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CANCEL v. MAZZUCA
March 27, 2002
FRANKIE CANCEL, PLAINTIFF,
WILLIAM MAZZUCA, SUPERINTENDENT OF FISHKILL CORRECTIONAL FACILITY, ET AL., DEFENDANTS.
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.
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,
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
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
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
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
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
At some point,*fn7 Mr. Cancel was transferred to the
Facility ("Franklin"). On January 5, 2001, he attempted to
attend a Muslim religious service at Franklin, but was prevented
from doing so by defendant Corrections Officer Chris Degon. Am.
Compl. ¶ 113. Mr. Cancel also met with the Franklin Imam,
defendant At-Tayeb, and requested permission for outside
speakers to enter the facility for an upcoming Muslim holiday.
Am. Compl. ¶ 80. When Mr. Cancel disclosed that the proposed
speakers were from the Shi'a community, Imam At-Tayeb "told
plaintiff that people who hold [Shi'a] beliefs are suspect and
hypocrites," and refused to permit their attendance at the
holiday service. Id. ¶ 81. Imam At-Tayeb did, however, permit
five Sunnis to enter the facility and speak at the holiday
service. Id. ¶ 82. Mr. Cancel filed another grievance (the
"At-Tayeb Grievance") based on this incident. See Durden Decl.
Ex. G. Mr. Cancel was told by other inmates that Imam At-Tayeb
referred to him as an "evil person" who was causing division and
problems among the inmate Muslim community by filing the
At-Tayeb Grievance. Am. Compl. ¶ 83.
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)
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 ...