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BEST v. KELLY

March 16, 1995

HILLARY BEST, Plaintiff, -vs- WALTER R. KELLY, FREDERICK N. RICHARDSON, WILLIAM McNULTY, JEFF CARTER, REUVEN SCHWARTZ, THOMAS COUGHLIN, and EARL B. MOORE, Defendants.

JOHN T. CURTIN, United States District Judge


The opinion of the court was delivered by: JOHN T. CURTIN

CURTIN, District Judge

 Plaintiff has filed suit under 42 U.S.C. § 1983, claiming that his First Amendment rights to free exercise of religion were violated because he was removed from the Attica Correctional Facility's alternative diet and not permitted to attend services of the Jewish congregation in the prison. Plaintiff arrived at the Attica Correctional Facility in March of 1986 and stayed there until July 1988, when he transferred out of Attica at his own request. Defendants have moved for summary judgment, seeking an order dismissing the complaint. The court has considered the affidavits and detailed memoranda supplied by the parties in arriving at its decision.

 Defendants contend that neither the removal of Mr. Best from the Jewish congregational services nor defendants' refusal to serve him the alternative diet served to Jewish inmates violated plaintiffs constitutional rights. They contend that plaintiff is not Jewish, and he was disruptive during meetings and services of the Jewish congregation. They state that he was permitted to exercise his religion in his cell and to fashion what he considered an appropriate diet from alternative sources, and therefore, his removal from the congregation and from the alternative diet was proper.

 While growing up, plaintiff attended Episcopalian services with his family. Plaintiff says that he first identified himself as Jewish while in a New Jersey correctional facility in 1977, but at that time he considered himself a non-observant Jew and did not attend religious services. Between 1978 and 1981, plaintiff did not participate in any religious service. In 1981, while incarcerated in New York, plaintiff began to meet with a variety of religious groups. He first attended Catholic services; then he joined the Islamic community, eventually making a public declaration of belief in Allah. In 1982, he joined a Protestant group; and in 1983, he returned to the Catholic services. Finally, in 1984, plaintiff had contact with a Rabbi and began attending Jewish services at Clinton Correctional Facility. According to plaintiff, the Rabbi at Clinton did not inquire into his religious history.

 When plaintiff arrived in Attica in March 1986, the Jewish Chaplain was Rabbi Hoffman, who also did not inquire into his religious background. He was issued a religion ID card stating he was Jewish. Plaintiff began attending weekly Jewish services, prayer readings, and discussion of religious topics. In addition to attending weekly services, he also practiced his religious beliefs by individual prayer in his cell, reading religious texts, and consultations with the Rabbi. Plaintiff obtained what he thought was a religiously appropriate diet, either from outside sources or from the Attica Commissary, consisting mostly of non-cooked foods, such as fruits and vegetables and dairy products. After plaintiffs outside source of food dried up in October 1986, plaintiff asked Deputy Superintendent McAnulty to add him to the list of Jewish inmates receiving the alternative diet on October 29, 1986. By that time, Rabbi Hoffman had retired, and plaintiffs request was referred to the Senior Chaplain, Reverend Jeff Carter, a Christian clergyman, who approved the request on November 11, 1986.

 In March of 1987, Rabbi Ruven Schwartz became the Jewish Chaplain at Attica. He allowed plaintiff to continue to attend Jewish services and have the alternative diet. After a time, however, the Rabbi came to view plaintiff as a disruptive influence because he interrupted and challenged points that the Rabbi was trying to teach, saying that the Rabbi was wrong and should follow plaintiffs interpretations of Jewish Law. Rabbi Schwartz found that the challenges derived from plaintiffs ignorance of Jewish religious principles. He concluded that the interruptions were affecting the other inmates in the group who were trying to learn and who had complained to him about the plaintiff. Finally, he investigated the religious background of all members of the group in accordance with the policy of the New York Board of Rabbis and concluded that plaintiff was not a Jew under any recognized interpretation of Jewish law. He concluded that plaintiff was not sincere about Judaism but rather was using the diet for "recreation and sport."

 On June 23, 1987, the Rabbi issued a memo telling plaintiff that he was not entitled to be a member of Attica's Jewish population. He said that plaintiff could practice his particular religious beliefs in his cell or elsewhere in the facility. He told him that he could follow the diet he chose by making purchases in the commissary. Plaintiff protested; and when the Rabbi refused to change his position, he complained to Attica's senior Chaplain, Reverend Carter, and Superintendent Kelly.

 Each of these officials deferred to Rabbi Schwartz's determination as to who was properly a member of the Attica Jewish community. Reverend Carter advised plaintiff that he had to meet the requirements of Jewish law in order to be a member of that community, and he would follow Rabbi Schwartz's determination as to who was Jewish. Following this, plaintiff filed a grievance complaining of his exclusion from the Jewish congregation and the alternative diet. First Deputy Superintendent Richardson relied upon Rabbi Schwartz's determination and denied the grievance.

 Plaintiff was removed from the diet on June 17, 1987. However, on August 25, 1987, in response to the plaintiff's numerous complaints, Rabbi Schwartz relented and allowed plaintiff to again partake of the alternative meals. Plaintiff followed this diet until October 18, 1987, when plaintiff, complaining that the food was spoiled, requested that he be taken off the diet.

 Plaintiff relies upon the Department of Corrections Directive 4202, which provides that the policy of the Department is to give as much spiritual assistance as possible for inmates to practice their chosen faith, limited only by security considerations. However, Directive 4202 F(2) states that an inmate may attend only the religious program of his designated religion as noted in the facility records. Here, plaintiff claims that he had a Jewish I.D. card and, therefore, he should be permitted to attend the services.

 In addition, the defense contends that restriction of the alternative diet to bona fide members of the Jewish faith is related to the goal of preventing undue administrative burden and cost. If a number of inmates opted for the alternative diet, costs would increase substantially. The defendant argues that whether the plaintiff actually disrupted services is immaterial because the decision as to who should be allowed to attend services and participate must be left to the religious leader of that group. As long as ...


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