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March 11, 1998

THOMAS A. COUGHLIN, III, et al., Defendants.

The opinion of the court was delivered by: PECK

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Jed S. Rakoff, United States District Judge:

 In an earlier round in this case, the Second Circuit held that "it is well established that prisoners have a constitutional right to participate in congregate religious services . . . . Confinement in keeplock does not deprive prisoners of this right." Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). Familiarity with that decision is assumed. On remand, the parties engaged in discovery and defendants now renew their motion for summary judgment. Defendants contend that (1) they denied Salahuddin's participation in congregate religious services for legitimate penalogical reasons, (2) they are entitled to qualified immunity, and (3) they were not personally involved in any alleged deprivation of Salahuddin's Constitutional rights. For the reasons set forth below, the Court recommends denial of defendants' summary judgment motion because (1) issues of fact exist as to whether defendants' denial of Salahuddin's participation in congregate religious services was justified by legitimate penalogical reasons, (3) defendants are not entitled to qualified immunity because the law in the Second Circuit in 1985 was clear that prisoners, including keeplocked prisoners, could not be denied participation in congregate religious services without valid individualized determinations, and (3) defendants Robert Kuhlman, Ernest Edwards, Napoleon Mitchell and Frank McCrea, but not defendant Thomas A. Coughlin, III, were personally involved. The Court further recommends granting summary judgment to defendants Coughlin and "Lewis" for lack of personal involvement. Finally, the Court requires defense counsel to show cause why he should not be sanctioned pursuant to Fed. R. Civ. P. 11 and/or 28 U.S.C. ยง 1927.


 Plaintiff Salahuddin's Transfer to Sullivan

 Due to overcrowding in the prison system, the New York State Department of Corrections ("DOCS") decided to transfer inmates to Sullivan Correctional Facility in July 1985, although construction on that maximum security prison had not yet been completed. (Defs.' 56.1 Stmt. PP 1-4; Hitchen Aff. P 3; Edwards Aff. P 2; Salahuddin 56.1 Stmt. *fn1" P 4; Salahuddin Aff. P 5 & Ex. CC.) *fn2" Sullivan was not yet capable of handling general population inmates because it could not provide them with necessary programs. (Defs.' 56.1 Stmt. P 4; Hitchen Aff. P 4; see Salahuddin 56.1 Stmt. PP 4, 10; Salahuddin Aff. PP 5-6 & Ex. CC.) Therefore, DOCS decided that only inmates who were subject to disciplinary confinement in their cells, known as "keeplock" status, would be transferred to Sullivan. (Defs.' 56.1 Stmt. P 4; Hitchen Aff. P 4; Edwards Aff. P 2; Salahuddin 56.1 Stmt. P 4; Salahuddin Aff. P 5.)

 Chester Clark, Director of Classification and Movement, the subdivision of DOCS that deals with prisoner movement among prisons, directed personnel at the men's maximum security prisons to select keeplocked inmates for transfer to Sullivan. (Defs.' 56.1 Stmt. P 5; Hitchen Aff. PP 2, 4; Salahuddin 56.1 Stmt. P 5; Salahuddin Aff. P 5.) Plaintiff Richard Akbar Salahuddin, *fn3" an inmate at Auburn Correctional facility who had been keeplocked for violating prison rules, was selected for transfer to Sullivan by Joseph Costello, Auburn's Deputy Superintendent. (Defs.' 56.1 Stmt. PP 6-9; Hitchen Aff. PP 5, 6 & Ex. B; Salahuddin 56.1 Stmt. P 6; Salahuddin Aff. P 5.) Salahuddin arrived at Sullivan on August 7, 1985 and was placed in keeplock. (Defs.' 56.1 Stmt. P 31; Hitchen Aff. P 6; Edwards Aff. P 8; Salahuddin Aff. Ex. B: Salahuddin Dep. at 8, 28; Salahuddin Aff. Ex. A.)

 Soon after his arrival, a counselor at Sullivan realized, upon review of Salahuddin's files, that Salahuddin's transfer to Sullivan had been a mistake since his keeplock stay was scheduled to expire on August 23, 1985, just 16 days after his arrival. (Hitchen Aff. P 8 & Ex. C; Salahuddin Dep. at 41.) Salahuddin was released from keeplock as scheduled on August 23. (Salahuddin Dep. at 38, 41, 58.) Salahuddin was transferred, on an expedited basis, from Sullivan back to Auburn on August 30, 1995. (Defs.' Br. at 4; Defs.' 56.1 Stmt. P 49; Hitchens Aff. PP 9, 10 & Ex. C; Edwards Aff. P 12 & Ex. E; Salahuddin Aff. Ex. A.)

 When Salahuddin had arrived at Sullivan, there were three categories of inmates at Sullivan: (1) keeplocked inmates; (2) cadre inmates, who were maximum or medium security inmates who had volunteered for transfer and cleaned and served food at Sullivan; and (3) Annex inmates, housed only in Sullivan's Annex facility, who were minimum security inmates that worked in the community surrounding Sullivan, as well as in Sullivan as custodians and food service workers. (Defs.' 56.1 Stmt. P 13; Edwards Aff. P 4; Salahuddin 56.1 Stmt. P 17; Salahuddin Aff. P 11.)

 DOCS' Denial of Salahuddin's Requests to Attend Congregate Muslim Religious Services

 DOCS asserts that, for a variety of reasons, DOCS generally does not commingle maximum and minimum security inmates. (Defs.' 56.1 Stmt. PP 15-24; Edwards Aff. P 5; but see Salahuddin 56.1 Stmt. PP 26-32 & Salahuddin Aff. P 17 & Ex. L.) DOCS also asserts that it generally does not permit keeplocked inmates to commingle with other inmates, keeplocked or not, because they pose increased security risks due to their violation of prison rules. (Defs.' 56.1 Stmt. PP 25-27; Edwards Aff. PP 6, 10; but see Salahuddin 56.1 Stmt. PP 34-36; Salahuddin Aff. P 18 & Ex. L; Salahuddin Dep. at 8-9, 14-18.) According to DOCS' affidavit testimony, Sullivan was "not equipped to provide congregate religious services to maximum security inmates of any religion when Sullivan first opened." (Edwards Aff. P 11.) DOCS asserts that only Annex and cadre inmates were allowed to participate in congregate religious services when Sullivan first opened. (Defs.' 56.1 Stmt. P 14; Edwards Aff. P 4.) *fn4"

 Salahuddin, however, asserts that congregate religious services were available, for religions other than Muslim, to all Sullivan prisoners, including those in keeplock, and he submits numerous Sullivan memoranda to support his contention. (Salahuddin 56.1 Stmt. PP 18-20, 38, 48-49; Salahuddin Aff. PP 12, 23-24 & Exs. C (8/9/85 Religious Service Request Form), D (8/12/85 Memo), E (8/26/85 Memo), F (9/4/85 Memo), G (9/30/85 Memo), H (10/24/85 Memo), I (10/28/85 Memo), J (12/2/85 Memo), N (8/19/85 Memo), & O (8/22/85 Memo).)

 For example, a Sullivan memo from Deputy Superintendent Edwards (the same defendant Edwards who submitted an affidavit in support of defendants' summary judgment motion) to "All Housing Unit Officers" dated August 9, 1995 -- just two days after Salahuddin's arrival at Sullivan -- stated:

On Sundays, Religious Services will be held by Rev. Ortquist. Any inmate who wishes to attend will fill out the attached form and return it to my office for approval or denial.

 (Salahuddin Aff. Ex. C.) The attached form made clear that this directive applied to keeplocked inmates, for it was headed at the top: "Request to attend scheduled Religious Services by keeplocked inmate." (Id.)

 The minutes of an August 12, 1985 Sullivan "Executive Team Meeting" state that:

Rev. Ortquist requested that we coordinate religious services for all denominations. Chaplain Latif, Muslim Iman is on vacation this week, therefore, will not be available.

 (Salahuddin Aff. Ex. D P 7.)

 The August 19, 1985 Executive Team Meeting minutes state:

Religious Services :
Rev. Ortquist reported that the weekend services went well. He also advised the executive team that the inmates questioned the form letter that was sent out relative to attending scheduled religious services. The Catholic inmates wanted to know when a Chaplain would be available to them. Albany is making arrangements to have a Catholic Chaplain assigned to this facility. The biggest complaint that Rev. Ortquist received from the inmates was the lack of commissary buys. Chaplain Latif, Muslim Iman, is expected Wednesday from Woodbourne C.F. A Muslim holiday will be celebrated shortly and therefore, an appropriate meal should be prepared for the occasion.

 (Salahuddin Aff. Ex. N at 1.) Nevertheless, by August 22, 1985, Rev. Ortquist wrote a memo to Supt. Kuhlmann noting that "the decision not to celebrate this [Feast of Idul-Adah] special religious service has been made," at least for keeplocked prisoners. (Salahuddin Aff. Ex. O.)

 The August 26, 1985 "Executive Team Meeting" minutes stated:

Religious Services:

 (Salahuddin Aff. Ex. E at 2.)

 By September 30, 1985, the Sullivan Executive Team Meeting minutes show that "religious services are running smoothly . . . [but] Rev. Ortquist advised that Iman Latif has not been present at this facility to perform religious services, and so the Muslim population have [sic] been complaining." (Salahuddin Aff. Ex. G at 3; see also Salahuddin Aff. Ex. L.) *fn5"

 As a keeplocked inmate at Sullivan in August 1985, Salahuddin was denied the ability to participate in three Friday night Jumu'ah *fn6" congregate religious services and congregate religious services for the holiday of Eid-ul-Adha. *fn7" (Defs.' Br. at 4; Salahuddin Dep. at 29-31, 60-61.) Salahuddin also was denied access to one Friday night Jumu'ah congregate religious service after his keeplock period had ended. (Salahuddin 56.1 Stmt. P 23; Salahuddin Aff. P 15; Salahuddin Dep. at 30, 60-61.)

 Defendant Ernest Edwards, who was Deputy Superintendent at Sullivan in 1985, *fn8" submitted an affidavit in support of defendants' summary judgment motion which opined, based on his current review, for the current litigation, of Salahuddin's disciplinary records, that Salahuddin was not suitable to participate in congregate services in August 1985. (Defs.' 56.1 Stmt. PP 29-41; Edwards Aff. PP 1, 8-9 & Ex. D.) Salahuddin opposes Edwards' conclusions, and challenges the accuracy of a computer report relied upon by Edwards. (Salahuddin Aff. PP 19-31.) Edwards based his conclusion upon Salahuddin's alleged poor custodial adjustment and alleged repeated rule violations. (Defs.' 56.1 Stmt. PP 29-41; Edwards Aff. PP 8-9 & Exs. D, E; Hitchen Aff. Exs. B, C.) Among the rules Salahuddin allegedly had broken were those against assault and possessing contraband, violations that Edwards felt were particularly relevant because tools were strewn about Sullivan due to the ongoing construction. (Defs.' 56.1 Stmt. PP 37-38; Edwards Aff. P 8.) Salahuddin responds that if this truly had been a concern, it could have been "nullified via a search of my person before and after I attended services, including handcuffing my person before and after services and not escorting my person via the construction site." (Salahuddin 56.1 Stmt. P 42; see also Salahuddin Aff. P 20.)

 Salahuddin has submitted a November 26, 1982 DOCS Directive No. 4202 concerning "Religious Programs and Practices." (Salahuddin Aff. Ex. P.) The Directive requires denial of a keeplocked inmate's request to attend religious services to be in writing and to state the reasons for the decision. (Salahuddin Aff. Ex. P, P H(4).) *fn9" There is no evidence that this was done in this case.


 Salahuddin filed a pro se complaint with this Court, asserting inter alia that his religious liberty had been violated. *fn10" See Salahuddin v. Coughlin, 993 F.2d 306, 307 (2d Cir. 1993). The district court found that DOCS had acted reasonably and, therefore, granted summary judgment against Salahuddin on his free exercise claim:

"[DOCS] acted reasonably in transferring keeplocked inmates to Sullivan before construction was complete to avoid overcrowding at other facilities, despite the temporary unavailability at Sullivan of programs and congregate religious services. Salahuddin's constitutional claim on this ground is denied."

 Salahuddin v. Coughlin, 993 F.2d at 308 (quoting district court decision).

 On appeal, the Second Circuit reversed the dismissal of Salahuddin's free exercise of religion claim. The Second Circuit first reviewed the law as to keeplocked prisoners' rights to attend religious services:

It is well established that prisoners have a constitutional right to participate in congregate religious services. Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.), cert. denied, 492 U.S. 909, 109 S. Ct. 3224, 106 L. Ed. 2d 573 (1989). Confinement in keeplock does not deprive prisoners of this right. Id. A prisoner's right to practice his religion is, however, not absolute. See Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.), cert. denied, 498 U.S. 951, 111 S. Ct. 372, 112 L. Ed. 2d 335 (1990).
In O'Lone v. Estate of Shabazz, the Supreme Court held that prison regulations alleged to infringe prisoners' free exercise rights are to be judged by a "reasonableness" standard less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights. 482 U.S. at 349, 107 S. Ct. at 2404-05. ...

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