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WITHROW v. BARTLETT

July 16, 1998

LASHAWN WITHROW, Plaintiff,
v.
GEORGE J. BARTLETT, et al., Defendants.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 BACKGROUND

 Plaintiff LaShawn Withrow, *fn1" appearing pro se, commenced this action under 42 U.S.C. § 1983. *fn2" Plaintiff, who is currently an inmate at Wende Correctional Facility, alleges that while he was incarcerated at Elmira Correctional Facility ("Elmira"), the defendants violated his constitutional rights by denying him the freedom to practice his religion. Specifically, plaintiff claims that he was disciplined for engaging in prayers that are mandated by the Muslim faith.

 The three defendants, and the positions they held at all relevant times, are: former Superintendent George J. Bartlett, Captain Dana G. Aidala, and Correctional Sergeant Michael Jensen, all of Elmira. Plaintiff moved for summary judgment and defendants filed a cross-motion for summary judgment.

 On June 8, 1998, plaintiff filed a document entitled "Amended Complaint," (docket # 28), to which defendants have filed an answer. (Docket # 29). Although technically, plaintiff did not seek leave of this Court to amend his complaint, pursuant to Fed. R. Civ. P. 15(a), I will grant plaintiff leave to amend. Defendants have renewed their motion for summary judgment as to the amended complaint.

 For the reasons discussed infra, plaintiff's motion for summary judgment is denied, defendants' cross motion for summary judgment is granted, and the amended complaint is dismissed.

 PLAINTIFF'S CLAIMS

 Plaintiff claims that he was denied the right to practice his religion at the Elmira Correctional Facility on a particular day, December 31, 1995.

 Plaintiff's complaint alleges that on the afternoon of December 31, 1995, defendant Correctional Sergeant Michael Jensen was supervising the Elmira field house. Plaintiff, a Muslim, was in the recreational area of the field house at the time, engaged in an act of religious worship with three other Muslim inmates. Specifically, he alleges that they were chanting, kneeling, and bowing to the east in fulfillment of the late afternoon prayer, as required under the Islamic faith.

 Plaintiff claims that he had, on previous occasions engaged in this afternoon prayer ritual by himself, and that correctional officers had witnessed his actions. He alleges that he had not come into conflict with correctional staff on earlier occasions, and assumed that he was free to engage in the group prayer without repercussions. *fn3"

 Defendant Jensen observed the activity, determined that it was unauthorized demonstrative prayer, and warned the inmates to stop. *fn4" Plaintiff claims that he stopped praying to produce his identification card at Jensen's request. Plaintiff then told defendant Jensen that he had a right to conduct the prayers in the recreational area (based on case law and institutional rules), and he requested that Jensen make accommodations for Muslim inmates who wished to go back to their cells and pray during recreation time but thereafter return to the yard. Defendant Jensen rejected plaintiff's protests and instead issued plaintiff a misbehavior report. Plaintiff was charged with violating Rules 106.10 (refusing a direct order) and 105.11 (unauthorized religious addresses).

 Following a Tier II hearing on January 5, 1996, plaintiff was found guilty of the violations and sentenced to 15 days in keeplock status as well as 15 days' loss of telephone, recreation, package, and commissary privileges. Plaintiff appealed the disciplinary hearing, claiming that he had not made a religious address or performed a religious service in the yard, and that the prison's refusal to authorize inmates' prayer in the recreational yard violated the First Amendment. Defendant Captain Dana Aidala, a designee of defendant Superintendent Bartlett, affirmed the Tier II hearing decision on January 17, 1996.

 DOCS POLICIES REGARDING INMATE RELIGIOUS PRACTICES

 According to defendant George Bartlett's affidavit, it is DOCS policy to allow inmates to engage in prayer, so long as the correctional facility can still maintain order. (Docket # 17, Exh. A). DOCS policies permit Muslim inmates to pray five times a day, as required by the religion.

 DOCS has established rules and directives to govern all inmates' religious practices. Rule 105.11 states: "Religious services, speeches or addresses by inmates other than those approved by the Superintendent or designee are prohibited." DOCS Directive 4202, which was adopted in 1988 and pertains to religious programs and services, provides as follows:

 
1. Individual demonstrative prayer by inmates will be allowed only in the privacy of their own living quarters and in the designated religious areas whenever feasible, as determined by the Superintendent.
 
2. Congregate or group prayer may only occur in a designated religious area during a religious service or at other time authorized by the Superintendent.
 
Demonstrative prayer will be allowed only to the extent that it is not disturbing to others.

 DOCS defines "demonstrative prayer" as individual prayer that involves movement, position changes, calls, or audible chants. In terms of what constitutes "disturbing," defendant Bartlett states in his affidavit that, once the prayer becomes noticeable, it is considered disturbing to others. Additionally, prayer is disturbing if it upsets the order of the prison or has the potential to do so.

 Bartlett further states that demonstrative prayer and group prayer, which pose risks of disturbing inmates, are only permitted in designated areas, in order for the prison to minimize security risks. As a general rule, demonstrative prayer is permitted at an Muslim inmate's bedside, in his cell, in the designated area (called a Mosque but more appropriately referred to as a Musallah, a prayer room), or in any other area that the Superintendent designates for such purposes. No ...


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