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October 16, 1995

ABDUL-SHAHID FARRAKHAN MUHAMMAD, DARRELL X. McKINNEY, VICTOR SANTOS, CURTIS McDOWELL, URIAH WEBB, HORACE BETARD, LASHANGO LeGRAND, and KENNETH HAMMONDS, Plaintiffs, against CITY OF NEW YORK DEPARTMENT OF CORRECTIONS, ANTHONY SCHEMBRI, Commissioner, City of New York Department of Correction; ALLYN R. SIELAFF, former Commissioner, City of New York Department of Correction; and CATHERINE M. ABATE, former Commissioner, City of New York Department of Correction, Defendants.

The opinion of the court was delivered by: PRESKA

 LORETTA A. PRESKA, United States District Judge:




I. The Nation of Islam
II. Plaintiff Muhammad's Allegations
III. Testimony of Imam Askia Muhammad
IV. DOC Religious Accommodation Policy
V. The Testimony of Imam Luqman
VI. NOI Volunteers in DOC Facilities:
The Testimony of Antonio McCloud
VII. Testimony of Robert Daly and Robert Wangenstein Concerning DOC's Operations and Allocation of Resources
A. Overview of the relevant DOC Operations
B. The Rationale of Generic Services
C. Operations at the Brooklyn House of Detention
D. Analogous Procedures on Rikers Island
E. Evidence Concerning the Number of NOI Inmates
F. Federal Bureau of Prisons' Religious Accommodations


I. The Religious Freedom Restoration Act
A. Substantial Burden
1. Ministers
2. Congregate Services
3. Literature
4. Holidays
5. Other
B. Compelling Interest and Least Restrictive Means
II. First Amendment Claims
A. Free Exercise
B. Establishment Clause
III. Equal Protection
IV. New York Law
A. State law
B. City Regulations
V. Qualified Immunity


 Plaintiff Abdul-Shahid Farrakhan Muhammad ("Muhammad") seeks (i) a declaratory judgment that defendants have unlawfully deprived him of his rights under the federal and state law to practice his religion, that of the Nation of Islam ("NOI"); (ii) a permanent injunction requiring the City of New York Department of Correction ("DOC") to take a variety of actions concerning the exercise of his religion in DOC facilities; (iii) compensatory damages; and (iv) costs and attorneys' fees. For the reasons stated below which largely relate to the unique characteristics of the DOC system, I find that plaintiff is not entitled to the relief he seeks.


(i) to recognize the Nation of Islam faith as a religion within the meaning of defendants' policies and practices;
(ii) to make available to plaintiff class members free and adequate access to Nation of Islam ministers for spiritual guidance and support;
(iii) to make available to plaintiff class members free and adequate access to religious services conducted by a Nation of Islam minister or inmate follower of the Nation of Islam;
(iv) to promulgate directives recognizing the holy days of the members of the Nation of Islam and permitting daylight fasting on the holy days requiring it;
(v) to allow plaintiff class members to possess religious literature of the Nation of Islam that does not present a clear and present danger to the institution as determined by an impartial board employing specific criteria;
(vi) to refrain from any conduct that substantially burdens the right of members of the class to exercise their religion if that conduct is not the least restrictive alternative of furthering a compelling state interest; and
(vii) to refrain from making any distinction among religions based on defendants' assessment of the content of the tenets of any religion.

 (Second Am. Compl. at 17.) Plaintiffs also sought compensatory damages, attorneys' fees and certification of a class of followers of NOI who are or will be incarcerated in the City and State correctional systems.

 In response to plaintiffs' application to move to certify a class, the State and City defendants stipulated that any injunctive relief awarded to the individual plaintiffs would be implemented on a system-wide basis, thus obviating the need to litigate the class certification issue.

 On or about July 25, 1994, the City and State defendants filed a motion to dismiss the RFRA claims on the ground that RFRA is unconstitutional. The State defendants, but not the City defendants, subsequently withdrew their constitutional challenge. The City defendants' motion is still pending before the Court. *fn1"

 On November 8, 1994, the parties entered into a stipulation permitting six additional plaintiffs to intervene in the action.

 A bench trial was conducted on December 8, 9, 12 and 13, 1994, and January 17, 18 and 30, 1995. Numerous witnesses testified, including the plaintiffs, all of whom are NOI followers; Robert Green, an NOI minister known as "Minister 9X"; four orthodox Muslim imams, *fn2" two of whom formerly belonged to the NOI and all of whom are employed by either DOCS or DOC; *fn3" one professor, Dr. C. Eric Lincoln ("Professor Lincoln"), who has written extensively about NOI for over thirty years; and Antonio McCloud, DOC's Director of Volunteer Services, who frequently attends NOI religious services in New York and New Jersey. In addition, on December 9, 1994, a site visit was conducted to the Anna M. Kross Center ("AMKC"), a DOC correctional facility on Rikers Island. During the trial, the plaintiffs and the State defendants reached a settlement, and I subsequently approved a consent decree. No settlement was reached between the plaintiffs and the City defendants. Of the eight plaintiffs, only Muhammad has asserted claims against the City defendants. *fn4"


 I. The Nation of Islam

 There are dozens of Islamic sects, each sharing certain fundamental tenets, but also having distinctive beliefs, practices and spiritual leaders. (Tr. 97-101, 555-57.) The prophet Muhammad is said to have predicted that there would ultimately be seventy-two Muslim sects. (Tr. 556.) Imam Umar testified that he could currently name twenty to twenty-six such Muslim sects, and Professor Lincoln testified to fourteen splinter groups that came out of the NOI alone. (Tr. 49-50, 101, 557.) *fn5"

 Turning to the NOI in particular, the NOI was founded in 1930 by Fard Muhammad, also known as W.D. Farad or Fard. After Fard's unexplained disappearance in 1934, his assistant, Elijah Muhammad, assumed leadership of the movement until his death in 1975. (Pl. Ex. 55 at 12, 15-16, 267.) According to Professor Lincoln, NOI leaders developed a theology aimed specifically at addressing the unique situation and need of African-Americans, including perceived needs for dignity, economic security and security from the police. (Tr. 41-42, 53.) Only African-Americans were permitted to join the NOI and to attend NOI services. *fn6" NOI doctrine exhorted members to use religion to do something for themselves, thereby bettering their existence. (Tr. 42-43.)

 After Elijah Muhammad's death in 1975, his son, Wallace Deen Muhammad, also called Warith Deen, was designated to succeed his father as the leader of the NOI. (Tr. 47; Pl. Ex. 55 at 263-64.) Over the next decade, Wallace Deen Muhammad led the NOI into orthodox Islam. (Tr. 49; Pl. Ex. 55 at 264-65.) However, some NOI followers dropped out of the movement, while others formed splinter groups. (Tr. 49-50; Pl. Ex. 55 at 267.) Professor Lincoln testified that fourteen such groups were formed after Elijah Muhammad's death. (Tr. 49-50, 101.) In 1977, Louis Farrakhan left Wallace Deen Muhammad's community and resurrected the original NOI as it had been under Elijah Muhammad. (Tr. 50-51; Pl. Ex. 55 at 268.) NOI currently has members throughout the country, and its principal mosque is headquartered in Chicago. There are several mosques in the New York City metropolitan area. (Tr. 850; Pl. Ex. 55 at 267.)

 All NOI members are of African descent. (Tr. 218; Pl. Ex. 55 at 20.) Most NOI followers convert during adulthood to NOI from the faith, often Christianity, followed in their childhood homes. (Pl. Ex. 55 at 25-26.) Many of the men who convert to NOI, including some of the plaintiffs, do so while incarcerated. (Tr. 74, 148, 255, 847, 849.) One reason why the prisons are a rich source of recruits for the NOI is that prisoners are among the most disaffected members of society. (Tr. 74-75.) There is frequently a racial component to this disaffection; that is, some black prisoners feel that they are the victims of a world controlled by whites. (Tr. 75.) In addition, prisoners also have considerable amounts of time to reflect on their lives. (Tr. 75.) Because many of the men who convert do so while incarcerated, the NOI has made efforts to be as active as possible in prison systems throughout the United States. (Pl. Ex. 55 at 77-78, 106-10; Tr. 849.) During the trial of the instant action, at least three witnesses -- Imam Umar, Minister 9X and Antonio McCloud -- testified about the NOI's activities in the prisons in the United States. (Tr. 503, 805, 808-09, 811, 816, 848-50, 874-76, 882-83.)

 While members of the NOI have some distinctive beliefs and practices not shared by other Muslim groups, followers of the NOI and orthodox Muslims *fn7" share some common beliefs. For example, all Muslims, including members of the NOI, believe that Islam is based on the "five pillars", i.e., shahada (declaration of the faith), salat (prayer), zakat (charity), sawam (fasting), and hajj, (pilgrimage to Mecca). (Tr. 93-94, 553-54.) Muslims throughout the world, including members of the NOI, affirm their faith in the shahada -- "there is no God but Allah and Muhammad is the seal of the prophets" -- and all Muslims believe Muhammad is the last "prophet." (Tr. 22, 33, 553-54.)

 Unlike orthodox Muslims, NOI members believe that Allah came to the United States in 1930 in the person of Fard. (Tr. 32-33, 527, 688-89; Pl. Ex. 1 at 27-28, 145-46, Pl. Ex. 6 at 14.) They also believe that Fard is the great Mahdi, who is, according to Islamic tradition, the greatest teacher who comes at the end of time. (Tr. 32, 34, 52-53.) Also, unlike orthodox Muslims, NOI members believe that Elijah Muhammad is the "messenger of God." (Tr. 33, 53.) NOI followers do not recognize "imams" as religious leaders; NOI clergymen are referred to as "ministers." (Tr. 151-52, 887.) Members of the NOI do not believe in life after death. (Pl. Ex. 1 at 31-32; Pl. Ex. 6 at 14.)

 NOI followers also have a distinctive creation story. They believe that trillions of years ago, a great explosion separated the earth and the moon. Once the earth cooled, there was Allah, who was black, and a world populated only by black people. However, the devil, "Yakub," along with twenty-four mad scientists, conducted a series of genetic experiments on the Island of Patmos. Over time, they produced non-black genes from which the different races resulted -- brown, red, yellow and white -- each progressively less pure and less black. (Tr. 39-40; Pl. Ex. 1 at 28, Pl. Ex. 55 at 71-73.) Professor Lincoln has called this belief "the central myth of the Black Muslim movement." (Pl. Ex. 55 at 72.) Followers of the NOI believe that all blacks are divine and thus have a special relationship with Allah; they believe whites are ungodly and devils by nature. (Tr. 556; Pl. Ex. 55 at 63, 69-72, 104.) Followers of the NOI also believe that black people in America are part of the "lost and found nation." (Pl. Ex. 1 at 28; Pl. Ex. 55 at 71.)

 Like all Muslims, members of the NOI follow the Holy Quran. (Tr. 23-24, 554; Pl. Ex. 55 at 118.) However, according to Professor Lincoln, the writings that are "critical" to NOI believers are those of their leaders, i.e., Elijah Muhammad and Louis Farrakhan. (Tr. 24, 76-77, 92.) The Final Call newspaper, the book Message to the Black Man in America by Elijah Muhammad and various study guides and lessons are among the publications read by followers of the NOI. (Tr. 77-78, 228-30, Pl. Ex. 55 at 124-29, 269.)

 NOI members, like other Muslims, observe Ramadan. (Tr. 563-64.) NOI members also celebrate several holidays not observed by other Muslim sects. Among them are Savior's Day on February 26 (to honor Fard), Founder's Day on October 7 (to honor Elijah Muhammad) and a daylight fast similar to Ramadan during the month of December. (Tr. 33-35.) The December Fast was instituted in opposition to the Christmas holiday and to focus the attention of followers away from what Elijah Muhammad believed to be the temptations during December of irreligious excesses -- in particular, Santa Claus, commercialization of the holiday and celebratory overeating. (Tr. 35-36.)

 Followers of the NOI follow a variety of restrictions in their day-to-day lives. For example, they are not to eat pork or cornbread, gamble, smoke, drink liquor, use drugs, overeat or buy on credit. They are taught to be clean-shaven and do not wear beards or moustaches. (Tr. 36, 150-51; Pl. Ex. 55 at 18, 76-77.) They are supposed to pray five times a day facing east. (Tr. 151.) They believe premarital and extramarital sex is immoral. (Tr. 36; Pl. Ex. 55 at 76.)

 The evidence offered at trial concerning whether the NOI should be considered a "Muslim" religion and by whom it is so considered was varied. For example, certain of Professor Lincoln's writings suggest the NOI is a sect of Islam:

The Muslim dream is to have a solid Black Muslim community in the United States, recognized and supported by Moslems throughout the world as an accepted part of Islam. This is not sheer expediency: from the earliest days of the movement, the Black Muslims have considered themselves devout adherents of the Moslem faith. They recognize Allah as the one true God (though they see Him not as a unique deity but as the Supreme Black Man among Black Men, all of whom are divine). They base their services on both the Quran and the Bible, and they are learning Arabic so as to be able to rely entirely on the original Quran. They observe the classic Moslem prayer ritual and dietary laws, and they hold in high esteem the traditional pilgrimage to Mecca.

 (Pl. Ex. 55 at 220.) On the other hand, Professor Lincoln also has written that:

On certain fundamental points of doctrine, however, the Black Muslims have departed widely from the orthodox Muslim tradition. Partly for this reason, and partly from an instinctive militancy toward newcomers, the official representatives of orthodox Islam in the United States have refused any recognition of the Black Muslims.

 (Pl. Ex. 55 at 220.) According to Professor Lincoln, two NOI doctrines are "at the heart of the controversy: their insistence that blacks must separate themselves from the abhorrent and doomed white race and their belief that it is the manifest destiny of the Black Nation to inherit the earth." (Pl. Ex. 55 at 221.) Professor Lincoln, noting "the orthodox Moslem ideal of an all-embracing unity of humankind", has questioned whether these two doctrinal differences are "so extreme that the Black Muslims must be said to have excluded themselves from Islam." (Pl. Ex. 55 at 221.) Professor Lincoln's conclusion was that the NOI appears to be a Muslim sect:

The question will have to be answered by Moslem theologians, but it seems likely that they will find the Black Muslims to be within the pale -- a legitimate if somewhat heretical Moslem sect. Every faith has its deviates, and every international faith makes broad allowances for interpretations of doctrine to fit local conditions. The fact that orthodox Moslems in America reject the movement has no real significance; most Christian sects and denominations were likewise spurned by the orthodox in their founding years. And a clear precedent exists in Islam itself for the ultimate recognition of heretics in sects despite major doctrinal differences.

 (Pl. Ex. 55 at 221.) Similarly, at trial, there was other evidence and testimony indicating that some orthodox Muslims might not consider followers of the NOI to be "Muslims" (e.g., Tr. 88, 157, 191, 473, 482, 546-47; Pl. Ex. 15), but there also was testimony indicating that NOI followers would be considered "Muslims." (E.g., Tr. 88, 94, 686.) According to an article written by Imam Umar, an orthodox Muslim imam employed by the state DOCS, Louis Farrakhan, the current leader of the NOI, is not an orthodox Muslim, refuses to "accept the truth of the Holy Quran" and "teaches religious falsehood." (Pl. Ex. 60.) In this article, Imam Umar wrote:

If [Louis Farrakhan] changes and accepts to evolve and draw closer to a genuine practice of Islam, as did his leader the Honorable Elijah Muhammad and those who followed him, he will have to accept Islam the religion, admit and condemn his past teaching of religious falsehood, become Muslim[,] indeed, become an Imam and conduct himself somewhat like Imam W. Deen Mohammed [a former leader of the Nation of Islam, who has since become an orthodox Muslim) has done, as a Muslim. If he does, the Nation of Islam will be no more.

 (Pl. Ex. 60.) Imam Umar's article focuses on differences between the tenets of the NOI and mainstream Muslims, in particular the NOI's beliefs already described that the black man is God and the white man is the devil. (Pl. Ex. 60.)

 II. Plaintiff Muhammad's Allegations

 Plaintiff Muhammad joined the NOI in the mid-1980's, prior to his incarceration. (Tr. 287.) From 1989 to 1991, Muhammad was incarcerated in the Bronx House of Detention for Men and various jails on Rikers Island while awaiting trial. (Tr. 286.) Following his conviction, he was transferred to the custody of DOCS until his parole in January 1994. (Tr. 287.) Muhammad is currently a ministerial representative under the auspices of Minister Conrad Muhammad of Mosque No. 7 in Harlem, New York. (Tr. 289.)

 While on Rikers Island, Muhammad maintained a cordial relationship with Imam Luqman, currently the DOC Director of Ministerial Services, and, at least initially, with most of the individual DOC Muslim chaplains, many of whom he knew personally prior to his incarceration. (Tr. 414-15.)

 While on Rikers Island, Muhammad was permitted to wear attire that identified him as an NOI member, specifically, a suit, white shirt, bow tie and crescent pin. *fn8" (Tr. 415.) As a result, many inmates approached Muhammad with questions about NOI and Minister Louis Farrakhan. (Tr. 415-16.) Muhammad testified he was mindful of a DOC prescription against proselytizing, *fn9" had no dispute with the necessity for the regulation and thus discussed NOI matters in a neutral manner, "without, of course, causing any security ruckus." (Tr. 293, 415-16.)

 Muhammad explained his role as a member of the NOI to educate prospective followers. He testified that:

Our job is, as I said to you previously, we are like bait to fish. Fish that swim up against the stream or against the sea generally die, because they're going against the grain of their own nature.
Eventually, when they smell food in the atmosphere, they go after food. We become the food. Or as the bible may put it, the bread of life. And they take part of that bread of life and they become living beings again or what you and I both know as the being reborn.

 (Tr. 416-17.) In fact, Muhammad testified that he provided ample bait to the fish, recalling that he "fed" approximately ninety-five young black men at three Rikers Island facilities alone. (Tr. 417-18.) Muhammad did not receive an infraction from DOC staff for proselytizing. (Tr. 416.)

 While at Rikers Island, Muhammad studied to become a ministerial representative. In the course of his studies, many "courtesies" were extended to him by DOC officers and officials, some of whom were themselves NOI members. (Tr. 419-20.) These officers, including one captain, personally delivered study materials to Muhammad. *fn10" (Tr. 419-20.) Some material was sent to him by Minister Nelson Muhammad, who was then the minister of Temple No. 7. (Tr. 420.) Muhammad also met with Minister Nelson Muhammad in a personal visit at Rikers Island and spoke on the telephone with Minister Nelson Muhammad and Minister Louis Farrakhan while at Rikers Island. (Tr. 420-421.)

 Although he was an NOI member, Muhammad never requested an opportunity to observe the December Fast while incarcerated in DOC facilities because, at that time, he had not acquired sufficient knowledge of its significance to his faith. (Tr. 320.) Muhammad attended the regular Friday service for Muslims and Muslim classes. (Tr. 670.) Although Muhammad testified to a dispute between him and some Muslim inmates who once barred his access to Jumu'ah service, he does not allege that DOC personnel prevented him from attending the Muslim service. (Tr. 425-27.) He believes Imam Askia Muhammad, a DOC Muslim chaplain, played some role in this incident. (Tr. 427.)

 III. Testimony of Imam Askia Muhammad

 Imam Askia Muhammad ("Imam Askia") has been a chaplain for DOC for the past four and a half years. (Tr. 668.) He is currently assigned to the Queens House of Detention and the James A. Thomas Center ("JATC"), a correctional facility on Rikers Island. (Tr. 669.) At the Queens House of Detention, which houses some 500 inmates, approximately thirty inmates identify themselves as Muslim. At JATC, which houses some 1200 inmates, approximately 150 identify themselves as Muslim. (Tr. 669.) Imam Askia is currently unaware of any inmates, in either of these facilities, who identify themselves as members of the NOI (Tr. 669.) During the four and a half years Imam Askia has been a DOC facility chaplain, he can recall only three inmates who were members of the Nation of Islam. (Tr. 677.)

 Imam Askia was previously assigned to the George R. Vierno Center ("GRVC") on Rikers Island, where he knew one inmate who identified himself as a member of the NOI -- plaintiff Muhammad. (Tr. 669.) Imam Askia and plaintiff had a friendly relationship. (Tr. 671.) Plaintiff regularly attended Imam Askia's Muslim classes which were typically held three times a week, as well as the weekly congregate prayer services. (Tr. 670.) In addition, Imam Askia and plaintiff had frequent private conversations in the Imam's office, in the mosque and in the hall. (Tr. 670.) They discussed a variety of topics, including conditions in the facility, food and religious matters. (Tr. 670-71.)

 While DOC does not officially recognize the position of "Muslim inmate representative," it is the practice of Imam Askia to elect or select an inmate representative to assist him in order to create a sense of community among the Muslim inmates and to teach the inmates to accept leadership from one of their own. (Tr. 671-72.) Where Imam Askia believes that the inmates are mature and knowledgeable about the principles of Islam, he presides over a process in which the inmates elect their own representative. (Tr. 672-73.) Imam Askia always supervises the process to ensure that it is conducted in a peaceful and fair manner and does not compromise the security of the facility. (Tr. 673.) While plaintiff was incarcerated at GRVC, he was selected Muslim inmate representative in an election conducted without the knowledge, consent or supervision of Imam Askia. (Tr. 673.) Imam Askia and plaintiff subsequently discussed the election, and Imam Askia explained that he was troubled because the process had taken place in his absence. (Tr. 674.) Imam Askia also explained that he did not believe that plaintiff possessed the requisite qualities for inmate representative. (Tr. 674.) Imam Askia explained that while he considered plaintiff a "good brother" and that he loved him, he did not feel that plaintiff could establish the necessary rapport with inmates and the administration required of the inmate representative. (Tr. 674.)

 There was differing testimony concerning whether the discussion concerning plaintiff's suitability to serve as the Muslim inmate representative touched on plaintiff's beliefs as a member of the NOI. (Tr. 674.) Plaintiff testified that Imam Askia asked him to repudiate his beliefs, became hostile and used derogatory language. (Tr. 317-18.) However, based on the testimony and demeanor of the witnesses, I find the testimony of Imam Askia to be credible. Imam Askia testified that he did not ask plaintiff to abandon his beliefs as a member of the NOI. (Tr. 674.) I also find that Imam Askia did not raise his voice, jump out of his chair or use profanity in his discussion, ...

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