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January 3, 2002


The opinion of the court was delivered by: Lynch, District Judge.


Plaintiffs Thomas Pugh, Jr., Errol Ennis, Edward Hamil and Clay Chatin bring this action under 42 U.S.C. § 1983, pro se, alleging that the defendants, several senior administrators in the New York State Department of Correctional Services ("DOCS") and the Fishkill Correctional Facility ("Fishkill"), violated plaintiffs' First and Fourteenth Amendment rights. The matter is before the Court on plaintiffs motion for a preliminary injunction. For the reasons that follow the motion is denied and the case will be dismissed.


Plaintiffs are inmates housed in Fishkill, who practice the Shi'a branch of Islam. Affidavit testimony provided in conjunction with the present motion establishes the following essentially undisputed facts. The principal tenets of Islam, regardless of sect, are (1) belief that Allah is God; (2) acceptance that the Qur'an is the book of guidance and contains the words of Allah; (3) acknowledgment of the Prophet Muhammad as the final messenger and Prophet of Allah; (4) acceptance of the "five pillars" of Islam — Shahada (declaration of faith), Salat (prayer), Zakat (Charity), Saum (fasting) and Hajj (pilgrimage to Mecca); and (5) the practice of Oiblah, or praying facing Mecca. (Cohen Aff. Ex. A ¶ 16.) All Muslims apparently accept these principles, whether they are Sunni, Shi'ite, or belong another of the multiple sects that constitute Islam. (Id.) The principal difference between Sunnis and Shi'ites is the significance which Shi'ites afford the twelve imams, or religious leaders, who came after the Prophet Muhammad. (Cohen Aff. Ex. A at 4, n. 2.) Shi'ites consider these twelve imams to be the legitimate successors to Muhammad and divine in nature, while Sunnis do not. (Id.) According to Pugh, Shi'ites are also forbidden to follow a deceased imam's religious decrees and explanation of religious doctrine, and consequently are only bound by the interpretations of religious doctrine adopted by succeeding Shi'ite religious leaders, or Ayatullahs. (Pugh Aff. ¶ 10 & Ex. B.) Despite their distinct clerical traditions, Shi'a and Sunni religious doctrines remain similar though not identical. (Id.)

DOCS has traditionally accommodated religions with significant inmate followings to the greatest extent possible, and Islam is among these religions. (LoConte Aff. ¶ 3, 4.) The DOCS program for Muslim inmates consists principally of a four-point program which is non-sectarian and focuses on elements common to all sects of Islam: (1) Jum'ah (Friday noon services); (2) Islamic studies classes; (3) Islamic introduction services; and (4) Majlis Shu'urah (consultation and religious planning). (Cohen Aff. ¶ 18.) Additional accommodations include meeting special dietary needs and allowing religious symbols and materials (such as religious publications, prayer rugs and prayer beads). (Id. ¶ 19.) Muslim inmates are allowed to pray five times a day, and to observe three Muslim holidays: Ramadan (the month of fasting), Id-Ul-Fitr (the feast or fastbreaking at the end of Ramadan) and Id-Ul Adha (the feast of sacrifice). (Id. ¶ 19.) During the month of Ramadan, there are arrangements that allow inmates to break their fast after sundown, and during the other recognized holidays, Muslim inmates are allowed to have congregate prayer services, communal festivities and family visits. (Id.) Most DOCS facilities also have Muslim chaplains on staff to provide religious guidance. (Id. ¶ 20.) Inmates may even receive spiritual advice from the outside religious community when a DOCS chaplain cannot fulfil the inmates' spiritual needs, and outside religious leaders can become spiritual advisors as registered volunteers. (Id.; LoConte Aff. ¶ 22.) The DOCS program has been approved of by the Fiqh Council of North America, a nationally recognized board of Muslim scholars and educators, that is recognized as authoritative by all major Muslim organizations in the United States, in which all sects, including Shi'ites, are represented and play leadership roles. (Cohen Aff. Ex. A ¶ 24.)

In addition to these general programs for accommodating religious practices, DOCS has in place provisions for accommodating individualized beliefs of inmates not addressed by the general program of the religious group to which they belong, in a manner consistent with the limitations of the prison setting and resources. (LoConte Aff. ¶ 19). Inmates are allowed to pray and study in their cells, and receive religious publications, so long as the material does not incite violence. (Id. ¶ 20.) Furthermore, DOCS accommodates religious dietary needs, including, for example, permitting Muslim inmates to bring food back to their cells in order to break their cycle of fasting during Ramadan. (Id. ¶ 24.)*fn1

Inmates also have access to a grievance procedures for filing both formal and informal complaints against any religious leader who an inmate believes is arbitrarily denying him access to religious privileges. There is both a facility-based grievance board and a central grievance board based in Albany which respond to formal grievances. (Id. ¶ 12 & Ex. A.) Although neither of these boards have the authority to dismiss religious leaders employed by DOCS, they are responsible for working out disputes between inmates and religious leaders, and bringing any problems to the attention of prison officials who have the authority to take further corrective action. (Id.) Where a particular religious leader has been the subject of multiple complaints, the grievance boards contact prison officials, who investigate the matter and may take disciplinary action where appropriate. (Id. ¶ 13.) In addition, informal complaints may be lodged with coordinating Chaplain at the particular facility, who also may take the appropriate corrective action. (Id. ¶ 15.) Moreover, since adoption of the specific Protocol concerning accommodation of Shi'a adherents, discussed below, it has been specific DOCS policy that Muslim chaplains may be formally disciplined for disparaging Shi'a beliefs. (Id. Ex. D.)

Despite the existence of this program, and the associated grievance procedure, plaintiffs allege that the religious program for Muslims impermissibly infringed upon their ability to practice the Shi'a faith. Specifically, plaintiffs allege that when they approached the responsible officials at Fishkill to accommodate their religious beliefs, they were informed that they could teach and practice their faith in the area used by Sunni Muslims, and were directed to spiritual guidance from Imam Muhammad, the Islamic Coordinator for all Muslim inmates at Fishkill, who is a Sunni Muslim. Plaintiffs' request for separate Ramadan services were similarly rebuffed, and they were again directed to contact Imam Muhammad for the appropriate religious services. They have also alleged that a request by the Islamic Guidance Center of Brooklyn, apparently a Shi'a religious organization, to volunteer their services to the facility were denied, and that their formal grievances concerning these matters have been summarily dismissed. Finally, plaintiffs allege that Imam Muhammad has exhibited an overt hostility to the Shi'a faith, and that hostility has been evidenced not only in derogatory words, but also in Shi'ite inmates' being denied the right to celebrate Eid Ghadir Khum, apparently one of the biggest and most important Shi'a festivities.*fn2

The purportedly discriminatory conduct of Imam Muhammad does not appear to have been an isolated incident, and in fact was the basis for a separate litigation in Cancel v. Goord, 278 A.D.2d 321, 717 N.Y.S.2d 610 (2d Dep't 2000), leave to appeal denied, 96 N.Y.2d 778, 725 N.Y.S.2d 633, 749 N.E.2d 203 (2001). That case was brought in New York State court by another Shi'ite inmate at Fishkill who is not a party to the present action, and involved a similar claim to the one presented here, namely that Imam Muhammad routinely proselytized Shi'ite inmates and denigrated Shi'a beliefs, and did not permit the study of or recognize differences between sects of Islam. The petitioner alleged that as a consequence of Imam Muhammad's supervision, the Muslim program at Fishkill, as then administered, was incompatible with and ultimately antagonistic to the Shi'a faith. The Appellate Division affirmed the lower court ruling that the DOCS treatment of Shi'ite inmates was "arbitrary and capricious" and violated the right to free exercise of religion enshrined in New York's Corrections Law § 610. The Court ordered DOCS to conduct administrative proceedings "to determine the manner in which to best afford Shi'ite inmates separate religious services, under appropriate Shi'a religious leadership, in a time and placed that comport with legitimate penological concerns." Cancel, 717 N.Y.S.2d at 612.

In the aftermath of the Cancel case, DOCS consulted with numerous Islamic organizations all over New York State to seek appropriate direction in matters of Islamic doctrine, tradition and ritual. (LoConte Aff. ¶¶ 43-44.) As part of the effort to satisfy the Appellate Division's order, on April 19, 2001, senior DOCS officials met with Shayk Fadhel Al-Sahlani, a religious scholar at the Imam Al-Khoei Foundation, the Shi'ite Islamic Center in Jamaica, Queens, that had served as outside ecclesiastical advisor to the plaintiff in the Cancel litigation. (Id. ¶ 46.) At that meeting they were advised that Shi'ite inmates could worship in the same religious services as Sunni Muslims, but that special care was needed to ensure that Shi'ite inmates were not harassed because of their beliefs. (Id. ¶ 47.) Accordingly, in addition to the existing grievance procedures DOCS put in place a Protocol designed to ensure that the rights of Shi'ite inmates are respected and protected. (Id. ¶ 48-49.) The new Protocol warns DOCS employees, including chaplains, voluntary chaplains and inmate facilitators to refrain from disparaging inmates on account of their religious beliefs, and mandates that Shi'a Muslim inmates have full access to all Muslim religious education classes, equal opportunities to participate in all Friday Jum'ah services, and have at least one member on the Muslim Majlis of any facility in which the Shi'ite inmates are present in the general population. (Id. Ex. D.) Indeed, the Affidavit of John LoConte, DOCS' Director of Ministerial and Family Services, and its supporting exhibits set forth an exceptionally impressive and thorough account of DOCS' religious programs in general and its specific effort to accommodate the religious needs of Shi'ite inmates. The LoConte Affidavit demonstrates that, once alerted to the need to pay particular attention to the distinction between Shi'a and Sunni interpretations of Islam, DOCS undertook a sincere, thoughtful, and effective effort to reconcile the religious needs of the Shi'ite prison population with the security and penological interests of the State.

There is no dispute that neither DOCS nor Fishkill has provided accommodations to Shi'ite inmates in the system, other than those described, and that Shi'ite inmates do not enjoy separate religious services. LoConte has testified that any such procedures would impose a significant administrative burden upon the correctional system. Chief among those burdens are increased security concerns caused by heightened rivalry among prison inmates belonging to different groups with different privileges, and the competition for new members and converts engendered by it. (LoConte Aff. ¶ 29.) LoConte further testified that, while he does not dispute the good faith of Shi'ite inmates, creating separate services for them would increase pressure upon DOCS to recognize other sub-groups that may be used as a subterfuge for gang-related activity. (Id. ¶¶ 38-39.) A proliferation of sects also increases the administrative burdens of supervision, including the need to set aside additional space, increased burdens on prison personnel who must monitor each inmate program, and increased costs. (Id. ¶¶ 28, 30-36.)

Procedural History

Plaintiffs filed this action in or about July 2000, purportedly as a class action on behalf of themselves and other similarly situated inmates. The complaint did not allege specific facts, but contained only conclusory assertions that plaintiffs were "not able to receive any spiritual guidance in accordance with their religious beliefs" and that they were "being discriminated against by the defendants because of their religious beliefs." (Compl. ¶¶ A, D.) On September 27, 2000, Chief Judge Mukasey issued an order directing the Clerk of the Court to assign a docket number to the complaint, but requiring the plaintiffs to amend their complaint to include detailed allegations of the manner in which their religious freedom was burdened and the alternative means of worship provided by prison authorities that would allow the defendants to mount an intelligent defense. (Cohen Aff. Ex. B at 3.) The Court also stated that the action could not proceed as a class action since pro se plaintiffs cannot act as class representatives. (Id. at 1, n. 1.)

Accordingly, on November 17, 2000, the plaintiffs filed an amended complaint. Plaintiffs seek a total of $500,000 in compensatory damages and injunctive relief requiring the defendants "to provide the Shi'a Muslim inmates at Fishkill Correctional Facility [with] a prayer area to conduct religious classes and services, and to be allow[ed] to receive volunteers, so that they could ...

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