text:
    J. Gary SHAW, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
    Civ. A. Nos. 82-1602, 82-2108, 82-2109, 82-2110, 82-2128, 82-2130, 82-2156, 82-2379, 82-2522, 82-2523 and 82-2680.
    United States District Court, District of Columbia.
    Jan. 11, 1985.

      Bernard Fensterwald, Jr., Fensterwald & Associates, Arlington, Va., for' plaintiff.
    Nathan Dodell, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM ORDER

HAROLD H. GREENE, District Judge.

This is a Freedom of Information action pursuant to 5 U.S.C. § 552. Plaintiffs seek documents from the FBI to substantiate their theory that French mercenaries were involved in the assassination of President John F. Kennedy. Presently before the Court are plaintiffs’ motions to compel a search despite the absence of privacy waivers and for a waiver of search fees.

I

Plaintiffs have requested all records maintained by the FBI on various named individuals. The FBI has responded by establishing several search levels to be used in processing the request. First, if plaintiffs submit privacy waivers or proof of death of the named individuals, the FBI will conduct a general search of its records to identify material responsive to plaintiffs’ request. Second, even without privacy waivers, the FBI will conduct a general search of all records if the individual in question appears on the Master Index to the JFK Assassination Investigations compiled by Sylvia Meagher. Third, with respect to requests for records on individuals where no privacy waivers have been filed and where the individual’s name does not appear on the Meagher Index, the FBI will conduct a search of its files directly related to the Kennedy assassination, but it will not conduct a more general search of the records. Plaintiffs’ motion seeks to compel the FBI to undertake a general search with respect to the requests which fall within the third category.

The FBI’s position is that this limitation on what records will be searched for is justified by exemption 552(b)(7)(C) of FOIA which exempts from the requirements of FOIA: “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy.” The FBI argues that all files concerning individuals which are located within the FBI system of records are per se investigatory records compiled for law enforcement purposes and therefore meet the threshold test of exemption (7) of FOIA, and that maintenance of any such record on a particular individual, if confirmed by the FBI, would constitute a clearly unwarranted invasion of that individual’s personal privacy. Accordingly, the FBI has refused to conduct a more general search for records relating to these individuals.

While this Court is sensitive to the personal privacy interests identified by the FBI, it is unable to sanction the approach advocated by the FBI. The purpose of FOIA is to increase citizen access to government records. Stern v. FBI, 737 F.2d 84, 88 (D.C.Cir.1980). The burden is on the government to prove that a document is exempt from disclosure, not on the individual to prove his need for the document. In the case of exemptions under (b)(7)(C), this requires analysis of the record under what for present purposes may be regarded as a two-part test. In order to be withheld, the material (1) must be an “investigatory record” which was “compiled for law enforcement purposes,” and (2) it must satisfy the requirement that disclosure would be an unwarranted invasion of personal privacy. Pratt v. Webster, 673 F.2d 408, 413 (D.C.Cir.1982); see also FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982).

The Court of Appeals for this Circuit rejected the FBI’s claim in Pratt that all FBI records are investigatory records compiled for law enforcement purposes. Thus, before the agency can even begin to claim a (7)(C) exemption it must locate the documents in question and determine whether they meet this threshold requirement. See Pratt v. Webster, supra; Stern v. FBI, supra.

Even if the records are found to meet the threshold requirement, the agency must then determine whether disclosure of the particular information is an unwarranted invasion of personal privacy. While in some instances, disclosure of the fact that an individual has been the subject of an FBI investigation may itself be an invasion of personal privacy, here again the agency has a duty to weigh the personal privacy interest against the public interest in disclosure.

The FBI has short-circuited all these processes, stating, in effect, that the only conceivable public interest in disclosure would have to be related to the Kennedy assassination, and that, since the FBI’s Kennedy assassination files are being fully searched, the public interest in searching FBI records for other files is per se outweighed by the individual’s privacy interest.

These arguments are unpersuasive. Plaintiffs may have an unorthodox theory on the Kennedy assassination; in fact, they totally reject the FBI view, and that of the Warren Commission, of the events surrounding the assassination. What plaintiffs are attempting to do is to uncover information which, they hope, will explain the Kennedy assassination according to their theory. They are not interested in reviewing the information from which the FBI developed its own theory of assassination, and there is, of course, nothing in the law which restricts outside researchers to the FBI’s view of either history or current events. Such a limitation by the nation’s premier investigation agency on those who would challenge the orthodox view of recent history is inconsistent with the premises underlying the Freedom of Information Act.

On the other hand, plaintiffs cannot overcome otherwise valid privacy interests with the bald assertion that their research is in the public interest because it is somehow related to the Kennedy assassination. As indicated above, plaintiff’s theory of the Kennedy assassination is unorthodox; it is also amorphous. Under the circumstances, it is unreasonable to expect the FBI to supply the missing links in that theory — indeed, it might be impossible for the FBI to do so. However, it is not unreasonable to expect the agency to search its files (1) to ascertain with respect to specific individuals identified by plaintiffs whether the specific facts averred in plaintiff’s affidavits, including the alleged relationships among these individuals, are true according to those files, and (2) to follow up on these facts to the extent of determining whether the FBI files on these individuals reveal (a) additional relationships among them or with others with respect to whom plaintiff has filed FOIA requests in this case and (b) a connection between these individuals and President Kennedy or the city of Dallas around the date of the assassination.

If such a search uncovers investigatory records on the individuals identified by plaintiffs, the FBI might conclude that disclosure of the records would not constitute an unwarranted invasion of privacy, or it might conclude that the public interest outweighs any privacy interest. The privacy interest could vary significantly from document to document, or from individual to individual. As the Court of Appeals has stated, “[b]ecause the myriad of consideration involved in the Exemption 7(C) balance defy rigid compartmentalization, per se rules of nondisclosure based upon the type of document requested, the type of individual involved, or the type of activity inquired into, are generally disfavored.” Stern v. FBI, supra, 737 F.2d at 91. In this case, where it is not yet clear what other records exist or how the material in these records would invade personal privacy, a per se rule is particularly inappropriate. Stern v. FBI, supra; Lame v. U.S. Dept. of Justice, 654 F.2d 917, 923 (3d Cir.1981); Fund for Constitutional Government v. National Archives, 656 F.2d 856 (D.C.Cir.1981). Thus, FOIA requires that the FBI search its records and after reviewing the contents of the records, strike the proper balance. That balance can then, if necessary, be further reviewed by a court.

The FBI must therefore conduct a search for records responsive to plaintiffs’ request, including records on individuals for whom no privacy waivers have been submitted. If this search uncovers no materials of the sort described above, the FBI has met its obligations under the Act. If the FBI discovers such materials, it must determine whether the records in question meet the test for exemption from disclosure under (7)(C) or are exempt under any other provision of law. Any records which are found to be non-exempt must be disclosed to plaintiff. Where the FBI concludes that a record is exempt and where personal privacy considerations lead it to refuse to confirm or deny the existence of the record, the agency shall file an in camera affidavit explaining to the Court what documents are being withheld, with a summary of the information and the privacy considerations which would, in the view of the FBI, militate in favor of or against release of the information pursuant to exemption (7)(C). This will permit the Court to review the FBI’s determination without impinging upon valid privacy interests by confirming the existence of FBI records on certain individuals.

II

With respect to plaintiffs’ motion for a waiver of search fees, FOIA permits agencies to furnish records without charge where the agency determines that waiver of the fee is in the public interest “because furnishing the information can be considered as primarily benefitting the general public.” 5 U.S.C. § 552(a)(4)(A). An agency determination not to waive search fees should be disturbed by a reviewing court only if that determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

On October 15, 1982, the Office of Information and Privacy denied plaintiffs’ requests for a waiver of search fees. This denial is based upon two principal justifications. First, the agency has made the assessment that the likelihood of any possible connection between the information sought and the assassination is remote and theoretical. Second, enormous amounts of public funds have been expended in investigating the assassination and significant amounts of information have already been made available. For that reason, the agency has determined that the public benefit from disclosure of the additional material sought by plaintiffs is remote. The agency has also stated that it would reconsider the denial of search and copying fees on the plaintiffs’ requests “if, on the basis of documents received, the Agency concludes, independently or with the assistance of the plaintiffs, that release of the documents would benefit the general public.”

The plaintiffs have failed to show that the agency’s decision was arbitrary, capricious, or an abuse of discretion. The agency has reviewed the plaintiffs’ requests and evaluated the potential public benefit from disclosure of this information. Its conclusion that plaintiffs’ search is unlikely to result in significant benefit to the public interest is not arbitrary or capricious. The further caveat that, should a public benefit be forthcoming, the agency would reconsider, makes it clear that the agency has evaluated the competing interests and reached a reasonable accomodation. Plaintiffs are intent upon testing their own somewhat unique theory of the Kennedy assassination. While they have the right to undertake such an investigation, they have not established that they have the right to a waiver of search fees or that the agency’s denial of their waiver request was arbitrary or capricious.

For the reasons stated, it is this 11th day of January, 1985

ORDERED that plaintiffs’ motion to compel a search of FBI files in the absence of privacy waivers be and it hereby is granted; and it is further

ORDERED that defendant shall file an affidavit with the Court on or before February 25, 1985, detailing either by public affidavit or in camera submission which documents have been identified as responsive to plaintiffs’ request, which have been disclosed to plaintiff, and which have been withheld, and on what basis they have been withheld; and it is further

ORDERED that plaintiffs’ motion for a waiver of search fees be and it is hereby denied.

      . The FBI also cites exemption (6) and exemption 7(D). The reasoning here applies to these claims as well.

      . In some circumstances official confirmation of the fact that an individual was the subject of an FBI investigation may, of course, be an unwarranted invasion of personal privacy. Blakey v. Department of Justice, 549 F.Supp. 362 (D.D.C.1982), aff’d without opinion (1983); Rushford v. Civiletti, 485 F.Supp. 477 (D.D.C.1980), aff'd without opinion (1981).


source: Caselaw Access Project

author: SPELLMAN, District Judge.

license: Public Domain

text:
    J.I. KISLAK MORTGAGE CORPORATION, a Florida corporation, Plaintiff, v. The CONNECTICUT BANK AND TRUST COMPANY, N.A., etc., et al., Defendant.
    No. 83-2843-CIV-EPS.
    United States District Court, S.D. Florida, Miami Division.
    Jan. 11, 1985.

      Steven D. Ginsburg, Coral Gables, Fla., for plaintiff.
    J. Don Friedman, Longwood, Fla., for defendant.
   MEMORANDUM OPINION AND ORDER DENYING MOTION TO TRANSFER CAUSE TO MORE CONVENIENT FORUM

SPELLMAN, District Judge.

THIS CAUSE comes before the Court on Defendant’s Motion, made pursuant to 28 U.S.C. § 1404(a), to Transfer this Cause to the United States District Court for the District of Connecticut, a “More Convenient Forum.” The Court having reviewed the same and being otherwise duly advised that settlement negotiations have terminated, thus dissolving this Court’s November 26, 1984 Order Granting Stipulation to Abate, it is hereby

ORDERED AND ADJUDGED that Defendant’s Motion to Transfer is DENIED.

28 U.S.C. § 1404(a) provides:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

As Defendant points out, the purpose of § 1404(a) is to prevent waste of time and money, and to protect parties, witnesses, and litigants from unnecessary inconvenience and expense. See Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Congress’ intent in passing 28 U.S.C. § 1404(a) was to permit courts to transfer cases upon a lesser showing of inconvenience than that required by the doctrine of forum non conveniens. See Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955).

What Defendant does not point out is the well-settled fact that “[a] discretionary transfer under 28 U.S.C. § 1404(a) ‘will not be granted absent a clear cut and convincing showing by defendant that the balance of convenience weighs strongly in favor of the transferee court.’ ” Vassallo v. Niedermeyer, 495 F.Supp. 757, 759 (S.D.N.Y.1980) (quoting General State Authority of Pennsylvania v. Aetna Casualty and Surety Co., 314 F.Supp. 422, 423 (S.D.N.Y.1970). The burden is on the defendant, when it is the moving party, to establish that there should be a change of forum. Unless the balance strongly favors the defendant, plaintiff’s choice of forum will rarely be disturbed. Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 341 (8th Cir.1983). Thus, “[i]n the absence of a clear difference in convenience, the plaintiffs choice of forum is determinative.” NTN Bearing Corp. v. Charles E. Scott, Inc., 557 F.Supp. 1273, 1279 (N.D.Ill.1983).

This Court is of the opinion that defendant has not carried its burden of proving entitlement to a change of venue under § 1404(a). Defendant’s motion contains mere conclusory assertions as to the merits of its entitlement to a change of venue and a few factual assertions that do not satisfy the requirement of proving by a clear showing that the balance of conveniences favor the granting of defendant’s request. This Court thoroughly reviewed the record, see Surco Products, Inc. v. Theochem Laboratories, 528 F.Supp. 677 (S.D.Fla.1981), and studied the affidavits submitted by defendant in support of this motion to transfer (these same affidavits were previously filed in support of Defendant’s Motion to Quash Process). The substance of these affidavits, however, does not support a transfer of this cause to the District of Connecticut. Defendant has based this motion on generalized statements that: 1) all of its employees who will be witnesses reside in or about Connecticut; 2) all of its germane business records are in Connecticut; and 3) all of the employees of Ridgewood Savings Bank (the purchaser of the mortgage in question) are in New York and are not subject to this Court’s compulsory process.

Courts have been uniform in holding such a bald showing as insufficient. In American Standard, Inc. v. Bendix Corp., 487 F.Supp. 254 (W.D.Mo.1980), the general rule was explained: “But if the party moving for transfer under § 1404(a) merely makes a general allegation that witnesses will be necessary, without identifying those necessary witnesses and indicating what their testimony at trial will be, the motion for transfer based on convenience of witnesses will be denied.” Id. at 262. See also Wright, Miller & Cooper, Federal Practice and Procedure § 3851, at 271 (1976).

Similarly, as with witnesses, “general allegations that a transfer is needed because of the location of books and records are not enough. The moving papers [sic] must show the location, difficulty of transportation and importance of the books and records.” 487 F.Supp. at 264. “[B]ecause usually many records, or copies thereof, are easily transported, their location is not entitled to great weight.” Id.

It is equally clear, with respect to the alleged witnesses of Ridgewood Savings Bank, “that neither the inability to implead third parties nor the lack of compulsory process necessarily mandates ... transfer.” Mowrey v. Johnson & Johnson, 524 F.Supp. 771, 776 (W.D.Pa.1981). More importantly, however, defendant has not even suggested that any of these witnesses, neither specified by name, nor generally by the nature or quality of their purported testimony, would be unwilling to testify and that compulsory process would be necessary. See Hess v. Gray, 85 F.R.D. 15, 25 (N.D.Ill.1979). While the capability of joining third parties may be a consideration, “to be afforded any weight, however, the moving party must persuade the Court that the need for third-party practice is more than a remote possibility.” Vassallo v. Niedermeyer, 495 F.Supp. at 761. And as in Vassallo, the mere assertion that an additional party may be needed “falls well short of this mark.”

Thus, for the reasons discussed above, defendant has failed to carry its strong burden of showing that there should be a change of forum. Defendant’s Motion for Transfer is therefore denied. However, in light of this Court’s recent Order Permitting Defendant to Amend its Answer, in which a new counterclaim is asserted, this Order denying the Motion to Transfer is without prejudice to being refiled, setting forth specifically the facts necessary to properly consider a motion under § 1404(a).


author: SHAPIRO, District Judge.

text:
    Patricia FORREST v. Agnes CASE, Individually and in her capacity as guard in the Bucks County Prison and Rufus Clark, Individually and in his capacity as Lieutenant Guard, Bucks County Prison.
    Civ. A. No. 83-4279.
    United States District Court, E.D. Pennsylvania.
    Jan. 17, 1985.
    Paul N. Sandler, Philadelphia, Pa., for plaintiff.
    James M. McNamara, Asst. County Sol., Doylestown, Pa., Carl D. Buchholz, III, Rawle & Henderson, Philadelphia, Pa., for defendants.
   MEMORANDUM and ORDER

SHAPIRO, District Judge.

Plaintiff Patricia Forrest brought this action against Bucks County, several County Commissioners, the Warden of Bucks County Prison, a member of the Bucks County Prison Board and two prison guards of Bucks County Prison for alleged constitutional violations committed against her while she was detained at the Bucks County Prison prior to her posting bail. Plaintiff claims that a body cavity search conducted by prison guards was unconstitutional and that she received inadequate medical care causing her to suffer an epileptic seizure. On September 27, 1984, all defendants in this action filed a motion for summary judgment. Following oral argument held on November 5, 1984, this court granted summary judgment in favor of defendants other than the prison guards, Agnes Case and Rufus Clark. As to these defendants, the court found that plaintiff had stated a valid cause of action “for the allegedly unconstitutional manner in which her search was conducted and perhaps for the allegedly inadequate medical care she received.” On November 19, 1984, defendants Case and Clark moved for reconsideration of their motion for summary judgment. For the reasons set forth below, their motion will be denied.

In their November 19, 1984 motion for reconsideration, defendants contended that plaintiff had failed to state a cause of action for alleged constitutional violations because state law provided adequate post-deprivation remedies. As authority for this proposition, defendants cited two cases from this district that found the Supreme Court holding of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), applied to liberty as well as property interests. Since the filing of defendants’ motion for reconsideration, the Third Circuit, in Davidson v. O’Lone, 752 F.2d 817 (3d Cir.1984) (en banc), has held that § 1983 actions may be brought to vindicate a liberty, in contrast to property, interest regardless of the availability of a post-deprivation remedy in the state courts. In a supplemental brief filed January 8, 1985, defendants acknowledge that this holding denies authority to the district court decisions relied upon by defendants. They contend, nonetheless, that the Davidson holding precludes the possibility of recovery by plaintiff because the Davidson court held that negligence claims are not encompassed within § 1983. Defendants claim that, “no intentional conduct, gross negligence or reckless indifference” could be found in the conduct of Agnes Case or Rufus Clark. The court cannot agree with this contention.

In contrast with the Davidson case, plaintiff’s complaint alleges specifically that the conduct of defendants was willful and intentional, not merely negligent. Plaintiff alleges intentional constitutional violations with respect to both the alleged deprivation of medical care and the manner in which the strip search was conducted. Although proof of intentional conduct on the part of defendants may not be overwhelming, it is not to be weighed on a motion for summary judgment; whether defendants’ conduct was intentional or willful is a factual issue that it must be resolved by the jury.

Defendants further argue in their motion for reconsideration that they cannot be held accountable for the medical treatment received by plaintiff because they did summon a nurse who administered medical care. Defendants contend that prison guards cannot be expected to second-guess the medical judgment of a nurse or to answer for medical care provided by another. However, plaintiff contends not only that the treatment administered by the nurse was inadequate, but also that the prison officials demonstrated deliberate indifference to the medical needs of the plaintiff by failing to contact her physician and by refusing to summon the prison physician on duty when plaintiff informed the guards that she was about to have an epileptic seizure. Moreover, plaintiff has alleged that after she had suffered a seizure, defendants continued her post-arrest processing and refused her repeated requests for post-seizure rest and medical attention. Again, the question of whether this conduct by prison officials rose to the level of deliberate indifference to her medical needs is a factual one that must be resolved by a jury. Therefore, because plaintiff has alleged issues which can only be resolved by the fact-finder, defendants’ motion for reconsideration is denied.


text:
    UNITED STATES of America v. Lawrence W. LAVIN, et al.
    Crim. No. 84-388-01.
    United States District Court, E.D. Pennsylvania.
    Jan. 17, 1985.

      Lynell N. Staton, and Dennis O. Wilson, Asst. U.S. Attys., Philadelphia, Pa., for plaintiff.
    Thomas A. Bergstrom, Philadelphia, Pa., for defendants.
   MEMORANDUM of DECISION

SHAPIRO, District Judge.

Defendants Lawrence W. Lavin and Kim Norimatsu moved to suppress evidence obtained from electronic surveillance originally authorized pursuant to Title III of The Omnibus Crime Control Act for thirty (30) days on December 19, 1983 and extended on January 19, 1984 for an additional seven days through January 21, 1984. Their subsequent indictments for offenses involving distribution of and conspiracy to distribute controlled substances were pending before Judge Louis Poliak but, in accordance with Local Rule of Criminal Procedure 16(c), these motions were referred to the judge who authorized the electronic surveillance. This court considered supporting and opposing memoranda, and heard argument in court on November 16,1984, as well as testimony of Assistant United States Attorneys and FBI Special Agent Charles Reed in camera, and denied these motions on December 10, 1984. This Memorandum articulates the reasons for that decision.

The motions to suppress the electronic surveillance evidence were based on three grounds:

1. Anthony Venezia recanted information provided to federal agents and referred to in the affidavit supporting the wiretap application.

2. Tax return information of defendant Lavin included in this affidavit was provided by an IRS agent in violation of 26 U.S.C. § 6103.

3. The application and affidavit lacked probable cause for belief that particular communications concerning narcotics offenses would be obtained by intercepting the telephone at the home of Bruce Taylor and his wife Suzanne Norimatsu-Taylor.

For the reasons articulated herein, this court found:

1. There was insufficient evidence to find that Anthony Venezia did in fact recant; but éven if he did, there was probable cause to authorize and continue the electronic surveillance without his information.

2. Even though the investigation was not related to tax administration and tax return information was made available in violation of 26 U.S.C. § 6103, there was probable cause to authorize and continue the electronic surveillance without this information.

3. There was probable cause for belief that interception of telephone communications to and from the Taylor residence would relate to narcotics offenses by Bruce Taylor and others without reference to information provided by Venezia or IRS agents.

On December 19, 1984, the United States applied for the interception of telephones located in the Valley Forge Shopping Center and the homes of Francis Joseph Burns and his wife, and Bruce Taylor and Suzanne Norimatsu-Taylor. The court found probable cause to believe that Dr. Lawrence William Lavin, Bruce Taylor and others known and unknown had committed and were committing offenses involving violation of 21 U.S.C. §§ 841(a)(1), 843(b), and 846 and that communications concerning these offenses (dates, time and places and manner of possessing, delivering and financing purchase of controlled substances) would be obtained. Interception was then authorized for an original thirty-day period and later extended as to six of the eight telephones for an additional seven days. The interception was terminated on January 21, 1984 but service of the inventory was postponed until October 11, 1984.

An 185-page affidavit, together with exhibits, provided the factual basis for the application and demonstrated that normal investigation procedures had failed and appeared unlikely to succeed if tried in the future. After identifying the telephones and their relationship to suspected narcotics conspirators, the affidavit summarized the results of a previous wiretap on the home telephone of one of the suspects in Phoenix. This authorized interception revealed a conspiracy to distribute cocaine supplied by the Philadelphia suspects whose telephones were to be intercepted. The drug deliveries discussed by telephone were confirmed by airport surveillance although false names and addresses were used by the travellers.

Periodic surveillance of Francis Burns and Bruce Taylor was also conducted by the affiant and other FBI agents during the five months prior to the intercept application. The reports of surveillance tended to substantiate numerous contacts of the suspected conspirators and their use of the telephones for which the application was made. Pen registers on four of these telephones and review of the logs of a radio beeper service used by the parties confirmed the numerous contacts of the co-conspirators and added to the probable cause supporting the application.

In addition, a seizure in Phoenix pursuant to court order located a storage facility for cocaine. A drug courier connected to Bruce Taylor’s Phoenix connection, Wayne Heinauer, was arrested at the Canadian border in possession of a kilogram of 80% pure cocaine. Bruce Taylor’s criminal record obtained from the FBI, Philadelphia and Upper Darby Police Departments was also made available to the court. The affiant also advised the court of certain interviews:

1. IRS Special Agent Stephen A. Gallon, Criminal Investigation Division, and IRS Revenue Agent Lloyd Rogers provided information concerning records and income tax returns of Lawrence Lavin and others.
2. Group Supervisor Frank A. Wickes, Jr., Drug Enforcement Agency (“DEA”), provided information regarding Francis Burns relating to a criminal investigation for violation of IRS laws; the information was based on his investigation of narcotics information from the Pennsylvania State Police, Montgomery County Detectives, and DEA. Wickes also provided information about the relationship of Francis Burns, Salvatore Spera and Anthony Venezia and provided the results of pen register records and a search pursuant to warrant resulting in seizure of cocaine and other cocaine arrests involving Francis Burns.
3. IRS Special Agent John P. McKenzie provided information from interviewing Anthony Venezia.
4. Timothy Woodward, Montgomery County Detective, a drug investigator, provided information from Salvatore Spera about drug activity of Francis Burns, execution of search warrants in which narcotics were seized from Burns, and several arrests of Burns on drug charges.

On the showing summarized above, the court found sufficient probable cause of drug transactions by use of the shopping center and home telephones in question to authorize the wiretaps applied for by the Government and challenged now by the defendants.

1. Alleged Recantation of Anthony Venezia

Agent Reed’s affidavit made considerable reference to information provided by Anthony Venezia, now incarcerated for the 1982 arson of a Dairy Queen restaurant located in the King of Prussia Shopping Mall, King of Prussia, PA. Venezia had testified before a federal Grand Jury in the Eastern District of Pennsylvania on December 7, 1983 and provided information regarding Francis Joseph Burns’ alleged involvement in a cocaine distribution conspiracy and other criminal offenses. Defendants averred that Venezia subsequently recanted his testimony; the Government did not advise this court during the course of the surveillance of any change in Venezia’s information or attitude. Defendants requested a hearing to determine whether Reed’s affidavit was knowingly and intentionally false when made or became false at any relevant time. This court reviewed evidence regarding Venezia’s alleged recantation and interviewed agent Reed and the Assistant United States attorneys involved in this investigation and the related investigation in which Venezia gave testimony under oath.

If defendants meet a threshold burden of making “allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations [are] accompanied by an offer of proof,” Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), then the tainted allegations contained in the affidavit must be set aside and the remainder of the affidavit reviewed to determine if it would have established probable cause at the time the order of surveillance issued. United States v. Geller, 560 F.Supp. 1309, 1321 (E.D.Pa.1983) (applying the set-aside remedy for tainted search warrants, Franks, 438 U.S. at 172, 98 S.Ct. at 2684, to wiretap affidavits). If there remains sufficient content in the wiretap application to sustain a finding of probable cause, no hearing is required. Id.

The Government’s application for interception of wire communications of eight telephones was granted on December 19, 1983. The Assistant United States- Attorney who applied for the Order was directed to provide the court with reports on the 7 th, 14th, 21st and 29th days following to show the progress made toward the objectives of the interception and the need for continued interception. These reports were made as ordered.

The affidavit of Charles L. Reed, Special Agent of the FBI, in support of the application on December 19, 1983 referred to certain information obtained from Anthony Venezia, an associate of Francis Burns, a target of investigation. It stated that IRS Special Agent McKenzie and Bureau of Alcohol, Tobacco, and Firearms Special Agent Thomas Bower interviewed Anthony Venezia; the reports of these interviews about firebombings included statements that Burns was committing arson to get back at someone for a drug deal and that Burns had given Venezia cocaine on two occasions. Venezia also reported that cocaine was obtained from Salvatore Spera, another of the alleged co-conspirators. Venezia said he was involved in arson incidents with Spera and Burns, one of which was drug related, and reported observing Spera in drug transactions and seeing large amounts of cash at the home of Burns. Venezia also told of a person Burns wanted Venezia to kill because money from a drug deal was owed by this person.

On December 7, 1983, Anthony Venezia had testified before a federal Grand Jury within the Eastern District of Pennsylvania, presumably to facts similar to those recited in Agent Reed’s affidavit. However, on December 30, 1983, after the Reed affidavit was presented to the court and the wire interception authorized, Venezia called an Assistant United States Attorney other than the one assigned to this case and said that there were things he wished to change in some statement and in his Grand Jury testimony. No later than January 23, 1984, the judge supervising the Grand Jury (also the judge trying the resulting indictments) was notified that the Assistant United States Attorney who had heard from Venezia proposed to bring Venezia to Philadelphia to explore this matter further.

That Assistant United States Attorney also notified Special Agent Reed. The Assistant United States Attorney assigned to this wiretap authorization also learned of these developments but did not report this information to the court in any progress report on the interception (filed on January 4, 9, and 16, 1984). On January 19, 1984, the Assistant United States Attorney assigned to this matter appeared before this court with Special Agent Reed for an ex parte hearing on whether or not the court would grant a requested seven-day extension. The transcript makes clear the court’s reluctance to extend the interception except upon a clear showing of demonstrated need (in fact, only six of the eight interceptions were permitted to continue). Notwithstanding the Agent’s knowledge of Venezia’s expressed desire to alter statements used in the probable cause affidavit, the court was not notified of this change in circumstance then or in the fifth and final progress report of January 27, 1984. This was poor judgment, but there is no evidence that the Government acted recklessly or deliberately misled the court.

At the time of the original application, even if the court could have been informed that Venezia desired to change his testimony, the interception would have been authorized. The results of the previous Phoenix wiretap application, interviews of persons other than Venezia, prior surveillance of the suspects, the search and seizure of cocaine pursuant to a warrant issued in Phoenix, the drug arrest arising out of the Phoenix investigation, and pen registers previously authorized by another judge of this court provided probable cause for the interception orders without regard to any of Venezia’s information. See United States v. Vento, 533 F.2d 838, 858-59 (3d Cir.1976) (finding probable cause based on substantial alternative grounds after setting aside allegedly tainted portions of a wiretap application).

The January 19, 1984 extension was granted based on information obtained from the original thirty-day authorization; interceptions were continued on only six telephones where conversations relating to illicit drug activity had been intercepted under the original authorization. The truthfulness of Venezia’s testimony would have made no difference to the court’s granting or refusing an extension.

There being no evidence that the Government acted recklessly or deliberately misled the court nor that Venezia’s information was false, and there being more than sufficient information for the court to have determined there was probable cause for interception even if the Venezia information were excised from the Reed affidavit, Id., the court denied the motion based on Venezia’s alleged recantation.

2. Disclosure of Lavin’s Income Tax Information

A portion of Agent Reed’s affidavit was based on information received from IRS Special Agent Stephen H. Gannon (Aff. p. 66 et seq.) and IRS Revenue Agent Lloyd Rogers. They advised Reed of information contained in Lavin’s income tax returns and subpoenaed tax records. Lavin, contending that the IRS did not have the authorization required by law to disclose this informátion to FBI agents and others, requested suppression of the wiretap evidence.

The Tax Reform Act of 1976, 26 U.S.C. § 6103 et seq., restricted disclosure of tax returns and related information. Congress established stringent procedures to be followed before IRS information is divulged to federal officers or employees for enforcing federal tax and other laws (6103(h) and (i)). These procedures must be followed even if IRS agents participate in an investigation coordinated by the Department of Justice, United States v. Chemical Bank, 593 F.2d 451 (2d Cir.1979). Unauthorized disclosure of tax information has been made a felony, 26 U.S.C. § 7213.

Section 6103(b)(4) defines tax administration as relating to the execution of Internal Revenue and related statutes. When a matter involves tax administration, disclosure can be made either by the Secretary of the Treasury or his delegate on his own motion or upon a request in writing from the Attorney General or his authorized delegate, § 6103(h). The Government must be able to trace the path of referral meticulously. United States v. Bacheler, 611 F.2d 443 (3d Cir.1979).

Disclosure for administration of federal laws not relating to tax administration may be made only upon an order of a federal judge who finds reasonable cause to believe that: a specific criminal act has been committed, tax return information contains probative evidence of a matter relating to the criminal act, and the information sought to be disclosed cannot reasonably be obtained from any other source or is the most probative evidence of a matter in issue, § 6103(i)(l)(B). If tax information is obtained in violation of the law, the appropriate remedy is suppression of the tainted evidence. Chemical Bank, 593 F.2d at 458.

The Lavin investigation did not involve tax administration (§ 6103(h)) as the Government contends. The statute’s definition of tax administration must be strictly construed, as “[w]e are never mindful that when Congress enacts a statute designed to limit government intrusion in the private affairs of its citizens, the statutory provisions must be followed scrupulously.” Bacheler, 611 F.2d at 447. A Title 26 Grand Jury investigation of Lavin had been authorized and the Government believed that the source of Lavin’s unreported income was drug transactions, but the instant investigation pertained to the enforcement of criminal statutes proscribing possession and distribution of controlled substances. Even if the disclosure were tax related, the Government did not proffer any evidence that the proper 6103(h) authorization was obtained. On the present state of the record, we must assume a violation of 6103(h) from the inadequacy of the Government’s response to Lavin’s motion. The Government conceded that the disclosure was not authorized in the manner § 6103(i) requires for non-tax administration disclosures,

Because of this improper disclosure, we have set aside those portions of the affidavit that rely on unauthorized IRS information. Having done so, we have found that even without this tainted information the Government presented more than sufficient probable cause for interception. Lavin’s motion to suppress for improper disclosure of tax information was accordingly denied.

3. Probable Cause of Ashley Road Wiretap

This court’s December 19, 1983 Order authorized interception of wire communications on eight public and private telephones. Defendants contest the application and affidavits offered in support of that order for lack of probable cause with regard to the telephones subscribed to by Sandra Ulino and located at 147 Ashley Road, (215-356-6939, subsequently changed to 215-356-8297); it is undisputed that Bruce S. Taylor and Suzanne Norimatsu-Taylor resided at that address.

A court may issue an order authorizing interception of telephone communications only if it finds probable cause to believe that a particular telephone will be used for communications concerning criminal offenses, 18 U.S.C. § 2518(3). Only an “aggrieved person,” 18 U.S.C. § 2510(11), may challenge a particular wiretap. An aggrieved person is a party to intercepted conversations or one named in the order authorizing the wiretap as a party against whom the investigation was targeted. Id. See also United States v. Fury, 554 F.2d 522 (2d Cir.1977), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978). Lavin was named in the order and he and Kim Norimatsu were both parties to conversations intercepted on this phone, so both are “aggrieved persons” with standing to challenge the interception of communications on this telephone.

A probable cause affidavit is to be examined as a whole and various portions of an affidavit may be corroborated by reference to other portions. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Agent Reed’s affidavit revealed sufficient probability that, the Ashley Road phone was being used for prohibited activity. Reed’s belief was drawn primarily from pen registers from June to December, 1983 authorized by Judge VanArtsdalen of this court.

The pen registers revealed that Bruce Taylor used his home telephone to place calls to numerous pay telephones, used by members of the alleged conspiracy (as confirmed by on-site surveillance), and to the Radio Broadcasting Company, used by members of the alleged conspiracy to contact one another by beepers. The prior Ashley Road pen register also revealed over 50 calls to Michael Schade who had contacted the Taylors over 180 times in a one-month period. Schade was believed involved in the alleged conspiracy based on a cryptic call to him from the Taylors on August 13, 1983 from the residence of Wayne Heinauer in Phoenix, Arizona. A wiretap on Heinauer’s phone had been authorized by an Order of Judge William Copple, U.S.D.C., Arizona; Heinauer was believed to be a purchaser of cocaine from Lavin, Taylor and other members of the conspiracy.

Reed’s affidavit provided sufficient probable cause that the Taylors were committing drug offenses enumerated in 18 U.S.C. § 2516 and that particular communications concerning drug offenses would be obtained by the interception of their home telephone. Even without the Venezia testimony and the information disclosed by the IRS, as discussed supra, there was a sufficient legal basis for the interception order and this motion was accordingly denied.

      . All defendants joined in the pretrial motions of all other defendants but all defendants other than Lavin and Kim Norimatsu have since entered pleas of guilty.

      . The indictments charge violations of 21 U.S.C. § 841(a)(1) (distribution or possession with intent to distribute a controlled substance), 21 U.S.C. § 843(b) (knowing and intentional use of a communication facility in committing drug violations), and 21 U.S.C. § 846 (conspiracy to violate the above-cited statutes).

      . Both Lavin and Norimatsu have standing to move for a hearing, since the indictments slemmed generally from evidence obtained by these wiretaps.

      . There was also no actual “recantation” and it has not been established that Venezia’s testimony before the Grand Jury was in fact false. When Venezia was returned to Philadelphia to reappear before the Grand Jury on April 16, 1984, he did not change his testimony but instead invoked his Fifth Amendment privilege and refused to answer questions, although he had been granted continuing use immunity by Judge Giles.

      . As noted, no government agent ever knew of Venezia’s expressed desire to change his story until December 30, 1983, eleven days after the original order was signed by the court.

      . Federal income tax returns are privileged but this privilege may only be asserted by one who has a legitimate interest in the confidential information contained therein. Thus, only Lavin had standing to complain of an invasion of the privacy of his tax returns.

      . Pen registers are, of course, consistently reliable sources of information, as opposed to human informants; yet, information from the latter may provide sufficient basis for probable cause. See Gates v. Illinois, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

      . Prior to Judge VanArtsdalen’s order of authorization, the DEA had a court ordered pen register on a pay phone at a Dairy Queen restaurant from August 26 — October 22, 1982.


author: BAKER, Chief Judge.

text:
    Qaid Rafeeq AZEEZ, Abdullah Muhammad, Plaintiffs, v. James W. FAIRMAN, et al., Defendants.
    No. 81-2184, 81-2185.
    United States District Court, C.D. Illinois, Danville Division.
    Jan. 22, 1985.

      Qaid Rafeeq Azeez, pro se.
    Abdullah Muhammad, pro se.
    Steven Kehoe, Asst. Atty. Gen., Chicago, Ill., for defendants.
   FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER

BAKER, Chief Judge.

The plaintiffs, Qaid Rafeeq Azeez and Abdullah Muhammad, who are inmates of the Illinois Department of Corrections, complain that the defendants’ policy of using the plaintiffs’ “committed names”, Stanley Russell and Jessie Fields, respectively, and punishing the plaintiffs for their refusal to use or respond to their committed names, unconstitutionally restricts their expression and exercise of their religious beliefs. The defendants, J.W. Fairman, J.E. Wright, and A. Dodge are administrators and correctional officers of the Illinois Department of Corrections. At the times of the occurrences complained of, the plaintiffs were residents of the Pontiac Correctional Center. The plaintiffs testified to disciplinary proceedings and denial of privileges associated with their use of their Muslim names. The plaintiffs argue that the Department of Corrections has shown no compelling state interest in refusing to acknowledge the plaintiffs’ religiously based name changes. Thus, the plaintiffs claim that the defendants unreasonably restricted their religious freedom.

The defendants assert that the “committed name” policy is based on the institutional concerns of security and administrative efficiency. According to the defendants, Muslim name changes are a “matter of personal opinion” and not a “religious necessity.” Thus, balancing the correctional interests and the inmates’ religious needs, the defendants claim that they have not unduly restricted the plaintiffs’ religious practices. The defendants state that the policy of granting identification cards and maintaining records with an a/k/a (also known as) designation grants sufficient recognition to the plaintiffs’ new names. In addition, the defendants claim they are entitled to official immunity.

I.

The plaintiffs testified, and the court finds, that members of the Muslim community, upon embracing A1 Islam, commonly adopt new names which reflect an “attribute of God” and which signify their new commitment. This practice has a basis in the Quran, and Wallace D. Muhammad, the chief minister of the nation of Islam, has urged the Muslim faithful to follow it. See Attachments to Plaintiffs’ Memo of Law.

Both plaintiffs have adopted Muslim surnames since their incarceration. The plaintiff Muhammad testified that he has been an adherent of Islam since the 1960’s, but did not change his name until his commitment to the Department of Corrections. The plaintiff Azeez has been through an Illinois judicial proceeding based on statute which resulted in a court order formally changing his name. Plaintiffs’ Exhibit 2. These name changes are a result of the plaintiffs’ sincere adherence to Al-Islam, and these name changes have religious significance to them.

Richard Ores, the identification supervisor at Pontiac, issued an identification card to Azeez, following his change of name, bearing only his Muslim name. The prison administrators then decided that an a/k/a designation should be used on the plaintiffs’ identification cards. The policy of the Department of Corrections was to recognize only “committed names”. Defendants’ Exhibits A-13, A-14, and M-3. The plaintiffs insisted that they wanted identification cards bearing only their Muslim names. The defendants, however, offered evidence, and the court finds, that the plaintiffs each accepted identification cards bearing both their Muslim and committed names during June of 1981. Plaintiffs’ Exhibits 8-9. The plaintiffs also insist that their institutional records should bear their Muslim names. Plaintiffs’ Exhibits 18-19.

However, the writ of mandamus issued by the state court commanding prison officials to recognize and honor plaintiff Azeez’s new name, further orders that no changing of institutional records is required. Plaintiffs’ Exhibit 2. The defendant, J.W. Fairman, who was Warden at Pontiac at the time, ordered that the plaintiffs were to use “committed names” on all institutional documents but could use their new religious names in addition to their committed names. Plaintiffs’ Exhibits 18-19.

The defendants justify the disciplinary action against the plaintiffs on the ground that the plaintiffs refused to obey valid orders. In addition, the defendants point out that the plaintiff Muhammad disfigured his identification card and threatened the institutional staff. Plaintiffs’ Exhibit 33.

The plaintiffs testified that they were denied access to the law library, Plaintiffs’ Exhibits 10, 11, and 23, the commissary, Plaintiffs’ Exhibits 4-7, 19 and 28, “sick call,” the clothing room, religious activities, Plaintiffs’ Exhibits 15 and 21, and notary services, Plaintiffs’ Exhibit 27, and that their identification cards were confiscated, Plaintiff’s Exhibit 20, because of the defendants’ refusal to recognize the plaintiffs’ name changes. The defendants offered evidence that privileges were refused only when the plaintiffs refused to sign their “committed names” along with their Muslim names.

II.

The defendants seemed to claim at trial that the plaintiffs occupied different positions in this case because the plaintiff Muhammad had not obtained a court order changing his name. That claim is without substance. The Illinois statutory provisions regarding name changes, Ill. Rev.Stat. ch. 96, are only permissive and do not abrogate the common law right to change a name without a formal application. Reinken v. Reinken, 351 Ill. 409, 184 N.E. 639 (1933); see also Thomas v. Thomas, 100 Ill.App.3d 1080, 1081, 56 Ill.Dec. 604, 427 N.E.2d 1009 (1981). The common law name change is valid, however, only if the change does not interfere with the rights of others by serving a fraudulent purpose. Chaney v. Civil Service Commission, 82 Ill.2d 289, 294, 45 Ill.Dec. 146, 412 N.E.2d 497 (1980). The defendants made no showing of any fraudulent purpose behind the plaintiff Muhammad’s name change, although they alleged generally that name changes could be confusing. That argument goes:, more toward the defendants’ institutional security and efficiency arguments justifying a “committed name” policy rather than to show a requirement for Muhammad to change his name in a court proceeding. The plaintiffs stand on the same footing as each other in this case.

The defendants also dispute, to a certain extent, the reasons underlying the plaintiffs’ name changes. In particular, plaintiff Muhammad, a long-time adherent of Islam, was questioned as to why it took him so long to change his name. Muhammad testified as to the use of “X” by followers of Malcolm “X” to signify cancellation of the names used prior to accepting Islam. Muhammad said that current religious practice requires the use of an Islamic name. The defendants argue that Muslim name changes are “purely a matter of personal opinion and not a matter of religious necessity”. The defendants state many Muslims have never changed their names. Defendants’ Brief, Page 4.

In Masjid Muhammad-D.C.C. v. Keve, 479 F.Supp. 1311 (D.Del.1979), the leading reported case regarding Muslim name changes among prisoners, the district court discussed change of name and its role within Islam. The court stated that “protected religious expression encompasses more than orthodox or institutionalized practices.” Id.- at 1323. “To be protected, a particular form of religious expression need not be mandated by one’s religion or even endorsed by a majority of its adherents, so long as it is an expression of a sincere, religiously based conviction.” Id. See also Stevens v. Berger, 428 F.Supp. 896, 899 (S.D.N.Y.1977); Theriault v. Silber, 391 F.Supp. 578, 580 (W.D.Tex.1975). Neither federal courts nor prison administrators are authorized to determine the orthodoxy of religious beliefs and expressions. Masjid Muhammad, 479 F.Supp. at 1323; see also Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975).

The recent case of Salahuddin v. Coughlin, 591 F.Supp. 353 (S.D.N.Y.1984), is distinguishable. In Salahuddin, two plaintiffs testified that they did not use their Muslim names consistently and that use of their committed names was not religiously offensive to them. Another plaintiff had used several Muslim names and desired future Muslim name changes at his whim. Id. at 358. Accordingly, the court upheld the policy of recognizing only statutory name changes in order to avoid confusion and simplify record keeping. Id. at 359.

The plaintiffs’ testimony in this case revealed that acknowledgment of their non-Muslim names is religiously offensive to them. The plaintiffs testified that their Muslim names reflect their new spiritual identities and the types of lives they hope to lead. They interpret the Quran as condemning the use and recognition of their old surnames. Inconsistency of religious practice among Muslims regarding the adoption of religious names and the acknowledgment due to previous non-Muslim names certainly is not fatal to the plaintiffs’ case. See Masjid Muhammad, 479 F.Supp. at 1323. Thus, the adoption of new Muslim names is part of the practice of the plaintiffs’ Islamic faith and is sufficient to invoke First Amendment protection. See Africa v. Pennsylvania, 662 F.2d 1025, 1029-30 (3rd Cir.1981). In addition, no evidence was received that the plaintiffs were not using their adopted Muslim names in a consistent manner.

The defendants further assert that the “committed name” policy, including the use of a/k/a designations, serves a compelling state interest in institutional security and efficient prison administration. The defendants claim that the institutional interest in “maintaining security against confusion and misidentification and preventing the potential for the change of names for fraudulent purposes” outweighs the plaintiffs’ interest in free religious expression.

To establish a violation of religious rights, a prisoner must prove that a legitimate religious practice is being unduly restricted by prison policy or regulations. Chapman v. Pickett, 491 F.Supp. 967, 971 (C.D.Ill.1980), rev’d other grounds 645 F.2d 73 (7th Cir.1980), rev’d other grounds, 676 F.2d 697 (7th Cir.1982). The government then must show that the restriction arises from a compelling state interest in security, discipline, or administration, and that it is among the least restrictive means reasonably available to prison officials. Id. (Emphasis added.) Security, discipline, and administration are, by definition, compelling state interests. Id.

In addition, the Seventh Circuit in Madyun v. Franzen, 704 F.2d 954 (7th Cir.1983), held that prison rules which incidentally restrain the free exercise of religion are justified only if the regulation has an “important objective” and the restraint on religious liberty is “reasonably adapted” to achieving that objective. Id. at 959-60. Prison officials may legitimately impose restrictions on religious practices which would be unconstitutional in other settings. Childs v. Duckworth, 705 F.2d 915, 920 (7th Cir.1983). The issue is whether the restrictions are needed for the achievement of legitimate correctional policies and goals. Id.; see also Pell v. Procunier, 417 U.S. 817, 827 (1974). The Chapman factors of security, discipline, and administration may be presumed to be “important objectives” within the holding of Madyun. Of course, prison officials generally are entitled to judicial deference in the administration of their institutions. Bell v. Wolfish, 441 U.S. 520, 540, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979).

Prison officials, however, must allow “a reasonable opportunity” for a prisoner to pursue his religious faith. See Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). What constitutes “a reasonable opportunity” must be evaluated in light of the institutional interest in security. See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). A restriction impinging on First Amendment rights must be carefully scrutinized to determine the extent to which it is needed to effectuate institutional policies and goals. These institutional goals must be accommodated with prisoners’ interests in their First Amendment right to adhere to their faiths. Childs v. Duckworth, 705 F.2d 915, 920 (7th Cir.1983). As in Masjid Muhammad, however, it does not follow that the plaintiffs are entitled to have prison officials use their new names for all purposes. The free exercise clause protects one’s own religious expression and restricts the activities of others only to the extent needed to afford that protection. Masjid Muhammad-D.C.C. v. Keve, 479 F.Supp. 1311, 1324 (D.Del.1979). A state, however, may identify its citizens by any method it chooses for its own record keeping purposes, even though the method may be offensive to some. Id.

Prison officials are entitled to deference as to how they keep the institutional records of the plaintiffs, even though many prisoners are committed with more than one name or alias. In addition, the state court mandamus order provided that prison officials were not required to alter any records after the name change of plaintiff Azeez. The plaintiffs are not entitled to relief requiring the defendants to use Muslim names for institutional record keeping purposes. See Barrett v. Virginia, 689 F.2d 498, 503 (4th Cir.1982); Akbar v. Canney, 634 F.2d 339, 340 (6th Cir.1980) (per curiam).

The defendants, however, have required the plaintiffs to use religiously offensive, non-Muslim names to describe themselves under the threat of punishment or the withdrawal of privileges. To justify such a requirement, the defendants must show that it is “reasonably adapted” to achieving an important institutional objective. See Madyun v. Franzen, 704 F.2d 954, 959-60 (7th Cir.1983). The district court in Masjid Muhammad stated that, since the First Amendment protects an inmate’s right to legal recognition of an adopted religious name, prison authorities may not condition the receipt of services or benefits on waiving such a right absent a compelling state interest. Masjid Muhammad, 479 F.Supp. at 1324; see Akbar v. Canney, 634 F.2d 339, 340 (6th Cir.1980) (per curiam); Salahuddin v. Carlson, 523 F.Supp. 314, 316 (E.D.Va.1981). The “committed name” policy was used occasionally in such a manner, according to the testimony and several exhibits received at trial.. The plaintiffs were denied access to the commissary, the law library, “sick call”, the clothing room, religious activities, and notary services because their Muslim names appeared on call slips or other forms. See Transcript Testimony of Azeez and Muhammad and Plaintiffs’ Exhibits. 4-7, 10-11, 15, 19, 21, 23, 27, and 28. The plaintiffs are entitled to relief for those violations.

Similarly, the state may not compel a citizen to choose between engaging in conduct or expression which is religiously offensive or being punished. Masjid Muhammad, 479 F.Supp. at 1325. Again, absent an important objective and a policy reasonably tailored to the achievement of that objective, a state may not punish an inmate for failing to acknowledge a particular name or for failing to perform a task where to do so would involve the acknowledgment of a religiously offensive name. Id. This reasoning does not mean that the plaintiffs are free to disregard orders whenever a staff member fails to use the Muslim names or that they may not be disciplined if they disregard such orders. Similarly, prisoners are not free to act disrespectfully or create disorder when their non-Muslim names are used. Id. It simply means that an inmate may not be disciplined for his failure to acknowledge his non-Muslim name. Id.

Plaintiff Azeez stated that he was disciplined for failing to acknowledge his old surname and had his identification card confiscated by Officer Dodge. Plaintiffs’ Exhibit 20. Again, relief is proper for this incident involving the forced acknowledgment of the non-Muslim name.

The court concludes that the a/k/a designations for the receipt of privileges and record keeping is a reasonable middle ground between absolute recognition of the plaintiffs’ Muslim names and the prison interests of order, security, and administrative efficiency. Prison officials at Pontiac started the use of a/k/a designations for the plaintiffs due to the incidents which form the basis of this civil rights action. The plaintiffs have accepted identification cards bearing both their “committed” and Muslim names. The a/k/a policy seems reasonably related to the need for accurate record keeping and its effect on order within the institution, i.e., keeping track of the inmates and their transactions. The policy also recognizes the name changes. In Masjid Muhammad, the religious names were given no recognition at all. The a/k/a policy may be viewed as reasonably related to the institutional interest of order and administration, the pursuit of which incidentally restricts the plaintiffs’ religious expression.

III.

The defendants are not entitled to official immunity in this case. The plaintiffs, to overcome a claim of qualified immunity, must show that their rights were clearly established at the time of the challenged conduct. The reasonableness of the defendants’ conduct must be measured by reference to clearly established law. No other circumstances are relevant to the issue of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Davis v. Scherer, — U.S. -, -, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). Crowder v. Lash, 687 F.2d 996, 1006-1007 (7th Cir.1982).

In Chapman v. Pickett, 491 F.Supp. 967 (C.D.Ill.1980), rev’d on other grounds 645 F.2d 73 (7th Cir.1980), rev’d on other grounds 676 F.2d 697 (7th Cir.1982), the court established a test for determining when a prisoner’s religious beliefs have been violated. A plaintiff must show that a legitimate religious practice is being unduly limited by prison regulations. The burden of proof then shifts to the government to show that the inference arises from a compelling state interest in prison security, discipline, or administration, and that it is among the least restrictive means reasonably available to prison officials. Id. at 971. (Emphasis added.) Security, discipline, and efficient administration are, by definition, compelling state interests. Id. at 971 n. 1.

This test, established more than four years ago, can be viewed as removing any objective belief in immunity for the challenged conduct in this case. It is well-settled law that first amendment rights have a preferred status. Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). In addition, the Seventh Circuit in Madyun v. Franzen, 704 F.2d 954 (7th Cir.1983), further refined the examination of potential violations of prisoners’ religious rights. Incidental restrictions on prisoners’ religious practices are justified only if the restriction has an “important objective” and the restraint on religious liberty is “reasonably adapted” to achieving that objective. Id. at 959-60. The defendants cannot claim official immunity for their alleged actions in light of these well-established standards within the Seventh Circuit.

IV.

The plaintiffs are entitled to damages for the substantive constitutional violations. The district court in Masjid Muhammad awarded the plaintiffs nominal damages of $1.00 each for their constitutional injuries, pursuant to the holding in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The Seventh Circuit, however, has held that the rationale of Carey applies only to procedural due process violations, and not to violations of substantive constitutional rights. Owen v. Lash, 682 F.2d 648, 653 (7th Cir.1982). Damages can be presumed where there is an infringement of a substantive constitutional right. Lenard v. Argento, 699 F.2d 874, 889 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983). The court should consider compensation for harm, if any, resulting from the constitutional violation and appropriate compensation for the constitutional violation itself. Walsh v. Brewer, 733 F.2d 473, 477 (7th Cir.1984).

In Crawford v. Garnier, 719 F.2d 1317 (7th Cir.1983), the Seventh Circuit distinguished Lenard and Owen and listed elements of compensable injury for substantive constitutional violations, including humiliation and personal' indignity. Id. at 1324-1325; see also Kincaid v. Rusk, 670 F.2d 737, 746 n. 16 (7th Cir.1982). In this case, the plaintiffs suffered affronts to their religious faith and personal dignity because of the defendants’ failure to recognize their Muslim names. Accordingly, the plaintiffs’ injuries fall within the elements enumerated in Crawford and are compensable. See also Grimes v. Smith, 585 F.Supp. 1084, 1093 (N.D.Ind.1984) (Posner, Circuit Judge, sitting by designation).

Declaratory relief under the circumstances is also appropriate. See Chapman v. Pickett, 586 F.2d 22, 26 (7th Cir.1978). While not specifically requesting declaratory relief in their complaints, the plaintiffs request that the defendants acknowledge their adopted Muslim names. The court construes this request as one for declaratory relief and finds that the plaintiffs are entitled to such relief. See F.R. Civ.P. 54(c). Accordingly, the plaintiffs’ adopted Muslim names are entitled to First Amendment protection as an integral part of the plaintiffs’ Muslim faith and religious practices. The plaintiffs are entitled to use these names without the threat of punishment or the withdrawal of privileges.

The plaintiffs’ claim for injunctive relief is moot. The plaintiffs have accepted identification cards bearing both their Muslim and “committed names” and the court has concluded that the “a/k/a policy” does not work a First Amendment violation. The court also has concluded that the plaintiffs have no constitutional right to require the defendants to alter institutional records. In addition, the plaintiffs apparently are no longer at Pontiac. Azeez is at Stateville, and Muhammad is either at Stateville or Logan.

IT IS THEREFORE ORDERED that judgment be entered in favor of the plaintiffs and against the defendants in the sum of $300 for the deprivation of their religious liberties.

IT IS FURTHER ORDERED and declared that the plaintiffs’ adopted Muslim names are entitled to First Amendment protection as limited in this memorandum opinion.

IT IS FURTHER ORDERED that the plaintiffs’ claim for injunctive relief be, and hereby is, denied.

Clerk to enter judgment accordingly.


author: MOTLEY, Chief Judge.

text:
    Neil RULLO, Plaintiff, v. Ramon RODRIGUEZ, Chairman of New York State Board of Parole, Gerald M. Burke, Commissioner, Joseph V. Salo, Commissioner, and Manuel Parron, Commissioner, Defendants.
    No. 84 Civ. 7432(CBM).
    United States District Court, S.D. New York.
    Jan. 22, 1985.

      Irwin Klein, New York City, for plaintiff.
    Robert Abrams, Atty. Gen. of the State of N.Y. by Caren S. Brutten, Asst. Atty. Gen., New York City, for defendants.
   MOTLEY, Chief Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This action is now before the court on the application of plaintiff, Neil Rullo, for a preliminary injunction to restrain defendants Ramon J. Rodriguez, Chairman of New York State Board of Parole, Gerald M. Burke, Commissioner, Joseph V. Salo, Commissioner and Manuel Parrón, Commissioner from continuing plaintiff’s detention and preventing plaintiff’s participation in a temporary work release program.

Plaintiff, Neil Rullo was sentenced on May 15, 1981 in New York County Supreme Court to a term of one year to three years for criminal sale of a controlled substance in the third degree, class A-III felony. Plaintiff was also sentenced on April 30, 1982 to a term of three years to life for criminal possession of a controlled substance second degree, Class A-II felony. Both sentences were to run concurrently because the charges arose from the same arrest.

On March 27,1983, Neil Rullo applied for work release based on the earliest release date of May 13, 1984. On June 13, 1983, plaintiff was permitted to participate in the temporary work release program pursuant to Article 26 of the Corrections Law since he was eligible for parole within one year. Subsequently, he was transferred to a less restrictive facility. Plaintiff commenced employment on June 20, 1983 with Albert’s Limosine and continued for a period of seven months just prior to the sale of the company. New employment was secured with J.B.J. Flooring by plaintiff for an apprenticeship position.

Plaintiff appeared before the Parole Board on March 27, 1984 for his initial parole board hearing. He was advised of the Parole Board decision to extend his minimum period of incarceration for two years. The Parole Board scheduled the next hearing for March, 1986. Plaintiff was removed from the work release program and subsequently transferred to a maximum security facility on March 30, 1984. On April 2,1984, he was transferred to Downstate where he presently resides.

On April 18, 1984, plaintiff brought a petition for writ of habeas corpus in the Supreme Court, Westchester County, challenging the Parole Board decision denying plaintiff’s early release. This petition for habeas corpus was denied by Judge Marbach on June 7, 1984 and plaintiff filed Notice of Appeal from that decision on June 8, 1984. Apparently, his appeal presently is pending.

On October 17, 1984, plaintiff commenced this action under 42 U.S.C. Section 1983. Plaintiff claimed that he was denied a due process hearing when the Parole Board determined to extend his parole date thus rendering him ineligible for participation in the temporary work release program. Plaintiff contends that he was not given notice of his removal from the work release program and that he was not given a hearing or written statement of the reasons for such removal. Plaintiff further asserts that he merely was informed verbally that when the Parole Board extended his parole release date, beyond one year, he was thereby rendered ineligible for continued participation in the program.

In addition, he contends that he did not engage in the type of behavior or violate any rules that would require removal from the program. Plaintiff contends that the Parole Board’s decision to extend his parole release date was based solely on the serious nature of the initial offense. The reason stated by the Parole Board was that the “guidelines do not account for the significant amount of drug involved in this case.”

For the reasons set forth below, plaintiff's motion for preliminary injunction is denied and the action is hereby discontinued.

DISCUSSION

Plaintiff’s petition for writ of habeas corpus is based on the ground that plaintiff has been unlawfully deprived of his liberty by the decision of the Parole Board extending his parole release date and thereby rendering him ineligible for continued participation in the temporary work release program. This action is now before the court on plaintiff’s motion for preliminary injunction. On November 28, 1984, the parties came before the court for oral argument after which the court ordered the parties to submit stipulated facts regarding the prior proceedings relevant to this action. Such facts are incorporated herein.

On April 18, 1984, Plaintiff petitioned the Supreme Court of the State of New York, Westchester County, for a writ of habeas corpus. The petition was based on the ground that he was unlawfully deprived of his constitutional liberty by the March 27, 1984 decision of the Parole Board denying him parole and extending his incarceration two years which resulted in his removal from the temporary work release program. In this petition, Plaintiff contended that the Parole Board’s decision was arbitrary, capricious, and an abuse of discretion.

Approximately four months later, plaintiff commenced the present action in this Court seeking essentially the same relief for the claimed deprivation of due process. The defendants submitted a supplemental memorandum of law in which they argue that the issues raised by plaintiff either were or could have been litigated in his state court proceeding and that the state court judgment therefore bars plaintiff from bringing the same claim to a federal forum. This contention is correct.

Under 28 U.S.C. § 1738, federal courts must give the same full faith and credit to prior state-court judgments as would the courts of the state:

[A]cts, records and judicial proceedings or copies ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

In suits under various provisions of the Civil Rights Act, the federal courts have accorded state-court judgments the preclusive effect required by Section 1738 with respect to claims actually litigated. See, e.g., Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982) (“Section 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State for which the judgments emerged.”); Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); Mitchell v. National Broadcasting Co., 553 F.2d 265, 274 (2d Cir.1977).

The Supreme Court has held that Section 1983 does not override state preclusion and guarantee a federal forum for federal claims once a proceeding has commenced in state court. Under the doctrine of res judicata, a plaintiff may be barred from relitigating or litigating a federal claim that was either litigated or could have been litigated, in the prior state court proceeding. Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 896-97, 79 L.Ed.2d 56 (1984). Since Section 1983 claims may be litigated in state courts, Maine v. Thiboutout, 405 A.2d 230 (Me.1979), aff’d 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), New York law may be applied in determining whether plaintiff is barred from bringing this action in federal court.

The long-standing principle in New York law has .been that a judgment in the first action prevents relitigation by the same parties of the same claim in a subsequent action. Where the same foundation facts serve as a predicate for each proceeding, differences in legal theory and consequent remedy does not create a separate cause of action and res judicata applies to bar the second action. E.g., Matter of Reilly v. Reid, 45 N.Y.2d 24, 30, 407 N.Y.S.2d 645, 649, 379 N.E.2d 172, 176 (1978) (“[T]he essential identity of petitioner’s two causes of action requires invocation of the doctrine of claim preclusion. To conclude otherwise would be to afford petitioner a second opportunity to obtain substantially the same relief he was denied in the prior proceeding, based on the same actions of the respondents. This is precisely the type of repetitive litigation the doctrine of claim preclusion is designed to avoid”). This rule of preclusion not only prevents litigation of issues actually litigated, but also issues which might have been litigated. Statter v. Statter, 2 N.Y.2d 668, 673, 143 N.E.2d 10, 12-13, 163 N.Y.S.2d 13, 17 (1957); Schuylkill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 306-7, 165 N.E. 456, 457 (1929).

Plaintiff in this case has brought both actions against one of the same parties, the Commissioner of New York State Board of Parole, Ramon J. Rodriguez, and raises the same issues previously litigated in the state-court proceeding. In the state habeas corpus proceeding, plaintiff pleaded as follows:

1. [t]he Parole Board’s decision to extend petitioner’s minimum period of incarceration by two years was an arbitrary and capricious abuse of discretion which failed to comply with the requirements of Executive Law section 259(i), demonstrating a gross impropriety bordering on irrationality, rendering the decision as erroneous and in violation of law.
2. The effect of the Parole Board’s adverse decision to extend petitioner’s minimum period of incarceration by two years was to terminate his participation in the work release and furlough programs without cause, which constituted a further restraint upon his liberty and deprived him of a statutory privilege without due process of law.
3. The pervasive effect of the Parole Board’s adverse decision ... amounts to an infliction of cruel and unusual punishment abrogating petitioner’s Eighth Amendment constitutional rights to be free from cruel and unusual punishment. (Defendant’s Affirmation, December 11, 1984, Exhibit 2, p. 2-3.)

Similarly, plaintiff’s complaint in this action states:

This is an action under Section 1983 of 42 U.S.C. for declaratory relief, injunctive relief and monetary damages. Defendants ... while acting under color of Law intentionally deprived plaintiff of his freedom in contravention of his rights. (Complaint p. 1.) Plaintiff assumed that once he was admitted to the work release program he would remain so until he was paroled, unless he committed some infraction while participating in the program ____ His reliance on continued participation in the program was based on the laws of New York, statutory, regulation, judicial decisions and previous customs and practices as to other prisoners. (Complaint p. 4.)

A review of the state-court record discloses that the state court denied the relief sought in plaintiff’s petition and the petition was dismissed on June 7, 1984.- See Neil Rullo, 81-A-2575 v. David R. Harris, Suyerintendent of Taconic Correctional Facility, and Ramon J. Rodriguez, Commissioner of New York State Board of Parole, Index No. 6742/84, Order (Sup.Ct. West.Cty. June 8, 1984). The state court found that the Parole Board adequately set forth the reasons for denial of parole and that the Board was entitled to rely on the seriousness of petitioner’s offense in making the determination. The court further found that the fact that the petitioner’s incarceration was extended for a period beyond the suggested parole guidelines was not determinative since the guidelines serve only to aid the Parole Board. The court declined to interfere with the Parole Board’s decision since the decision was not one of irrationality bordering on impropriety. Finally, the court in denying plaintiffs challenge that the Parole Board lacked the authority to extend incarceration for a period of time that rendered petitioner ineligible to continue in a work release program to which he had been admitted, stated that “the argument that a prisoner admitted to a work release program may not be held by the Board for more than one additional year finds no support in the governing statutes and regulations and to the extent that People ex rel. Silberstein v. Hammock (113 Misc.2d 1030 [450 N.Y.S.2d 687]) indicates otherwise, the Court respectfully declines to follow it.”

Plaintiff is also precluded from asserting this action under the doctrine of collateral estoppel, or issue preclusion, because he had a full and fair opportunity to litigate the issues in the present action in the earlier state court proceeding. “Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). In McCurry, the Supreme Court held that the doctrine of collateral estoppel applies to suits brought under Section 1983.

The fact that the earlier state court proceeding was an action in habeas corpus does not limit this court’s application of res judicata. The Second Circuit, in Williams v. Ward, 556 F.2d 1143, 1153 (1977) stated that “even a judgment in habeas can effect issue preclusion in a Section 1983 action if the issue was litigated and the decision was on the merits.” In Williams, the court reasoned that the Supreme Court’s decision in Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S.Ct. 1827, 1840, 36 L.Ed.2d 439 (1973), wherein the Court concluded that “res judicata has been held to be fully applicable to a civil rights action brought under Section 1983”, should not apply any differently where the first judgment is a federal habeas.

Furthermore, it is well recognized that the doctrine of mutuality of parties as a limitation on the scope of collateral estoppel, whereby a party could not use a prior judgment to estop another party in a later action unless both parties were bound by that judgment, has eroded. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Rather, the Second Circuit has adopted the “full and fair opportunity” test to determine whether one not a party to an earlier proceeding may raise the defense of collateral estoppel with regard to issues litigated in that prior proceeding.

Under this test the defense is available if the party against whom it is raised has had a full and fair opportunity to contest the issue in a prior action and the issue which was decided in the prior action is identical to the issue which is to be decided in the action in which the defense is raised.

Ritchie v. Landau, 475 F.2d 151, 155 (2d Cir.1973). See also, Hazzard v. Weinberger, 382 F.Supp. 225, 227 (S.D.N.Y.1974).

Plaintiff fails to present any issues not previously litigated in the prior state court proceeding. In that proceeding plaintiff unsuccessfully contested the Parole Board’s decision to extend his parole date which effectively rendered him ineligible to participate in the temporary work release program and terminated his participation in the work release program. Similarly, in this action, he seeks restoration to the work release program. Accordingly, this court concludes that the plaintiff is precluded from relitigating this action on the same claims and issues previously litigated in state court under the doctrines of res judicata and collateral estoppel.

Plaintiff’s motion for preliminary injunction is denied and the action is hereby discontinued.

SO ORDERED.