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July 19, 1995

Imam Hamzah S. Alameen, a/k/a Gilbert Henry, and Robert Golden, Plaintiffs, against Thomas A. Coughlin III, etc., et alia, Defendants.

The opinion of the court was delivered by: CHARLES P. SIFTON

 SIFTON, Chief Judge.

 This is an action brought pursuant to 28 U.S.C. § 1983 by plaintiffs, Imam Hamzah S. Alameen a/k/a Gilbert Henry and Robert Golden, against defendants, Thomas A. Coughlin III, the Commissioner of the New York State Department of Correctional Services, and Bert Ross, the Superintendent of the Arthur Kill Correctional Facility.

 The matter is currently before the Court on an application by plaintiffs for a preliminary injunction prohibiting the New York State Department of Correctional Services (DOCS) from enforcing a policy prohibiting the display of black dhikr beads and the possession of such beads of any color other than black. Plaintiffs allege that DOCS' newly implemented policy is both unconstitutional and in violation of the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488, codified at 42 U.S.C. §§ 2000bb et seq. ("RFRA").

 For the reasons set forth below, plaintiffs' request for preliminary injunctive relief is granted to the extent that defendants are restrained, pending the trial of this case, from implementing a policy which prohibits the display of black dhikr beads incidental to their use by Sufi Muslims to aid in the reciting or recalling of the ninety-nine names of Allah.

 What follows sets forth this Court findings of fact and conclusions of law upon which this determination is based as required by Rule 65 of the Federal Rules of Civil Procedure. The findings of fact are based on the undisputed allegations set forth in both sides submissions on this motion as well as the hearing conducted in this matter on June 22, 1994.


 At the time he filed suit, Plaintiff Alameen was an inmate at the Arthur Kill Correctional Facility, Staten Island, New York ("Arthur Kill"), a state prison run by DOCS. Plaintiff Golden is currently incarcerated at Arthur Kill Correctional Facility. Defendant Thomas A. Coughlin III is the Commissioner of DOCS. Defendant Bert Ross is the Superintendent of Arthur Kill. Both defendants are sued in their official capacities.

 Plaintiffs are practicing Muslims and have brought this action to challenge revisions to DOCS' Directives Nos. 4202 and 4911, which limit their freedom to use dhikr beads (Muslim prayer beads) while venerating Allah in public settings. *fn1"

 Procedural History

 The directives were phased in according to the following schedule: on December 1, 1993, packages which contained items not in conformity with the new rule would not be accepted; on January 1, 1994, inmates would no longer be able to wear certain religious emblems, and on March 1, 1994, all items not in compliance with the new regulations would be sent home or destroyed.

 On May 3, 1994, Judge Sotomayor enjoined DOCS' application of the regulations as applied to beads worn by practitioners of the Santeria faith. Campos v. Coughlin, 854 F. Supp. 194 (S.D.N.Y. 1994). DOCS was enjoined during the pendency of Campos action from preventing plaintiffs in that action from receiving Santeria beads, wearing Santeria beads under their clothing or placing the beads in non-public shrines.

 On February 28, 1994, plaintiff filed the instant action, seeking a temporary restraining order and preliminary injunctive relief to allow him to display and wear dhikr beads in colors other than black. Plaintiff was thereafter appointed pro bono counsel by the Court. The parties then stipulated to allow plaintiff to file an amended complaint. In the interim, plaintiff Alameen was released from Arthur Kill. Although his release rendered his request for preliminary relief moot, the amended complaint added Golden, currently an inmate at Arthur Kill, as a plaintiff. According to his affidavit, Golden is the Imam of Masjid Jidhad at Arthur Kill, the spiritual leader of 204 followers of the Islamic faith at that institution. In addition, the amended complaint seeks certification of a class of all others similarly situated in New York State correctional facilities. To date no motion to certify a class has been filed.

 In the amended complaint, plaintiffs contend that the DOCS' directives "substantially burden the inmates' free exercise of religion in the absence of a compelling government interest," in violation of RFRA. Plaintiffs also contend that the directives violate the establishment clause of the United States Constitution and impinge upon their rights under the Equal Protection Clause because the directives allow "traditionally accepted religious medals, crucifixes or crosses" to be worn, while restricting the use of dhikr beads. Plaintiffs contend that "the directives unconstitutionally deem dhikr beads to be of less religious value to Muslims than other religious items are to 'traditionally accepted' religions." Pls. Amended Compl. at P23. *fn2"

 The Practice of Dhikr

 It is undisputed that Alameen and Golden, like other sincere and devout Sufi Muslims, use dhikr beads in a strand of either ninety-nine or thirty-three beads to aid their practice of reciting the ninety-nine names of Allah. "Dhikr," an arabic word, can be translated as "to remember" and represents the need to remain continuously conscious of the existence of Allah.

 According to plaintiff Alameen,

Dhikr beads have been used since the beginning of Islam, 609 A.D., but most likely came into [general] use at Medina around 623 A.D.... The wives of the Prophet were early pioneers, they noted the Prophet's practice of counting incantations on his fingers with stones and pebbles, and one wife gathered 4,000 date palm stones to count her Dhikr. The best Dhikr is to count with one's fingers, the Prophet's way, but if you will lose count, then all the Islamic jurists agree that Dhikr beads become superior.

 While reciting the names of Allah, the beads are held in the hand and a single bead is moved down the strand by finger movement as each name for Allah is recited or invoked. Muslims believe that they must remain mindful of the presence of Allah in order to achieve spiritual purity and heal physical and mental illness. Alameen described the importance of the practice to him and other Sufi Muslims as follows:

We believe that merely by reciting the formulas of tradition and of the Quran, we are freed of sins and or rewarded for our work. We believe that our life in this world and the hereafter is enriched. Plus the Prophet has prescribed Dhikr for physical and spiritual illness. Because we believe all mental so-called illness to actually be spiritual maladies....

 Failure to recite the names of Allah in order and without omissions or repetition has spiritual consequences. As Alameen states:

 In the Islamic faith, a Muslim is required to say obligatory prayers five times a day. These obligatory prayers do not directly involve dhikr beads or the invocation of the names of Allah, however. As explained by Dr. Francis Peters of New York University, an expert in the field:

If you will, there's a distinction, as in all religions, between formal prescribed prayer and voluntary prayer, and in Islam, every Muslim is obliged to pray five times a day, just as every Jew is obliged to pray three times a day. The [dhikr], the beads, or the repetition of the 99 names plays no part in that ritual obligation.
On the other hand, Muslims, like members of other religions, take upon themselves other practices, kind of either voluntarily or customarily, and the [dhikr], the repetition of the names and the use of the beads in connection with that, therefore, is either a question of personal piety or part of the obligations one ...

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