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GILMORE-BEY v. COUGHLIN

June 5, 1996

LARRY GILMORE-BEY, Plaintiff,
v.
THOMAS COUGHLIN, et al., Defendants.



The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 On September 21, 1993, the plaintiff, Mr. Larry Gilmore-Bey, who is a member of the Moorish Science Temple of America ("MSTA"), a religious sect, filed this action alleging violations of his rights under the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. ("RFRA"), the Free Exercise and Establishment Clauses, the Equal Protection Clause, and under New York State law, while he was incarcerated at Greenhaven Correctional Facility and other correctional facilities operated and controlled by the defendants.

 The remaining defendants in this action are Mr. Thomas Coughlin, the former Commissioner of the New York Department of Correction Services ("DOCS"), Mr. Philip Coombe, Jr., the former Deputy Commissioner of DOCS, Reverend Doctor Earl Moore, who was, at all relevant times, the Assistant Commissioner for Ministerial and Family Services of DOCS, Mr. Iman Warith-Deen Umar, who was the Administrator and Coordinator of Islamic Affairs of DOCS, and Mr. Robert Hanslmaier, who was the Acting Superintendent at Woodburne Correctional Facility, Mr. Christopher Artuz, who was the Superintendent at Greenhaven Correctional Facility, and Mr. Louis Mann, who was the Superintendent at Shawangunk Correctional Facility. This action was dismissed as to defendant Mr. Dennis Bliden.

 By Stipulation and Order approved by this Court dated February 21, 1995, all claims for equitable relief relating to the plaintiff's observance of the MSTA faith have been resolved. This Court in its discretion denied plaintiff's request for declaratory relief on May 31, 1996. *fn1" Accordingly, plaintiff's only remaining claims are for money damages. Presently before this Court for consideration is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Also before this Court is plaintiff's motion for partial summary judgment.

 The Second Amended Complaint filed on May 18, 1995 contains five separate claims. Plaintiff's first claim is that, as an MSTA follower, his right to free exercise of religion has been substantially burdened" by the defendants in violation of the RFRA. Plaintiff's second, third and fourth claims are brought pursuant to § 1983 of Title 42 and allege violations of the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. Plaintiff's final claim alleges that his right to free exercise of religion has been violated under the Constitution and laws of the State of New York. (Second Amended Complaint PP 73-90).

 Plaintiff claims that during the time that he was incarcerated in facilities operated and controlled by defendants he was "intentionally refused . . . fundamental religious liberties" as an MSTA follower. (Id. P 51). Plaintiff asserts that "defendants denied [him] opportunities to exercise [his] religious beliefs that were routinely granted to other, more favored religious groups in correctional facilities operated by defendants." (Id. P 52). Specifically, plaintiff claims that he requested but defendants refused to permit him: (1) to attend congregate religious services for MSTA followers; (2) to observe MSTA holy days; (3) to wear the religious accoutrements of the MSTA faith, namely a fez; and (4) to designate his MSTA faith in the DOCS official records. (Id. P 50).

 It is further alleged that "defendants routinely . . . . engaged in the retaliatory transfer of Mr. Gilmore-Bey from one correctional facility to another in order to suppress the spread of the [MSTA] religion and to prevent [its] followers from seeking the religious freedoms denied to them." (Id. P 65). Plaintiff claims that he was "wrongfully transferred" from Green Haven to Shawangunk Correctional Facility in retaliation for his filing of a grievance requesting religious services. (Id. P 66). While at Shawangunk, plaintiff alleges that he learned that unidentified employees of defendants "had placed a false report in his files which wrongly stated that he had been convicted of murder in Missouri." (Id. P 67). After the false information was expunged from plaintiff's record, he was transferred to Woodburne Correctional Facility. (Id.). The Second Amended Complaint alleges that during "the time periods between transfers," plaintiff's requests for "religious freedoms" were not addressed. (Id. P 68).

 Discussion

 For the reasons that follow, plaintiff's motion for partial summary judgment on the issue of liability under his RFRA claim is denied, and defendants' motion for summary judgment is granted as to plaintiff's remaining claims for money damages. Plaintiff's RFRA claim his Free Exercise and Establishment Clause claims, and his Equal Protection Clause claim are dismissed. This Court declines to exercise supplemental jurisdiction over the remaining New York State law claim, so that claim is dismissed without prejudice.

 The Religious Freedom Restoration Act Claim

 The defendants argue that plaintiff's RFRA claim against them in their official capacities must be dismissed based upon Eleventh Amendment immunity. This Court agrees. RFRA does not abrogate the Eleventh Amendment bar to actions brought against state officials for monetary damages.

 Plaintiff argues that the RFRA clearly and unequivocally abrogates Eleventh Amendment immunity. In support of this proposition, plaintiff cites Rourke v. New York State Dep't of Corrections, 915 F. Supp. 525, 540 (N.D.N.Y. 1996), where the court concluded that "the language of [the RFRA] unequivocally sets forth Congress' intent to abrogate the Eleventh Amendment with respect to claims brought pursuant to this Act." In Rourke, the court reasoned that the RFRA provides that the "government shall not substantially burden a person's free exercise of religion . . . ." and "the term government' includes an agency . . . and official (or other person acting under color of state law) of . . . a State . . . ." 42 U.S.C. § 2000bb-1(a),-2(1). The court further noted that the purposes of the RFRA are "to restore the compelling interest test . . . and to guarantee its application in all cases where free exercise of religion is substantially burdened . . . ." 42 U.S.C. § 2000bb(b)(1). The court then reasoned that this statutory language,

 
"particularly when read together with the definition of 'government' in the Act, clearly supports a finding that the Congress intended to abrogate the Eleventh Amendment with respect to [RFRA]."

 Id. at 540.

 This Court is unpersuaded by the reasoning set forth in Rourke.2 The Second Circuit has noted, "Congressional abrogation occurs . . . 'only [when Congress] mak[es] its intention unmistakably clear in the language of the statute.'" Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 29 (2d Cir. 1991) (quoting Dellmuth v. Muth, 491 U.S. 223, 228, 105 L. Ed. 2d 181, 109 S. Ct. 2397 (1989)). This Court does not read the RFRA statute to demonstrate the explicit and unequivocal intent of Congress to abrogate Eleventh Amendment immunity.

 RFRA specifically provides:

 
"The Congress finds ...

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