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.
The defendants have supplied the affidavit of Rabbi James L. Mulrey, an Orthodox Rabbi and presently Area Chaplain in Western New York. He stated that limiting participation to the Jewish community to persons who are bona fide Jews respects and preserves the religious doctrine of the participants. Judaism refrains from proselytizing, discourages conversions generally, and refrains from permitting conversions in prison. His affidavit relates that Jews pray more comfortably together when amongst themselves, and that the presence of other persons is sometimes perceived as invasive to the religious atmosphere. Therefore, restrictions as to who can attend services are directly related to the goal of providing a suitable religious atmosphere for the spiritual development and rehabilitation of the members of the identified religious group.
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 he gave some reason for his decision and if his decision rests upon a legitimate penological interest it should not be disturbed.
In this case, we have a conflict between the right of plaintiff to practice his religion and the administration's right and need to run a secure and orderly facility. When a prisoner challenges a regulation as an infringement of a constitutional right, the court must balance respect for that right against deference to the judgment of prison administrators. Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990). Until recently, defendant administrators could satisfactorily justify a challenged restriction by showing that it is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987). See also Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129-30, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977) (The inmate is allowed only those constitutional rights that do not conflict with legitimate objectives of prison administration). However, when Congress enacted the Religious Freedom Restoration Act of 1993 ("RFRA"), it restored an earlier "compelling interest" standard set forth in Sherbert v. Verner 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). The RFRA states in pertinent part that:
[The] government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and