison authorities have the right to make reasonable rules and regulations for the operation of the prison, and they have wide discretion in the matters of prison operation and discipline.
The subject of reasonable maintenance of discipline in a state institution like this is not subject to the supervision of a federal court, whether a judge or jury or combined. On the other hand, plaintiff is entitled to the free exercise of his religion as long as it does not interfere with the reasonable rules and regulations of the institution. The prison officials need not have special rules and regulations tailored to meet the needs of every group in the prison.
Further, while they should impose no unreasonable barriers, that is, unreasonable under the circumstances of the particular case, to the free exercise of an inmate's religion, they are not under duty to supply every ...