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March 27, 2002


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


Plaintiff Frankie Cancel, a state prisoner in the custody of the New York State Department of Correctional Services ("DOCS"), brings this civil rights action against thirty one DOCS employees for violations of his First and Fourteenth Amendment rights, as well as for violations of New York State law.*fn1 Before the Court are a motion by Mr. Cancel for partial summary judgment as well as motions by all defendants for dismissal of the action. For the reasons that follow, the motions are granted in part and denied in part.


The core of Mr. Cancel's Amended Complaint is that the DOCS employees named as defendants all played a role in violating his Federal Constitutional right to the free exercise of religion. Mr. Cancel, a member of the Shi'a sect of Islam, believed that he and his fellow Shi'ites were being deprived of the freedom to practice their religion by DOCS's Islamic authorities, who were allegedly members of the rival Sunni sect. He filed an inmate grievance claiming that DOCS's chief Imam,*fn2 a Sunni, "and his underlings attempted to dissuade, proselytized, and cause me to give up my Shi'a beliefs that I hold dear," and sought, inter alia, permission for outside Shi'ites to come to the prison to lead Shi'a religious services. Pl.'s Mem. Exs. at 22. On the advice of DOCS's Islamic Affairs Coordinator that all Muslims practice the same faith, and therefore do not require separate services, the grievance was denied. Id. at 25. Mr. Cancel then brought an Article 78 petition in New York State court, which held that "the denial of the grievance was arbitrary and capricious and in violation of [New York] Correction Law § 610." Cancel v. Goord, 278 A.D.2d 321, 717 N.Y.S.2d 610, 612 (2d Dep't 2000), aff'g Cancel v. Goord, 181 Misc.2d 363, 695 N.Y.S.2d 267 (N.Y.Sup. 1999), leave to appeal denied, 96 N.Y.2d 707, 725 N.Y.S.2d 638, 749 N.E.2d 207 (2001). Mr. Cancel now brings this § 1983 action seeking money damages.


I. Legal Standard

For purposes of Mr. Cancel's motion for partial summary judgment, we apply the familiar summary judgment standard of Federal Rule of Civil Procedure 56(c). See, e.g., Pappas v. Giuliani, 118 F. Supp.2d 433, 436-37 (S.D.N.Y. 2000). For purposes of defendant's motions for dismissal, we accept as true all material factual allegations in the complaint, Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l, Ltd., 968 F.2d 196, 198 (2d Cir. 1992), and may grant the motions only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996).

II. Factual Background*fn3

Mr. Cancel practices the Shi'a branch of Islam, which is separate and distinct from the Sunni branch. While Shi'ites and Sunnis both agree on the fundamental tenets of Islam, they disagree as to the identity of the legitimate successors to the Prophet Muhammad. See Pugh v. Goord, 184 F. Supp.2d 326, 328 (S.D.N.Y. 2002). Most Shi'ites and Sunnis co-exist harmoniously, but one puritanical faction of Sunni, known as Wahhabi, view Shi'ites as infidels and heretics. Pl.'s Mem. Exs. at 60-61. At least some adherents to the Wahhabi school are violently opposed to Shi'ites and other non-Sunnis, and view it as their duty to impose the "true" Sunni belief system upon them.*fn4 Id.

Mr. Cancel was transferred to the Fishkill Correctional Facility ("Fishkill") in March 1998, and was introduced to Salahuddin Muhammad, Fishkill's Imam, who questioned him about his beliefs and gave him a copy of the bylaws of the Fishkill Muslim community. Am. Compl. ¶ 39. While Mr. Cancel was at Fishkill, Imam Muhammad "subjected [him] and his fellow Shi'a muslims to abusive rhetoric, diatribes, and proselytizations in the various services [the Imam conducted,] denigrating Shi'a believers [as], inter alia, `hypocrites' to shame them into converting [to] the Sunni group."*fn5 Am. Compl. ¶ 41.

On April 27, 1998, one of Mr. Cancel's fellow Shi'a inmates sent a formal complaint to defendant Ada Perez, the Deputy Superintendent for Programs at Fishkill, stating that Imam Muhammad had decreed that Muslims at Fishkill "must accept [his] Wahhabist[] dogmatic theology and conform to [his] brand of Islam" in order to participate in Islamic services or access the prison mosque to engage in religious study. Pl.'s Mem. Exs. at 7; Am. Compl. ¶¶ 42-43. Shortly thereafter, Mr. Cancel and the other Shi'a were removed from the "call out" list and prevented from participating in certain Islamic functions at the prison. Am. Compl. ¶ 42. A request was subsequently made to Ms. Perez for a separate "call out" for Shi'a inmates in order to gather and celebrate a Shi'a holiday, but this request was not granted. Pl.'s Mem. Exs. at 9. Ms. Perez spoke with Imam Muhammad, who informed her that the Shi'a were banned from the mosque for being disruptive during a study group. She accepted this explanation, and, accordingly, took no action, apart from forwarding the complaint to defendant Anthony Annucci, DOCS Deputy Commissioner and Head Counsel. Id. at 10.

Thus, on June 26, 1998, Mr. Cancel filed an inmate grievance complaint (the "Fishkill Grievance") requesting that DOCS take measures to prevent proselytization, ensure fair treatment of Shi'a by the Sunni Muslim leadership at Fishkill, and permit access to outside Shi'a Imams or other volunteers. Am. Compl. ¶ 47. Defendants Thomas Goetz, Robert Kirkpatrick, John Culkin, Larry Zwillinger, and Melvin E. Brown, as the voting members of DOCS's Inmate Grievance Program Central Office Review Committee ("CORC"), denied the Fishkill Grievance on July 29, 1998:

Upon full hearing of the facts and circumstances in the instant case, the action requested herein is hereby denied.
CORC has been advised by [Imam Umar] that all Muslim religious groups fall under Islam, with the exception of [Nation of Islam]. All practice the same faith and should not be separated, as the grievant suggests.
Contrary to the grievant's assertions, CORC notes that the grievant is not being deprived of his right to practice his religion [because] there is no requirement that separate re[l]igious advisors and/or services be provided to the various religious sects.

Pl.'s Mem. Exs. at 25 (full text).

Mr. Cancel subsequently commenced an Article 78 proceeding before the New York State Supreme Court for Dutchess County, naming defendant Glen S. Goord, Commissioner of DOCS, as respondent, claiming that CORC's decision was arbitrary and capricious. On July 6, 1999, the Supreme Court, after expanding the administrative record, found for Mr. Cancel, concluding as follows:

The court has reviewed the petitioner's submissions and finds that the differences between the historical and doctrinal beliefs, as well as the religious practices, of the two groups [Sunni and Shi'a] are significant. The nature of these differences mandates the conclusion that respondent's determination that the spiritual needs of the inmates of the Shi'a Muslim faith can be met in religious services led by chaplains of the Sunni Muslim faith is arbitrary and capricious. Respondent's determination is contrary to the objectives of DOCS Directive No. 4202 and the First Amendment right of religious liberty (U.S. Const. First Amend.) upon which it is based. For this reason, it is hereby ordered and adjudged that the petition is granted and respondent's July 29, 1998 determination is annulled[.]

Cancel, 695 N.Y.S.2d at 269. The Supreme Court further ordered Commissioner Goord to permit Shi'a inmates to "have contact with a [properly registered] volunteer Shi'a scholar," or, if such a volunteer is unavailable, to permit Shi'a inmates to study on their own up to once a week in the presence of prison security staff. Id.

At least one Shi'a volunteer stepped forward in response to this ruling, but defendant William Mazzuca, the facility's superintendent, did not permit him to visit Fishkill, as the Supreme Court's decision was "in abeyance." Pl.'s Mem. Exs. at 30-34. Mr. Cancel appealed this denial to CORC, which upheld it on May 24, 2000. Id. at 35. On December 11, 2000, although applying a different ratio decidendi, the Appellate Division affirmed the substance of the Supreme Court's decision in the Article 78 litigation but, significantly, struck those parts of the lower court's opinion that ordered specific actions to be taken by DOCS, leaving it to DOCS in the first instance to devise the appropriate accommodation. Cancel, 717 N.Y.S.2d at 612.*fn6

On January 29, 2001, former defendant John R. Demars,*fn8 a Deputy Superintendent at Franklin, spoke with Mr. Cancel as part of an investigation of the At-Tayeb Grievance. Id. ¶ 84. The following day, defendant Roy Girdich denied the grievance on the ground that there was merely a "miscommunication" regarding the proposed visit, and that Imam At-Tayeb "did not knowingly deny [Mr. Cancel] access to a Shi'a clergy." Durden Decl. Ex. G. This denial was subsequently upheld by CORC. Id.

On February 1, 2001, the day he received notice of the denial of the At-Tayeb Grievance, Mr. Cancel was escorted to speak to defendant W. St. Dennis, a DOCS employee at Franklin, who told him that, based on information obtained from Imam At-Tayeb, it had been "`determined that [Mr. Cancel had] been trying to undermine the muslim community.'" Am. Compl. ¶ 89. Mr. Cancel told Mr. St. Dennis about his Article 78 litigation and "advised [him] that it was unconstitutional to retaliate against him for his peaceful protected activity." Id. ¶ 91. Nevertheless, it was determined by "the administration" that Mr. Cancel was to be placed in the Special Housing Unit ("SHU") until he was transferred to another DOCS facility. Id. ¶¶ 91-92, 100. See generally, N.Y. Comp. Codes R. & Regs. tit. 7, ch. VI (2001) (SHU regulations).

Mr. Cancel appealed to defendant David Rock, Deputy Superintendent for Security, on February 6, and on February 8, defendant Daniel A. Rivers, a vocational supervisor, commenced Mr. Cancel's administrative segregation hearing. Am. Compl. ¶¶ 93, 97. Mr. Rivers ordered Mr. Cancel to remain in SHU "until transferred," to "preserv[e] safety and security in the facility." Id. ¶ 100. Mr. Cancel appealed this decision on the sole ground that his SHU confinement was in retaliation for his exercise of his constitutional rights. Id. ¶ 102. This appeal was successful, and, after Mr. Cancel was ...

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