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May 3, 1994

THOMAS A. COUGHLIN, III, Commissioner New York State Department of Correctional Services ("DOCS"); GLENN GOORD, Deputy Commissioner, DOCS; EARL B. MOORE, Assistant Commissioner of Ministerial and Family Services, DOCS; JOHN P. KEANE, Superintendent, Sing Sing Correctional Facility; E. REYNOLDS, Superintendent, Oneida Correctional Facility; C. GREINER, Deputy Superintendent of Security Services, Sing Sing Correctional Facility; THOMAS EISENSCHMIDT, Deputy Superintendent of Security Services, Oneida Correctional Facility; Sergeant KENNEDY, Sing Sing Correctional Facility; Sergeant SALERNO, Oneida Correctional Facility; Correctional Officer J. KNOBLOCH, Oneida Correctional Facility; all individually and in their official capacities, Defendants.


The opinion of the court was delivered by: SONIA SOTOMAYOR


 Plaintiffs, two inmates in the New York State prison system, are followers and practitioners of the Santeria religion who are challenging a recently implemented directive of the Department of Correctional Services ("DOCS"). *fn1" Plaintiffs seek injunctive and monetary relief for constitutional and statutory violations caused by the directive which prohibits prisoners from wearing certain religious artifacts, including plaintiffs' religious beads. *fn2" In the instant motion before me, plaintiffs seek an injunction requiring DOCS to return their confiscated beads and permission to wear them under their clothing during the pendency of this action.

 This case raises significant constitutional and statutory issues about the protections accorded fundamental First Amendment rights of freedom of religious expression in a prison setting. It underscores the complex nature and difficulty of accommodating various religious belief systems and tenets within a prison system, wherein violence is a real and daily threat. Plaintiffs' herein challenge DOCS, and our society, to acknowledge their religious beliefs, no matter how unfamiliar they may be to prison officials, and to refrain from over-broadly burdening the practice of a non-mainstream religion. To that end, plaintiffs seek from this Court protection of their First Amendment rights.

 For the reasons discussed below, I find that plaintiffs have shown irreparable harm as a result of DOCS' directive and both a likelihood of success on the merits, as well as significant questions going to the merits with the balance of the hardships in their favor. Plaintiffs' request for injunctive relief is, therefore, granted to the extent that DOCS may not prohibit plaintiffs from wearing their Santeria beads, under their clothing, or placing beads on their non-publicly displayed shrines.

 I. Background

 A. Facts

 Plaintiffs Tony Campos ("Campos") and Alex Lance ("Lance") are inmates, respectively, at the Sing Sing Correctional Facility ("Sing Sing") and the Oneida Correctional Facility ("Oneida") in New York State. Plaintiffs are also followers of Santeria, a religion practiced in Puerto Rico, Cuba and other parts of Latin America and the Caribbean, as well as parts of the United States, including New York. During the entire period that the plaintiffs have been incarcerated in the DOCS system -- over 14 years in the case of plaintiff Campos -- they have practiced their Santeria religion without any interference from DOCS personnel.

 In 1993, DOCS revised its previous directives and regulations, restricting plaintiffs' religious practices by requiring that they prove to DOCS's satisfaction that they are genuine adherents of the Santeria religion and that the use of Santeria beads is a necessary tenet of Santeria religious practice. Even if plaintiffs convince DOCS that they are genuine Santeria practitioners and that their religion requires the use of beads, the directive at issue still limits plaintiffs' use to the mere possession of the beads. The wearing of Santeria beads is wholly prohibited under the directive. Plaintiffs charge that this limitation significantly burdens the free exercise of their religion and, therefore, cannot withstand legal scrutiny.

 The relevant facts are not disputed. The impact and significance of defendants' actions, however, are the subject of much discord among the parties. Prior to the challenged revision of its regulations in 1993, DOCS permitted prisoners to possess and wear religious beads. Inmates were permitted to receive religious beads from outside the prison after local prison facility personnel determined that an inmate was a genuine adherent of a religion requiring the use of beads. Transcript of March 31, 1994 Hearing, p. 45 ("Tr."). On November 30, 1993, DOCS issued revisions to its Directive #4202. This directive addresses religious practices throughout the DOCS system and sets forth the permissible use of religious artifacts, including, but not limited to, beads and medals. The directive became effective on January 1, 1994, but permitted inmates until March 1, 1994, to comply with the new directive's mandate by discarding or sending home the newly-proscribed items. The DOCS directive further provided a mechanism whereby inmates, like plaintiffs, could seek permission prior to and after the effective date of the directive, to possess, although not wear, the proscribed religious items.

 DOCS's revisions were based on its conclusions that there was system-wide use by prison gangs of beads as gang membership identification symbols. According to defendants, some prisoners were restringing religious beads, to project identifiable membership in particular gangs by the color of the beads. DOCS concluded that the beads facilitated gang violence, rivalry and confrontation because inmates could identify rival gang members by the colors of the wearer's beads. Defendants claim that gang activity causes "friction, rivalries and even violence among inmates, thereby threatening the safety and security of the facility." Defendants' Memorandum of Law in Opposition to Motion for a Preliminary Injunction, pp. 8-9; see also Defendants' Supplemental Memorandum, Dated April 5, 1994, pp. 4-5 (Defendants' Supplemental Memorandum"). The directive prohibiting the wearing of beads, thus, is defendants' attempt to diminish gang violence and further "DOCS's interest in stemming the activity of gangs and other unauthorized groups." Defendants' Supplemental Memorandum, p. 4.

 Directive #4202 establishes a hierarchy of religious artifacts, with those items recognized by DOCS personnel as "traditional," such as crucifixes and crosses, receiving preferred treatment in that inmates may receive, possess and wear them, under their clothing, without DOCS's prior approval. The second tier of the hierarchy provides that inmates may receive and possess, but not wear, black rosary and Dhikr beads, again without prior approval. At neither tier does DOCS require inmates, except for Santeria adherents, to provide a religious-based justification for such possession. Plaintiffs' Santeria beads, thus, are left in a black hole of items which must be approved prior to the inmates' receiving or possessing them. Unlike the other items referred to in the directive, which are presumed to be genuine religious articles to be used for religious purposes, Santeria beads are denied such a presumption of authenticity. As it currently reads, Directive #4202 reflects DOCS's judgment and choice, based on religious practices familiar to defendants, as to which religious items and practices are prima facie acceptable and those which are not.

 Revised Directive #4202 provides, in relevant part, that:

Inmates will be permitted to wear only traditionally accepted religious medals, crucifixes, or crosses. The religious medal, crucifix, or cross shall be affixed to a chain only. It is not acceptable to wear religious medals, crucifixes or crosses that are affixed to beads, leather, strings, or rope.
* * *
All approved religious medals, crucifixes, and crosses shall not be visible and shall be worn underneath clothing at all times.
Rosary beads and Dhikr beads are not considered religious medals, and, as such, may be possessed for prayer and worship, but not worn or displayed. Rosary and/or Dhikr beads in the color of black only will be permitted.
Other traditionally accepted prayer beads, documented and supported on a theological basis for use in the practice of an inmate's documented religion, may also be possessed, but not worn or displayed. Only those colors documented and supported on a theological basis in the practice of an inmate's documented religions will be considered for approval, pursuant to review by the Senior Chaplain and Deputy Superintendent for Security Services. After the review by the Senior Chaplain and Deputy Superintendent for Security Services, a decision will be made to either disapprove the beads or recommend approval to Central Office. If recommended for approval at the facility level, a photograph and a written explanation regarding the theological basis for the recommended approval shall be forwarded to the Assistant Commissioner for Ministerial Services who will review the facility recommendation with the Deputy Commissioner for Correctional Facilities, at which time approval or disapproval shall be determined. If approved by Central Office, the beads will be registered at the facility and a permit will be issued.

 Amended Complaint, Exhibit B. *fn3"

 Thus, "traditionally accepted religious medals, crucifixes, or crosses" and rosary beads and Dhikr beads can be received by inmates without certification of the inmate's religious beliefs. In contrast, the administrative mechanism established by Directive #4202 for the approval of Santeria beads consists of a two-step process, wherein the inmate first must seek certification of his or her religious adherence and approval of the possession of the beads from the facility's personnel, and then from the DOCS Central Office.

 At the facility level, the chaplain interviews the inmate and may ask questions "to satisfy himself that the inmate is familiar with the religion." Defendants' Supplemental Memorandum, p. 2. Then, the Deputy Superintendent for Security Services reviews the beads in order to assess whether they "constitute a threat to the security of the facility." Id. Thereafter, if the chaplain and the Deputy Superintendent agree, they send a recommendation for approval with a photograph of the beads to the DOCS Central Office. At this second stage, the Deputy Commissioner for Correctional Facilities and the Assistant Commissioner for Ministerial Services consider approval of the beads. Defendants assert that this Central Office review is necessary "in order to ensure uniform treatment of all inmates, and to bring a state-wide perspective to the review." Id. Although defendants have estimated that this process generally should take no more than four weeks -- two at the facility level and two at the Central Office level -- well over two weeks have elapsed since DOCS Central Office undertook plaintiffs' certifications and DOCS still has not concluded the process. See id. at 3.

 Plaintiff Lance alleges that on or about November 10, 1993, approximately six weeks before the January 4, 1994 effective date of Directive #4202, Sing Sing personnel confiscated his beads. Lance further claims that his beads were again confiscated upon his subsequent transfer to Oneida two weeks later, on November 24, 1993. *fn4" Lance was also issued an Inmate Misbehavior Report for possession of the contraband religious items. The charges were upheld after a hearing on December 3, 1993. Lance filed a grievance based on the confiscation and sent various letters to DOCS personnel, including Oneida's Superintendent, defendant Reynolds, concerning his beads.

 Similarly, on or about January 5, 1994, Sing Sing personnel confiscated plaintiff Campos' beads under Directive #4202. On January 6, 1994, Campos filed a grievance with the Inmate Grievance Resolution Committee ("Committee"), challenging Directive #4202 because it infringed on his freedom of religious expression. On January 18, 1994, the Committee rejected Campos' grievance and, shortly thereafter, on January 31, 1994, Sing Sing's Superintendent, defendant Keane, denied Campos' appeal.

 It does not appear that either plaintiff completed the DOCS approval procedure set forth in Directive #4202 prior to initiating the instant action and seeking preliminary relief for permission to wear their beads under their clothing. *fn5" At the conclusion of a hearing before me on March 31, 1994 ("the Hearing"), however, defendants commenced the approval process for determining whether to permit Campos and Lance to possess, but not wear, their beads. Shortly after the Hearing, defendants informed me that DOCS facility personnel have recognized both plaintiffs as adherents of Santeria and would recommend that their beads be approved by the Central Office. See Defendants' Supplemental Memorandum, p. 3. The Central Office, as of this date, has yet to render a decision on the plaintiffs' requests.

 B. Plaintiffs' Religious Practices

 1. The Sincerity of Plaintiffs' Beliefs

 Plaintiffs claim that they have practiced Santeria since they were children and that they are bona fide adherents of the Santeria religion. Affidavit of Tony Campos, P 2 ("Campos Affidavit"); Affidavit of Alex Lance, P 2 ("Lance Affidavit"). Plaintiffs also aver that they seek to wear their Santeria beads strictly for devotional purposes, in accordance with their religious beliefs. In their affidavits, Campos and Lance affirm that, like other Santeria adherents, they believe they "must wear sacred [Santeria] beads of certain color combinations at all times except when engaging in sexual intercourse, bathing, or sleeping," because the beads, "when worn, protect [them] from danger and from evil to which [they] might otherwise be vulnerable," and that the beads "when worn, will bring [them] good fortune, peace, purity and good health." Campos Affidavit PP 3-4; Lance Affidavit PP 3-4. Both plaintiffs further claim that they will suffer serious negative consequences if they do not wear their beads and each has affirmed that in accordance with Santeria religious tenets they are "subject to danger and evil" without the protection of their beads. Campos Affidavit P 12; Lance Affidavit P 18.

 Defendants do not concede the genuine or sincere nature of plaintiffs' religious beliefs and have alleged that they could not "verify that plaintiffs desire these beads for the practice of their religion." Affidavit of Glenn S. Goord, P 4, Exhibit A. To support their position that there is a genuine question about the plaintiffs' religious beliefs, defendants have submitted documents which indicate that upon their entry into the prison system, plaintiffs Campos and Lance identified themselves as, respectively, "Catholic" and "Christian."

 Defendants' attempt to cast doubt upon plaintiffs' religious beliefs is not persuasive. There is nothing in the record to suggest that plaintiffs, although devout Santeria practitioners, do not also acknowledge certain aspects of Catholicism and Christianity, as do other practitioners of Santeria. Indeed, only last year, prior to the DOCS directive's effective date, the Supreme Court recognized that "Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, U.S. , 113 S. Ct. 2217, 2222, 124 L. Ed. 2d 472 (1993). At the Hearing, plaintiffs' counsel also noted that defendants' own expert, Raul Canizares, has written a book in which he indicates that Santeria adherents usually identify themselves as Catholics when asked their religious affiliation. Tr. 64. I further assume that defendants had access to their own prison personnel and records and that, if there was any evidence of gang affiliation or other factors to suggest that plaintiffs' alleged religious beliefs are insincere, defendants would have presented such evidence to the Court.

 Finally, defendants have recently informed me that, at least at the individual facility level, plaintiffs are now accepted as adherents of the Santeria religion. See Defendants' Supplemental Memorandum, p. 3. Based on this information, and solely for purposes of the preliminary injunction motion, I accept that plaintiffs' asserted religious beliefs are sincere and that their challenge to the DOCS's directive is based on their desire to practice their religion free from undue constraints.

 2. Santeria Practices and the Wearing of Beads

 Santeria is a religious belief system with a long and rich history in the Caribbean and Latin America. It is an expression of what experts term a "syncretion," or fusion, of African religion and Roman Catholicism. Saints are fundamental figures in Santeria. They play the role of guide and patron to Santeria devotees. The saints in the Santeria religion, however, are different in character and status from the saints recognized and venerated in Catholicism. The Saints, or Orishas as they are known in Santeria, have distinct personalities and temperaments and Santeria practitioners have specific patron Orishas with whom they have a spiritually intimate affiliation. The saints and spirits, and the adherent's devotion to the Orishas, are central aspects of Santeria beliefs. See Church of the Lukumi Babalu Aye, 113 S. Ct. at 2222.

 Devotion to the Orishas and commitment to Santeria is expressed, in part, by the follower's wearing of a necklace of colored beads, the practice at issue in this action. The beads are not mere symbols of some greater entity or a tool for veneration. According to plaintiffs' expert, the beads are "a focus of spiritual presence, as protection against misfortune, and as markers of spiritual identity." Affidavit of Joseph M. Murphy, P 9 ("Murphy Affidavit"). Significantly, Santeria adherents believe that if the practitioner wears these beads faithfully the beads ensure the practitioner's closeness to the Orishas, as well as protection from negative forces and events. Even a simple transgression from this practice, such as a temporary removal of the beads for some reason other than those recognized by adherents, or the blemishing of the beads as a result of their handling by someone other than the wearer, may lead to negative consequences for the practitioner.

 The colors of the beads, and color combinations of bead strands, also carry great significance in the Santeria religion because different color beads correspond to particular Orishas and particular days of the week. When a practitioner recognizes a patron Orisha, that individual then wears that patron's colors on a bead necklace. In addition, the follower also wears the beads which correspond to the Orisha recognized on that particular day of the week. Consequently, a practitioner of Santeria may wear several strands of beads, in various colors, some worn daily and others worn on different days of the week.

 C. Plaintiffs' Claims

 Plaintiffs challenge the DOCS directive, on its face and as applied, as a statutory and unconstitutional infringement on their free exercise of religion because the directive prohibits plaintiffs from wearing their Orisha beads. Specifically, plaintiffs allege that the directive violates the recently-enacted Religious Freedom Restoration Act of 1993, 42 U.S.C. ยง 2000bb (Supp. 1994), their right to freedom of expression protected under the First and Fourteenth Amendments and their Fourteenth Amendment equal protection and due process rights.

 Plaintiffs also charge that the two-step approval process established by defendants for purposes of granting permission to an inmate to possess beads is unduly burdensome, unnecessarily lengthy and cumbersome. Plaintiffs' more compelling challenge, however, alleges that the process is fundamentally ineffective because it fails to provide plaintiffs with a real remedy: approval to wear beads. Plaintiffs claim that so long as defendants refuse to modify the directive to permit the wearing of beads, the approval mechanism does not address their religious needs.

 Defendants claim that the directive is a proper means to address prison gang violence and does not violate plaintiffs' constitutional rights because it does not impose a significant burden on plaintiffs' free exercise of religion. Defendants argue that once plaintiffs establish, through the approval process, the sincerity of their religious beliefs and the genuine nature of their request to use beads solely for religious purposes, that plaintiffs will be allowed to possess the beads. Since, according to the defendants, Santeria tenets are satisfied by the mere possession, without wearing, of beads, plaintiffs are not significantly burdened by the DOCS's possession restriction. Defendants refused plaintiffs' compromise proposal, maintaining that wearing beads under clothing would still undermine penological security objectives. Defendants argue that the Court should defer to DOCS's judgment of the proper balance between DOCS's institutional needs and plaintiffs' individual rights.

 I do not approach this matter with a blank slate. Neither I, nor defendants, are without benefit of some discussion of Santeria and the recognition of its protected status within constitutional moorings. Last year, the practices of Santeria were considered and accorded First Amendment protection, by the Supreme Court in Church of the Lukumi Babalu Aye. In addition, as the parties and their experts recognize, Santeria has been the subject of much literature and academic discourse. See e.g., Migene Gonzalez-Wippler, Power of the Orishas: Santeria and the Worship of Saints 5 (1992); M. Gonzalez-Wippler, Santeria: African Magic in Latin America (2d ed. 1992); Raul Canizares, Walking with the Night: The Afro-Cuban World of Santeria (Rochester, Vt.: Destiny Books 1992); 13 The Encyclopedia of Religion 66 (M. Eliade ed. 1987); 1 Encyclopedia of the American Religious Experience 183 (C. Lippy & P. Williams eds. 1988).

 The Supreme Court in Church of the Lukumi admonished legislators that in their zeal to regulate conduct they must be ever mindful of the First Amendment's requirements:

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.

 113 S. Ct. at 2234.

 With these principles and the Supreme Court's warning in mind, I now consider the instant motion. *fn6"

 II. The Motion for Preliminary Injunction

 A preliminary injunction may issue only where the movant has shown "(1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation, and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Blum v. Schlegel, No. 811, Docket 93-7689, 1994 WL 67166 at *4 (2d Cir. ...

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