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November 25, 1995

RAYMOND T. ROURKE, Plaintiff, against NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; GEORGE COOPER, Deputy Superintendent of Riverview Correctional Facility, in his Official and Individual Capacities, WAYNE BARKLEY, Superintendent of Riverview Correctional Facility, New York State Department of Correctional Services, in his Official and Individual Capacities; WILLIAM COSTELLO, Deputy Superintendent of Security at Riverview Correctional Facility, New York State Department of Correctional Services, in his Individual and Official Capacities; and THOMAS TESTO, Special Assistant to the Commissioner for the Labor Relations, New York State Department of Correctional Services, in his Official and Individual Capacities, Defendant.

The opinion of the court was delivered by: MCAVOY


 Plaintiff, RAYMOND T. ROURKE, is a full-blooded native american indian, and a member of the Mohawk nation. In November 1989, the plaintiff became a corrections officer at Riverview Correctional Facility ("Riverview").

 In 1991, the plaintiff stopped cutting his hair allegedly in accordance with the beliefs of the Longhouse religion, the traditional religion of the Mohawk indians. Corrections department Directive 3083 states that male correction officers' hair length may not exceed one-half inch below the top of the shirt collar. That same Directive 3033 permits female officers to grow their hair longer than males, provided that they arrange it so that it does not fall more than one-half inch below the top of the shirt collar. By April 1991, the plaintiff's hair had grown to an impermissible length. Sometime in the summer of 1991, Howard Maneely, then Deputy Superintendent of Security at Riverview, told the plaintiff to cut his hair. The plaintiff declined to do so and explained that his refusal was for religious reasons. The plaintiff was instructed to wear his hair in a ponytail.

 The plaintiff wore his hair in that manner until September 25, 1992, approximately fourteen months. At that time, the new Deputy Superintendent of Security, WILLIAM COSTELLO, a defendant herein, gave the plaintiff verbal and written notice that he had to comply with the Directive and cut his hair. The plaintiff did not comply, and was given a notice of immediate suspension from duty without pay. On September 29, 1992, defendant THOMAS TESTO, the Special Assistant for Labor Relations, gave the plaintiff a written notice of dismissal.

 The plaintiff appealed the dismissal through arbitration as provided in the collective bargaining agreement negotiated by his union. In addition, on January 22, 1993, the plaintiff commenced an Article 78 proceeding in New York State Supreme Court. The plaintiff sought to secure reinstatement and to obtain a judgment declaring that Directive 3083, as applied to the plaintiff, violated the New York state constitution.

 On February 3, 1993, an arbitrator ruled that the plaintiff was not entitled to an exception from the hair length policy. The plaintiff was ruled to have disobeyed a superior. The arbitrator ordered him suspended for 21 days, reinstated to his position, and granted back pay.

 On March 3, 1993, the plaintiff was again ordered to cut his hair, this time by a written order of the defendant GEORGE COOPER, the Deputy Superintendent of Riverview. Again, the plaintiff explained that he could not comply because of his religious beliefs. Defendant Cooper gave the plaintiff a written notice of suspension from duty without pay. On March 4, 1993, the plaintiff was dismissed. This time the dismissal was upheld. The arbitrator again found that the plaintiff had failed to obey an order. The suggestion of the arbitrator was that the plaintiff should have complied with the order and sought a remedy thereafter.

 The State appealed, and a unanimous Third Department affirmed the lower court ruling on July 28, 1994. The court found that the State had "not shown that any legitimate interest will be advanced by refusing to grant an exception." The plaintiff was reinstated to his position with back pay.

 This case was commenced on June 8, 1994, and is brought pursuant to Title VII, 42 U.S.C. § 1983, and the Religious Freedom Restoration Act of 1993 (RFRA). The plaintiff has moved for partial summary judgment, for an order to compel and extend discovery, and for leave to file an amended complaint.

 In support of an order for partial summary judgment, the plaintiff argues that certain issues should be precluded from consideration by this court, i.e., that the defendants must be collaterally estopped from relitigating certain issues, because they have already been decided by the courts of New York state. On that basis, the plaintiff argues that he is entitled to summary judgment as to certain findings of the state courts and as to liability pursuant to his Title VII claim.

 The plaintiff also argues that pursuant to 42 U.S.C. § 1981a, he has been intentionally discriminated against. Accordingly, the plaintiff argues that this court should award compensatory and punitive damages.

 The plaintiff argues that Directive 3083 violates the first amendment. More particularly, the plaintiff argues that he is entitled to summary judgment as to his "hybrid" first amendment claim, in that the Directive burdens the free exercise of the plaintiff's religious beliefs, and impinges upon his free speech and privacy rights, such that it must fail unless the State shows that it has a compelling interest.

 The plaintiff also claims that the defendants should be held liable under the RFRA. The plaintiff argues that the RFRA creates a private cause of action and applies retroactively. Moreover, the plaintiff argues that as a matter of law the defendants cannot meet the compelling interest standard, and thus, must be granted summary judgment under the RFRA.

 In addition to the contentions relating to the motion for partial summary judgment, the plaintiff argues that he should be permitted to amend his complaint to clarify that he is making a claim pursuant to 42 U.S.C. § 1981a. The plaintiff argues that granting such relief will result in no prejudice to the defendants.

 Finally, the plaintiff seeks an order compelling the defendants to answer interrogatories, and granting an extension to the discovery time period.

 The court will now examine the points of counsel.


 A. Standard For A Motion For Summary Judgment

 The standard for granting a motion for summary judgment is well-settled. Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). There must be more than a "metaphysical doubt as to the material facts." Delaware & H. R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990) (quoting, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). "In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994) (quoting, 10A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2721 at 40 (2d ed. 1983)). However, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 2552-2553, 91 L. Ed. 2d 265 (1986); Azrielli, 21 F.3d at 517. Any assessments of credibility and all choices between available inferences are matters to be left for a jury, not matters to be decided by the court on summary judgment. Id.; See, e.g., Fed.R.Civ.P. 56(e), 1963 Advisory Committee Note; Agosto v. Immigration and Naturalization Service, 436 U.S. 748, 756, 98 S. Ct. 2081, 2086-87, 56 L. Ed. 2d 677 (1978); Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 472-73, 82 S. Ct. 486, 490-91, 7 L. Ed. 2d 458 (1962); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Centronics Financial Corp. v. El Conquistador Hotel Corp., 573 F.2d 779, 782 (2d Cir. 1978); 6 Moore's Federal Practice P 56.02 at 56-45 (2d ed. 1993). "Only when reasonable minds could not differ as to the import of the evidence is summary judgement proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991). It is with the foregoing standards in mind that the Court turns to the issues presented.

 B. Collateral Estoppel

 The plaintiff argues that certain factual findings made by the state court in prior proceedings between these parties, and relating to the same incidents at issue in this proceeding, should be binding on this court. Accordingly, the plaintiff asserts that the defendants may not relitigate those factual issues in this case, and summary judgment should be entered for the plaintiff. The defendants contest that assertion.

 Notwithstanding the fact that the plaintiff fails to set forth and apply a specific standard relating to the preclusive doctrine of res judicata, or its sub-species, collateral estoppel, the court determines that the plaintiff intends to invoke the doctrine of collateral estoppel, and will examine the plaintiff's contentions accordingly. "Different rules and restrictions apply to each doctrine, and although some courts [and parties] fail to distinguish between the two, (citation omitted), it is important in this case to be cognizant of their distinctiveness." Burgos v. Hopkins, 14 F.3d 787 (2d Cir. 1994).

 The full faith and credit clause of the United States Constitution compels federal courts to give the same preclusive effect to a state court judgment as would be given in the state in which it was rendered. Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 81, 104 S. Ct. 892, 896, 79 L. Ed. 2d 56 (1984); see, 28 U.S.C. § 1738. "Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d 308 (1980). The leading New York Court of Appeals opinion states that "collateral estoppel . . . precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same." Ryan v. New York Telephone Co., 62 N.Y.2d 494, 501, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487 (1984) (citations omitted). "The issue must have been material to the first action or proceeding and essential to the determination therein, (citations omitted), and it must be the point actually to be determined in the second action or proceeding such that 'a different judgment in the second would destroy or impair rights or interests established by the first.'" Ryan, 62 N.Y.2d at 502, 478 N.Y.S.2d at 826 (quoting, Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 307, 165 N.E. 456 [Cardozo, Ch. J.]).

 In this case it is the plaintiff who seeks to assert the doctrine. The defendants may defeat the application of collateral estoppel if they can show that they did not have a "full and fair opportunity ... to contest the decision now said to be controlling ..." Id. "Among the specific factors to be considered are the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation." 62 N.Y.2d at 502, 478 N.Y.S.2d at 827.

 The plaintiff herein prevailed in an Article 78 proceeding, in New York supreme court, and now seeks to invoke the doctrine of collateral estoppel offensively to preclude the defendants from "relitigating" certain issues allegedly decided in the Article 78 proceeding, and to obtain summary judgment as to the 42 U.S.C. § 1983, Title VII, and RFRA claims. As to the Title VII and RFRA claims, it is clear that there is no absolute bar to the application of collateral estoppel. As to the claim brought pursuant to 42 U.S.C. § 1983, the defendants argue that such a bar exists. The court will first ...

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