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THOMAS PUGH, JR., ERROL ENNIS, EDWARD HAMIL and CLAY CHATIN,
Plaintiffs, -v- GLEN GOORD, Commissioner of the New York
State Department of Correctional Services, WILLIAM MAZZUCA,
Superintendent of Fishkill Correctional Facility, ADA PEREZ,
Deputy Superintendent of Programs for Fishkill Correctional
Facility, LEWIS GOIDEL, Grievance Supervisor for Fishkill
the New York State Department of Correctional Services, and
WARITH DEEN UMAR, Administrative Chaplain of the New York
State Department of Correctional Services, Defendants.
00 Civ. 7279 (GEL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
184 F. Supp. 2d 326
December 28, 2001,
Decided
January 3, 2002, Filed
OPINION AND ORDER
GERARD E. LYNCH, District
Judge:
Plaintiffs Thomas Pugh, Jr., Errol Ennis, Edward Hamil and Clay Chatin
bring this action under 42 U.S.C. § 1983, pro se, alleging that the defendants,
several senior administrators in the New York State Department of Correctional
Services ("DOCS") and the Fishkill Correctional Facility
("Fishkill"), violated
plaintiffs' First and Fourteenth Amendment rights. The matter is before the
Court on plaintiff's motion for a preliminary injunction. For the reasons that
follow the motion is denied and the case will be dismissed.
Background
Plaintiffs
are inmates housed in Fishkill, who practice the Shi'a branch of Islam.
Affidavit testimony provided in conjunction with the present motion establishes
the following essentially undisputed facts. The principal tenets of Islam,
regardless of sect, are (1) belief that Allah is God; (2) acceptance that the
Qur'an is the book of guidance and contains the words of Allah; (3)
acknowledgment of the Prophet Muhammad as the final messenger and Prophet of
Allah; (4) acceptance of the "five pillars" of Islam -- Shahada (declaration
of faith), Salat (prayer), Zakat (Charity), Saum (fasting) and Hajj (pilgrimage
to Mecca); and (5) the practice of Qiblah, or praying facing Mecca. (Cohen Aff.
Ex. A P 16.) All Muslims apparently accept these principles, whether they are
Sunni, Shi'ite, or belong another of the multiple sects that constitute Islam.
(Id.) The principal difference between Sunnis and Shi'ites is the significance
which Shi'ites afford the twelve imams, or religious leaders, who came after
the Prophet Muhammad. (Cohen Aff. Ex. A at 4, n.2.) Shi'ites consider these
twelve imams to be the legitimate successors to Muhammad and divine in nature,
while Sunnis do not. (Id.) According to Pugh, Shi'ites are also forbidden to
follow a deceased imam's religious
decrees and explanation of religious doctrine, and consequently are only bound
by the interpretations of religious doctrine adopted by succeeding Shi'ite
religious leaders, or Ayatullahs. (Pugh Aff. P 10 & Ex. B.) Despite their
distinct clerical traditions, Shi'a and Sunni religious doctrines remain
similar though not identical. (Id.)
DOCS has traditionally accommodated religions with significant
inmate followings to the greatest extent possible, and Islam is among these
religions. (LoConte Aff. P 3, 4.) The DOCS program for Muslim inmates consists
principally of a four-point program which is non-sectarian and focuses on
elements common to all sects of Islam: (1) Jum'ah (Friday noon services); (2)
Islamic studies classes; (3) Islamic introduction services; and (4) Majlis Shu'urah
(consultation and religious planning). (Cohen Aff. P 18.) Additional
accommodations include meeting special dietary needs and allowing religious
symbols and materials (such as religious publications, prayer rugs and prayer
beads). (Id. P 19.) Muslim inmates are allowed to pray five times a day, and to
observe three Muslim holidays: Ramadan (the month of fasting), Id-Ul-Fitr (the feast or fast-breaking at
the end of Ramadan) and Id-Ul Adha (the feast of sacrifice). (Id. P 19.) During
the month of Ramadan, there are arrangements that allow inmates to break their
fast after sundown, and during the other recognized holidays, Muslim inmates
are allowed to have congregate prayer services, communal festivities and family
visits. (Id.) Most DOCS facilities also have Muslim chaplains on staff to
provide religious guidance. (Id. P 20.) Inmates may even receive spiritual
advice from the outside religious community when a DOCS chaplain cannot fulfil
the inmates' spiritual [*329] needs, and outside religious leaders can
become spiritual advisors as registered volunteers. (Id.; LoConte Aff. P 22.)
The DOCS program has been approved of by the Fiqh Council of North America, a
nationally recognized board of Muslim scholars and educators, that is
recognized as authoritative by all major Muslim organizations in the United
States, in which all sects, including Shi'ites, are represented and play
leadership roles. (Cohen Aff. Ex. A P 24.)
In addition to these general programs for accommodating
religious practices, DOCS has in place provisions for accommodating
individualized beliefs of inmates not addressed by the general program of the
religious group to which they belong, in a manner consistent with the
limitations of the prison setting and resources. (LoConte Aff. P 19). Inmates
are allowed to pray and study in their cells, and receive religious
publications, so long as the material does not incite violence. (Id. P 20.)
Furthermore, DOCS accommodates religious dietary needs, including, for example,
permitting Muslim inmates to bring food back to their cells in order to break
their cycle of fasting during Ramadan. (Id. P 24.) n1
Inmates also have access to a grievance procedures for filing
both formal and informal complaints against any religious leader who an inmate
believes is arbitrarily denying him access to religious privileges. There is
both a facility-based grievance board and a central grievance board based in
Albany which respond to formal grievances. (Id. P 12 & Ex. A.) Although
neither of these boards have the authority to dismiss religious leaders
employed by DOCS, they are responsible for working out disputes between inmates
and religious leaders, and bringing any problems to the attention of prison
officials who have the authority to take further corrective action. (Id.) Where
a particular religious leader has been the subject of multiple complaints, the
grievance boards contact prison officials, who investigate the matter and may
take disciplinary action where appropriate. (Id. P 13.) In addition, informal
complaints may be lodged with coordinating Chaplain at the particular facility,
who also may take the appropriate corrective action. (Id. P 15.) Moreover,
since adoption of the specific Protocol concerning accommodation of Shi'a
adherents, discussed below, it has been specific DOCS policy that Muslim
chaplains may be formally disciplined for disparaging Shi'a beliefs. (Id. Ex.
D.)
Despite the
existence of this program, and the associated grievance procedure, plaintiffs
allege that the religious program for Muslims impermissibly infringed upon
their ability to practice the Shi'a faith. Specifically, plaintiffs allege that
when they approached the responsible officials at Fishkill to accommodate their
religious beliefs, they were informed that they could teach and practice their
faith in the area used by Sunni Muslims, and were directed to spiritual
guidance from Imam Muhammad, the Islamic Coordinator for all Muslim inmates at
Fishkill, who is a Sunni Muslim. Plaintiffs' request for separate Ramadan services
were similarly rebuffed, and they were again directed to contact Imam Muhammad
for the appropriate religious services. They have also alleged that a request
by the Islamic Guidance Center of Brooklyn, apparently a Shi'a religious
organization, to volunteer their [*330]
services to the facility were denied, and that their formal grievances concerning these matters
have been summarily dismissed. Finally, plaintiffs allege that Imam Muhammad has exhibited an
overt hostility to the Shi'a faith, and that hostility has been evidenced not
only in derogatory words, but also in Shi'ite inmates' being denied the right
to celebrate Eid Ghadir Khum, apparently one of the biggest and most important
Shi'a festivities. n2
The
purportedly discriminatory conduct of Imam Muhammad does not appear to have
been an isolated incident, and in fact was the basis for a separate litigation
in Cancel v. Goord, 278 A.D.2d 321, 717 N.Y.S.2d 610 (2d Dep't 2000),
leave to appeal denied, 96 N.Y.2d 707, 749 N.E.2d 207, 725 N.Y.S.2d 638(N.Y.
2001). That case was brought in New
York State court by another Shi'ite inmate at Fishkill who is not a party to
the present action, and involved a similar claim to the one presented here,
namely that Imam Muhammad routinely proselytized Shi'ite inmates and denigrated
Shi'a beliefs, and did not permit the study of or recognize differences between
sects of Islam. The petitioner alleged that as a consequence of Imam Muhammad's
supervision, the Muslim program at Fishkill, as then administered, was
incompatible with and ultimately antagonistic to the Shi'a faith. The Appellate
Division affirmed the lower court ruling that the DOCS treatment of Shi'ite
inmates was "arbitrary and capricious" and violated the right to free
exercise of religion enshrined in New York's Corrections Law § 610. The Court
ordered DOCS to conduct administrative proceedings "to determine the
manner in which to best afford Shi'ite inmates separate religious services,
under appropriate Shi'a religious leadership, in a time and placed that comport
with legitimate penalogical concerns." Cancel, 717 N.Y.S.2d at 612.
In the
aftermath of the Cancel case, DOCS consulted with numerous Islamic
organizations all over New York State
to seek appropriate direction in matters of Islamic doctrine, tradition and
ritual. (LoConte Aff. PP 43-44.) As part of the effort to satisfy the
Appellate Division's order, on April 19, 2001, senior DOCS officials met with
Shayk Fadhel Al-Sahlani, a religious scholar at the Imam Al-Khoei Foundation,
the Shi'ite Islamic Center in Jamaica, Queens, that had served as outside
ecclesiastical advisor to the plaintiff in the Cancel litigation. (Id. P 46.)
At that meeting they were advised that Shi'ite inmates could worship in the
same religious services as Sunni Muslims, but that special care was needed to
ensure that Shi'ite inmates were not harassed because of their beliefs. (Id. P
47.) Accordingly, in
addition to the existing grievance procedures DOCS put in place a Protocol
designed to ensure that the rights of Shi'ite inmates are respected and
protected. (Id. P 48-49.) The new Protocol warns DOCS employees, including chaplains, voluntary
chaplains and inmate facilitators to refrain from disparaging inmates on
account of their religious beliefs, and mandates that Shi'a Muslim inmates have
full access to all Muslim religious education classes, equal opportunities to
participate in all Friday Jum'ah services, and have at least one member
on the Muslim Majlis of any facility in which the Shi'ite inmates are present
in the general population. (Id. Ex. D.) Indeed, the Affidavit of John
LoConte, DOCS' Director of Ministerial and
[*331] Family Services, and its
supporting exhibits set forth an exceptionally impressive and thorough account
of DOCS' religious programs in general and its specific effort to accommodate
the religious needs of Shi'ite inmates. The LoConte Affidavit demonstrates
that, once alerted to the
need to pay particular attention to the distinction between Shi'a and Sunni
interpretations of Islam, DOCS undertook a sincere, thoughtful, and effective
effort to reconcile the religious needs of the Shi'ite prison population with
the security and penological interests of the State.
There is no dispute that neither DOCS nor Fishkill has provided accommodations
to Shi'ite inmates in the system, other than those described, and that Shi'ite
inmates do not enjoy separate religious services. LoConte has testified that
any such procedures would impose a significant administrative burden upon the
correctional system. Chief among those burdens are increased security concerns
caused by heightened rivalry among prison inmates belonging to different groups
with different privileges, and the competition for new members and converts
engendered by it. (LoConte Aff. P 29.) LoConte further testified that, while he does not dispute
the good faith of Shi'ite inmates, creating separate services for them would
increase pressure upon DOCS to recognize other sub-groups that may be used as a
subterfuge for gang-related activity. (Id. PP 38-39.) A proliferation of sects also
increases the administrative burdens of supervision, including the need to set
aside additional space, increased burdens on prison personnel who must monitor
each inmate program, and increased costs. (Id. PP 28, 30-36.)
Procedural History
Plaintiffs filed this action in or about July 2000, purportedly
as a class action on behalf of themselves and other similarly situated inmates.
The complaint did not allege specific facts, but contained only conclusory
assertions that plaintiffs were "not able to receive any spiritual
guidance in accordance with their religious beliefs" and that they were
"being discriminated against by the defendants because of their religious beliefs." (Compl. PP A, D.)
On September 27, 2000, Chief Judge Mukasey issued an order directing the Clerk
of the Court to assign a docket number to the complaint, but requiring the
plaintiffs to amend their complaint to include detailed allegations of the
manner in which their religious freedom was burdened and the alternative means
of worship provided by prison authorities that would allow the defendants to
mount an intelligent defense. (Cohen Aff. Ex. B at 3.) The Court also stated
that the action could not proceed as a class action since pro se plaintiffs
cannot act as class representatives. (Id. at 1, n.1.)
Accordingly, on November 17, 2000, the plaintiffs filed an
amended complaint. Plaintiffs seek a total of $500,000 in compensatory damages
and injunctive relief requiring the defendants "to provide the Shi'a
Muslim inmates at Fishkill Correctional Facility [with] a prayer area to
conduct religious classes and services, and to be allow[ed] to receive
volunteers, so that they could receive proper spiritual and educational benefits
in accordance with their beliefs." (Am. Compl. at 8.)
The parties appeared before this Court on June 7, 2001, for an
initial case management conference, with the plaintiffs appearing by telephone. At that time, defendants indicated
that plaintiffs' constitutional argument might be mooted by actions taken by
the DOCS in response to the recent decision of the Appellate Division of the
New York State Supreme Court in Cancel. Defendants stated that, in response to
the Cancel case, they had supplemented the existing religious program [*332]
with additional measures designed to secure the First Amendment rights
of Shi'ite inmates. Defendants argued, however, that separate services, which
plaintiffs demanded, were not constitutionally mandated. In light of the
dispute over the requirement for separate services, this Court directed the
parties to proceed to discovery, and scheduled a second conference on October
5, 2001, to check on the progress made.
On August 13, 2001, plaintiffs filed a motion for a preliminary
injunction, challenging the adequacy of the accommodations put into place by
the DOCS, and seeking an injunction requiring defendants to establish a
separate religious program for Shi'ite inmates. This motion is now fully
briefed and ripe for resolution.
Discussion
"[A] preliminary injunction is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a clear showing,
carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968,
972, 138 L. Ed. 2d 162, 117 S. Ct. 1865 (1997) (emphasis in original) (quoting
from WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 2948 (2d Ed.
1995)). A preliminary injunction may only be granted where the plaintiff has
shown that (1) that the injunction is necessary to prevent irreparable harm,
and (2) there is either (a) a likelihood of success on the merits, or (b)
sufficiently serious questions going to the merits of the claim and a balance
of hardships that tips decidedly in favor of the moving party. Otokayama Co. v. Wine of Japan Import, Inc.,
175 F.3d 266, 270 (2d Cir. 1999). There is no serious dispute that plaintiffs
have successfully made a showing of irreparable harm. n3 Nevertheless,
plaintiffs' request for a preliminary injunction fails because they cannot
establish a likelihood of success on the merits. Indeed, a careful examination
of the merits of plaintiffs' claims reveals that plaintiffs have not stated a
claim on which relief can be granted,
and that their complaint accordingly must be dismissed.
"Prison walls do not form a barrier separating prison
inmates from the protections of the Constitution." Turner v. Safley, 482
U.S. 78, 84, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). Thus, inmates retain the
right to the free exercise of religion protected by the First Amendment. Cruz
v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1974). However, the
constitutional protections afforded to prison inmates are not absolute, and
indeed are [*333] scrutinized under a
standard that is less exacting than that ordinarily applied to constitutional
infringements. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 96 L. Ed. 2d
282, 107 S. Ct. 2400 (1987). Assessing a free exercise claim by inmates involves
determining.
(1) whether the practice
asserted is religious in the person's scheme of beliefs, and whether the belief
is sincerely held, (2) whether the challenged practice of prison officials
infringes upon the religious belief; and (3) whether the challenged practice of
the prison officials furthers some legitimate penological interest.
Farid v. Smith, 850 F.2d
917, 926 (2d Cir. 1988). Inmates adhering to minority religions are also
protected under the Equal Protection Clause of the Fourteenth Amendment, Cruz,
405 U.S. at 321-22, and whether or not prison regulations violate the Equal
Protection Clause similarly depends on whether the regulation is
"reasonably related to legitimate penological interests." Benjamin v.
Coughlin, 905 F.2d 571, 574 (2d Cir. 1990). Thus, under both the First and
Fourteenth Amendments, prison regulations that restrict the exercise of
religious beliefs are subject to a "reasonableness" standard, applied
in relation to legitimate state penological interests.
This standard gives considerable deference to the judgment of
prison officials who are in the best position to make difficult decisions
involving prison administration.
Turner, 482 U.S. at 84-85 (1987). "Subjecting the day to day
judgment of prison officials to an inflexible strict scrutiny analysis would
severely hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison
administration." Id. at 89. Under this standard, a prisoner "is not
entitled to insist on a religious advisor
whose beliefs are completely congruent with his." Muhammad, 904 F.
Supp. at 190. Nor must prison officials provide a place of religious worship
for every faith, regardless of size, as long as all prisoners have a reasonable
opportunity to exercise their faith.
Cruz, 405 U.S. at 322, n.2. Rather the distinction between permissible
and impermissible restrictions is determined by a balancing test which looks to
(1) whether there is a rational relationship between the regulation and the
legitimate governmental interest asserted; (2) whether the inmates have
alternative means to exercise that right; (3) the impact the accommodation will
have on the prison system; and (4) whether ready alternatives exist which
accommodate the right and satisfy the governmental interest. Turner, 482 U.S. at 89-90.
Defendants do not contest that the practices asserted by the
plaintiffs are within their scheme of belief or that these beliefs are
sincerely held by the plaintiffs. Nor
is there any doubt that plaintiffs have alleged limitations on their ability to
practice their religious beliefs. Plaintiffs' primary claims of infringements
on their religious practice, however, do not make out a supportable claim that
the DOCS' Muslim program is unconstitutional on its face. It is undisputed that
no ecclesiastical authority or religious text requires separate services for
Shi'ites and Sunnis. Nor do the plaintiffs dispute that the four-point program
for Muslim inmates is facially non-sectarian, and permits practice of those
aspects of Islam that are common to both the Shi'a and Sunni faiths. Prisoners
are permitted to pray five times daily, to participate in religious
consultation and instruction, to take part in communal Jum'ah services and to possess
and use religious symbols such as prayer rugs and prayer beads. In light of
these significant accommodations, plaintiffs do not appear to contest that, at
least in theory, Shi'ite [*334] inmates are afforded a meaningful
opportunity to observe those traditions, rituals and beliefs that are required
of them by their religious doctrine. n4 Prior cases, moreover, have
consistently rejected the claim that the Constitution requires separate
religious services or chaplains for different Islamic subgroups. See Matiyn v.
Commissioner, 726 F. Supp. 42 (W.D.N.Y. 1989) (Sunni Muslims not entitled to prayer services separate from
Shi'a adherents); Muhammad v. City of New York, 904 F. Supp. 161 (S.D.N.Y.
1995) (Nation of Islam adherents not entitled to services and chaplain separate
from other Islamic sects).
For the
most part, then, plaintiffs do not directly attack the religious accommodations
governing Muslim inmates, and thus essentially concede that regulations
themselves do not infringe upon their First and Fourteenth Amendment rights.
Rather, plaintiffs assert that regardless of whether the DOCS Muslim program
passes constitutional muster on its face, the program as administered under the
Sunni chaplain at Fishkill significantly infringes upon their ability to
worship freely. n5 Plaintiffs have alleged that Imam Muhammad has shown overt
bigotry against Shi'a Muslims by openly proselytizing and denigrating Shi'ites
in front of Sunni inmates. Taking that allegation to be true, as we must at
this stage of the litigation, throws the alleged constitutional deprivations in
a different light. While the Muslim program in the abstract undoubtedly passes
muster, plaintiffs argue (with some force) that the program as administered
effectively deprives Shi'ite inmates of their free exercise rights. While the
First and Fourteenth Amendments do not require that prison inmates have access
to religious advisors whose own views are completely congruent to their own,
their protections are certainly not satisfied where the religious leader
purportedly responsible for inmates' spiritual guidance overtly despises the
deeply held beliefs of inmates under
his charge. Indeed, as courts have observed in analogous contexts,
When the only option available for a prisoner is under the guidance of
someone whose beliefs are different from or obnoxious to his, the prisoner has
effectively been denied the opportunity for group worship and the result may
amount to a substantial burden on the exercise of his religion.
Muhammad, 904 F. Supp. at
191, n.39 (citation omitted). Accordingly, plaintiffs have successfully stated
the second element of their claim. Therefore, the essential dispute in this
lawsuit is whether the [*335] measures taken by the defendants to address
this problem are "reasonable," or whether further action, including
establishing separate services for Shi'a and Sunni inmates, is constitutionally
required.
In response
to essentially identical allegations in the state court litigation, however,
DOCS in August 2001 put into place a Protocol designed to ensure that the
rights of Shi'ite inmates are respected and protected. The new Protocol
(LoConte Aff. Ex. D) warns DOCS employees, including chaplains, voluntary
chaplains and inmate facilitators, to refrain from disparaging inmates on
account of their religious beliefs, and mandates that Shi'a Muslim inmates have
full access to all Muslim religious education classes, equal opportunities to
participate in all Friday Jum'ah services, and at least one member on the Muslim
Majlis of any facility in which the Shi'ite inmates are present in the general
population. In addition, inmates are accorded access to both formal and
informal grievance procedures by which to seek redress. Whether these
measures are reasonable turns an application of the Turner factors.
At the outset, it must be noted that to the extent plaintiffs
claim that defendants should be required to take action to discipline or
control Imam Muhammad, such claims must be dismissed pursuant to 42 U.S.C. § 1997e(a). That statute requires
prisoners to exhaust all available administrative remedies before bringing a §
1983 claim with respect to "prison conditions." Complaints regarding
deprivations of First Amendment rights pertain to prison conditions and are subject
to this exhaustion requirement. See, e.g.,
Majid v. Wilhelm, 110 F. Supp.2d 251, 256 (S.D.N.Y. 2000). Here,
plaintiffs have never availed themselves of the grievance procedure for
complaints against prison employees with respect to the central allegation in
their complaint. Although the complaint in this action states that the
plaintiffs filed at least three grievances with prison officials in an attempt
to secure separate religious services for Shi'ite inmates, the plaintiffs have
never used the grievance procedures
available to redress the purported conduct of Imam Muhammad, which is at the
heart of the present lawsuit. The new protocol for dealing with Shi'a practice
in the prisons specifically provides remedies for such conduct by chaplains as plaintiffs
allege (LoConte Aff. Ex. D. Article I), supplementing those available at the
time plaintiffs filed this lawsuit. Under the statute, plaintiffs are required
to exhaust these administrative remedies, and doing so might well provide them
more immediate relief than litigation in this Court.
At any rate, on the merits, plaintiffs cannot establish that the
defendants' refusal to establish separate services was unreasonable even given
the allegations about Imam Muhammad's actions. Applying the Turner factors, I
conclude that the constitution does not require more than is provided by DOCS'
Muslim program, as modified by the new Shi'a protocol, and that plaintiffs
accordingly cannot succeed on the merits of their claims.
First,
defendants have undoubtedly articulated a rational relationship between their
refusal to provide separate services to Shi'ite inmates and their interest in
limiting the administrative burdens placed on the prison system.
Affidavit testimony from prison officials charged with making the appropriate
administrative decisions plainly establishes that requiring separate services
for every religious subsect would stretch prison resources because of the added
space, personnel and money that would be required to provide for additional
congregations of prison inmates in a manner consistent with prison security. As
the Supreme Court has instructed, federal courts should not second-guess prison
officials' [*336] considered judgments on matters of prison
administration. Turner, 482 U.S. at
84-85.
Second, as
set forth above, the Muslim program provides more than adequate opportunities
for plaintiffs to worship in a manner that is both meaningful and consistent
with their faith. Any deprivation of free exercise rights alleged by the
plaintiffs results solely from the allegedly hostile and bigoted conduct of the
Muslim chaplain at Fishkill charged with administering the Muslim program and
providing spiritual guidance to all Muslim inmates. The recent Protocol, however,
specifically prohibits such conduct, and provides Shi'ite inmates additional
ground to avail themselves of the existing grievance procedures established by
DOCS to prevent abusive and derogatory conduct on the part of prison chaplains.
Significantly, at the hearing on the preliminary injunction, plaintiffs did not
allege any recent incidents or renewed violations by Imam Muhammad since the
adoption of the Protocol. Thus, plaintiffs are provided substantial means of
observing the rituals and traditions required by their faith, ensured access to
all religious privileges enjoyed by
other Muslim inmates, and provided with a grievance mechanism to remedy any
violations by the Muslim chaplain. To the extent that they object to the
conduct of Imam Muhammad, their remedy, as already noted, is via the
administrative grievance procedure and does not require institution of separate
religious services for Shi'ites.
Third,
prison officials have documented that multiplying the number of sects or
groupings entitled to separate services would have an adverse impact upon
security at prison facilities by increasing opportunities for inmates to
exchange contraband and carry on gang-related activity under the cloak of
religion. This Court's consideration of the prison's legitimate concerns
about gang-related activity should in no way be seen as a rejection of the
sincerity of the plaintiffs' religious beliefs. Accepting that the
plaintiffs are observant and deeply
religious Muslims -- something this Court has no reason to doubt -- to require
separate services for Shi'ite inmates would raise problems that threaten the
security of both prison inmates and prison staff. This concern is even more
compelling in light of the numerous accommodations that DOCS has already made
for religious adherents in general, and Muslim inmates in particular. The
Protocol, which the record establishes was devised in close consultation with
recognized Shi'a religious authorities, does not provide for separate services
as a requirement of Shi'a observance. n6 Distaste for the particular chaplain
at Fishkill on the part of Shi'ite inmates there does not alter the appropriate
balance of concerns regarding the need for separate services.
Fourth,
there are no readily available alternatives that would be any more effective in
securing their rights and reconciling them with the prison's legitimate
interests. The only remedy suggested by the plaintiffs, as mentioned
above, would require significant additional commitments of prison resources and
would, moreover, raise substantial security concerns -- an [*337]
outcome that the constitution does not require. The absence of ready,
and easily implementable, alternatives to the measures already taken by prison
officials is persuasive circumstantial evidence that the measures taken here
were reasonable. See Turner, 482 U.S.
at 90.
These
conclusions compel not only the denial of a preliminary injunction, but
dismissal of the plaintiffs' claims. Although this action is presently before
the Court on plaintiffs' motion for a preliminary injunction, plaintiffs
essentially requested the primary remedy demanded in their complaint -- the
establishment of separate services for Shi'ite inmates. That motion effectively
sought to establish that the Protocol established by the defendants was
constitutionally inadequate, and the parties each introduced evidence
establishing the practices required of
inmates following the Shi'a faith and the practices followed by prison
authorities in accommodating those practices. Thus, resolution of the motion
has effectively resolved the dispute at hand. Further discovery will not aid om
resolution of this matter. Plaintiffs do not dispute that all Islamic sects
share certain central religious practices, and that these shared religious
practices are accommodated under the DOCS program. Nor do they dispute the
measures taken by the defendants to address the alleged conduct of Fishkill's
Muslim Chaplain. Defendants have presented affidavit testimony setting forth
the administrative and other burdens that would result from a requirement of
separate services. The only dispute remaining is a purely legal one concerning
whether the measures actually taken by the
defendants are constitutionally sufficient. The analysis set for above
indicates that they are, and plaintiffs' claims must be dismissed.
Conclusion
For the foregoing reasons, plaintiffs motion for a preliminary
injunction is denied and plaintiffs' claims are dismissed in their entirety.
SO ORDERED:
Dated: New York, New
York
December 28, 2001
GERARD E. LYNCH
United States District Judge
FOOTNOTES:
n1 At the hearing on plaintiffs' motion for
a preliminary injunction on October 5, 2001, plaintiffs contended that their
ability to celebrate Ramadan would be compromised since Sunnis and Shi'ites
break their fasting at different times, and the facility only provided one meal
time for Muslims observing Ramadan. At that time, LoConte represented that this
difference could be accommodated under existing DOCS guidelines.
n2 This holiday apparently commemorates the
death of one of the original twelve Imams, and it is not a holiday accommodated
by the DOCS Muslim program. (Cohen Aff. PP 11, 29,30.) Although congregational services
are not provided, inmates may observe the holiday individually, and according
to Islamic authority relied upon by the defendants, there is no requirement
that the holiday be observed in a communal fashion. (Id. P 30.)
n3 There is some dispute in this Circuit
about whether an alleged loss of First Amendment rights is presumed to
constitute irreparable harm. See Amandola v. Town of Babylon, 251 F.3d 339, 343
(2d Cir. 2001) ("We must perforce acknowledge that this Court has not
spoken with a single voice on the issue of whether irreparable harm may be
presumed with respect to complaints alleging the abridgement of First Amendment
rights.") Defendants assert that assuming such a presumption exists,
plaintiffs cannot benefit from it because they have failed to make a prima
facie showing that the DOCS Muslim program prohibits observance of a central
tenet of their religion. (Def. Mem. at 11. n.2.) As discussed in further detail
below, the crux of the plaintiffs' claims is not that the DOCS program violates
the First and Fourteenth Amendment on its face. Rather, plaintiffs argue that
the DOCS program, as administered by an openly hostile Sunni chaplain, fails to
protect their constitutional rights. Under this theory, to the extent that
plaintiffs have properly alleged an infringement of free exercise rights that
cannot be regarded as speculative, they have made a satisfactory showing of
irreparable harm, regardless of whether the
presumption exists and applies here. Cf. Latino Officers Assoc. v. Safir, 170 F.3d 167, 171 (2d Cir.
1999) ("This kind of conjectural chill is not sufficient to establish real
and imminent irreparable harm.")
n4 The one exception is the absence of any
accommodation to permit Shi'ite inmates to participate in congregational
services during a holiday of particular importance to Shi'ites, Eid Ghadir
Khum. However, the plaintiffs have nowhere alleged that their beliefs require
congregate worship on this holiday, and defendants have stated that the
plaintiffs are individually free to celebrate that holiday. (Cohen Aff. Ex. A P
30.) Because the plaintiffs have not been prohibited from observing any
religious practice mandated by their faith, this purported deprivation does not
rise to the level of a First Amendment infringement.
n5 Prison policies that target certain
religious beliefs are also unconstitutional. See United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997).
Although plaintiffs' original complaint contained conclusory allegations that
the defendants intentionally discriminated against them, Chief Judge Mukasey
dismissed plaintiffs' claim of intentional discrimination under 28 U.S.C. §
1915(e)(2), but allowed amendment of the complaint to contain specific factual
allegations supporting intentional discrimination. (Cohen Aff. Ex. B. at 6.)
Plaintiffs' amended complaint contains conclusory allegations of intentional
discrimination that are indistinguishable from those in the original complaint,
and therefore subject to dismissal for the same reason.
n6 Plaintiff Pugh argues that the decision
of Shaykh Al Sahlani, of the Al Khoei Islamic Center, "to sanction the
State protocol is incorrect and is against the ruling of the Ayatullahs."
(Pugh Aff. PP 9-10.) It is not for this Court to adjudicate differences of
opinion regarding Shi'a doctrine. DOCS has made every appropriate effort to
seek counsel from appropriate and recognized Shi'a religious authorities in an
effort to determine what is and is not required for Shi'ite inmates to practice
their religion. The Constitution does not require prison officials to
accommodate particular inmates' views concerning the orthodoxy of those
authorities' recommendations.
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