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MARRIA v. BROADDUS

July 31, 2003

RASHAAD MARRIA, PLAINTIFF,
v.
DR. RAYMOND BROADDUS, DEPUTY COMMISSIONER OF PROGRAMS; G. BLAETZ, CHAIRPERSON OF GREEN HAVEN CORRECTIONAL FACILITY MEDIA REVIEW COMMITTEE; WARITH DEEN UMAR, COORDINATOR FOR ISLAMIC AFFAIRS; AND GLENN GOORD, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONS, DEFENDANTS.



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

OPINION AND ORDER

Plaintiff Intelligent Tarref Allah, formerly known as Rashaad Marria*fn1 (hereinafter "plaintiff"), has been an inmate in the custody of the New York State Department of Correctional Services ("DOCS") since June 1995. For the duration of his incarceration within DOCS, plaintiff has been a member of the Nation of Gods and Earths ("Nation"), which he joined in August of 1994 while awaiting trial at Rikers Island. Defendants are DOCS employees sued in their individual and official capacities: defendant Glenn S. Goord ("Goord") is current the Commissioner of DOCS; defendant Dr. Raymond Broaddus ("Broaddus") was the Deputy Commissioner for Program Services of DOCS at all times relevant to this action; defendant G. Blaetz ("Blaetz") was a Senior Counselor and the Media Review Committee Chairperson at DOCS' Green Haven Correctional Facility ("Green Haven"); and defendant Warith Deen Umar ("Umar") was the Coordinator for Islamic Affairs at DOCS at all times relevant to this action (collectively, "defendants" or "DOCS").

Plaintiff challenges DOCS' policy classifying the Nation as an "unauthorized" or "security threat" group and DOCS' consequent prohibition on his receipt of Nation materials and literature, including the group's central texts and its newspaper, and ban on formal gatherings with other members of the group. He seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments to the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), the New York State Constitution, and state law. Plaintiff's federal due process and analogous state law claims were dismissed on qualified immunity grounds at the summary judgment stage of this case. See Marria v. Broaddus, 200 F. Supp.2d 280, 301-302 (S.D.N.Y. 2002).

The Court held a five-day bench trial during which the parties presented evidence bearing on the issue of whether plaintiff's beliefs as a member of the Nation are entitled to Constitutional protection and, if so, what proper the scope of protection would be. Having reviewed the testimony and evidence that has been presented, we find that plaintiff's sincerely-held beliefs as a member of the Nation are entitled to First Amendment and RLUIPA protection, and thus grant plaintiff's requested injunctive relief in part and remand in part for further consideration and action by DOCS not inconsistent with this decision.*fn2 Our findings of fact and conclusions of law are set forth below.

BACKGROUND

The Nation's history, teachings, and practices are largely not contested, nor are the existence and application of DOCS' policies concerning the Nation.

A. The Nation of Gods and Earths

The Nation, whose adherents are commonly referred to as "Five Percenters," the "Five Percent", or the "Five Percent Nation," was founded in New York nearly 40 years ago. The Nation traces its roots to the Black Muslim movement that emerged in the mid-twentieth century and most directly to the Nation of Islam ("NOI") — a group that DOCS classifies as a religion pursuant to the settlement in Muhammad v. Coughlin, No. 91 Civ. 6333 (S.D.N.Y), and one with which the Nation shares some teachings and its central text (known to Nation members as the 120 Degrees).*fn3 See Trial Tr. at 162:11-17; Trial Tr. at 56:18-23. The concept of the "Five Percent" from which the Nation derives its colloquial name was first set forth by NOI leader Elijah Muhammad, who separated the world's population into three categories: the Five Percent, the Ten Percent, and the Eighty-Five Percent. See Trial Tr. at 54:6-20. According to Elijah Muhammad, the Ten Percent teach the Eighty-Five Percent to believe in the existence of a "mystery God" and thereby keep the Eighty-Five Percent enslaved by having them worship something that they cannot see. See id. Muhammad characterized the remaining Five Percent as the poor, righteous teachers who do not believe in the teachings of the Ten Percent and instead teach the identity of the true and living God, as well as freedom, justice, and equality to all human families of the planet earth. See id. The term "Five Percenter," while commonly used to describe members of the Nation, can be used more generally to describe a person who subscribes to the belief that humankind can be broken down into the Five Percent, the Ten Percent, and the Eighty-Five Percent. Thus, not all people who might nominally identify themselves as "Five Percenters" are necessarily members of the Nation of Gods and Earths. See Trial Tr. at 55:15-25.

The Nation of Gods and Earths began in 1964 when its founder Clarence 13X Smith broke with the NOI. See Trial Tr. at 56:18-23. In contrast to the NOI's belief that Allah (God) appeared on Earth solely in the person of its founder Master Fard Muhammad, Smith and his followers professed the central belief that every black man is an embodiment of God with the proper name Allah and that every black woman is "Earth," from which life springs. See Trial Tr. at 56:24-57:7. Thereafter, with the assistance of the City of New York and the Urban League, Smith and his followers created the "Allah School in Mecca," a headquarters that also houses the "Allah Youth Center in Mecca," in Harlem, New York as a street academy designed to bring the Nation's message to urban youth. See Trial Tr. at 56:18-23; see also Generally April 30, 2001 Decl. of Elise Zealand ("Zealand Decl.") Ex. N (article discussing the history of the Nation); April 27, 2001 Decl. of Rashaad Marria ("Marria Decl.") ¶ 15 & Ex. D (discussing the Nation's relationship with the Urban League and New York City). The Center, which enjoys 501(c)(3) not-for-profit tax status and a favorable ninety-nine year lease from the City paid at the rate of twenty dollars per month, continues to operate in Harlem as do several similar centers elsewhere. See Trial Tr. at 316:9-13. Among the activities sponsored by the Allah School and Youth Center are substance abuse programs, after-school tutoring for children, and youth trips to show children that "there is more to life than what they see in the ghettos." See Trial Tr. at 313:17-315:21. Aside from its headquarters in Harlem, the Nation does not have a formal structure or hierarchy beyond preaching respect for "elders" — i.e., those with the most extensive knowledge of the group's beliefs and lessons. See Trial Tr. at 94:12-24.

As we previously mentioned, some of the Nation's beliefs and practices overlap with those of the NOI as a result of the two groups' shared belief in the lessons that comprise the 120 Degrees. Both groups, for example, believe that the black man is the "original Asiatic man." Both the Nation and NOI also believe that the white man is "the devil," made through a selective breeding process referred to as "grafting," as all of these teachings are set forth in the 120 Degrees. See Trial Tr. at 165:12-21; Trial Tr. at 302:15-20; Pl. Trial Ex. 180 (anthropological "syncretism" created by plaintiff witness Ted Swedenberg comparing the Nation of Gods and Earths to various religious traditions); Blocker Decl. ¶ 8. Members of both groups also observe dietary restrictions, such as refraining from eating pork, and fast on holy days.*fn4 Finally, the Nation's emblem, known to members as the "Universal Flag," is reminiscent of the one used by NOI. Compare Pl. Trial Ex. 1 (cover of Five Percenter newspaper containing the "Universal Flag") with http://www.noi.org/ (visited May 26, 2003) (NOI web page displaying crescent emblem).

Although plaintiff asserts that his belief system as a member of the Nation would be commonly understood as a religion, he and other nation members reject the label "religion" in describing the Nation because they believe that the term "religion" connotes "belief in the mystery God" — i.e., the false religious belief systems promulgated by the Ten Percent to enslave the minds of others. See Trial Tr. at 106:13-16. Therefore, plaintiff and other Five Percenters commonly describe the Nation as a "way of life or culture," not a "religion." See Trial Tr. at 58:2-13.

The 120 Degrees, along with two numerology devices known as the Supreme Alphabet and Supreme Mathematics, forms the core of the Nation's literature. The 120 Degrees are lessons arranged in a question and answer format that represent the teachings of NOI founder Master Fard Muhammad and Elijah Muhammad. The Supreme Alphabet and Supreme Mathematics assign a word to each letter of the alphabet (almost all of which begin with the letter to which they correspond) and ten "righteous" principles to each number from 0 to 9. They are used as the keys "to understand[ing] man's relationship to the universe and Islam," as well as to understanding and interpreting the 120 Degrees.*fn5 Marria Decl. ¶ 13. There is no dispute that the Supreme Alphabet and Mathematics have not changed since they were created by Clarence 13X Smith in the 1960's and are made widely available by the Nation and others. Members of the Nation use these sources in conjunction with one another to attain "knowledge of self," which is central to their membership in the Nation, and they must be understood and applied on a daily basis in order to live righteously. Hence, just as Nation members are required to fast on holy days and follow dietary restrictions, they are also required to study the lessons in these teachings on a regular basis both individually and in group sessions. The Nation's beliefs are also based on the Koran and the Bible, which serve as secondary texts, see Trial Tr. at 65:7-66:15, and "plus lessons" consisting of written commentary by Five Percenters aimed at fostering further insight into the group's texts and teachings. See Trial Tr. at 64:17-20, 64:25-65:6.

One additional piece of Nation literature specifically at issue in this case is The Five Percenter, a monthly newspaper published by the Allah Youth Center. It contains articles about current events relevant to the Nation, information about community activities, letters to the editor, editorials, and Five Percenter lessons and "plus lessons," including teachings from the 120 Degrees, the Supreme Alphabet, and the Supreme Mathematics. See e.g., Pl. Trial Ex. 3 (copy of the October 1995 issue of The Five Percenter received in evidence); Pl. Trial Ex. 6 (copy of the June 1996 issue of The Five Percenter received in evidence). Some of The Five Percenter's content is directed specifically towards prison inmates, including messages advising them to better themselves and follow prison rules while incarcerated.*fn6 Plaintiff asserts that The Five Percenter also serves as the principal and vital link for him to communicate with members of the Five Percenter community outside prison. See Trial Tr. at 69:24-70:17; see also Trial Tr. at 154:24-155:6 (plaintiff's expert anthropologist Ted Swedenberg explaining that The Five Percenter shows Nation members how the group's abstract principles can be applied in life); Trial Tr. at 292:17-293:15 Nation representative Cee Aaquil Allah Barnes discussing the importance of The Five Percenter as a link to the community for prison inmates who are members of the Nation); Pl. Trial Ex. 4 (December 1995 issue of The Five Percenter containing a "Correspond with a God Column" for readers who wish to correspond with incarcerated members of the Nation).

Practicing members of the Nation also have various congregative gatherings. For example, the Nation conducts "Civilization Classes," in which more senior members — i.e., those who have studied the lessons longer than others — educate newer members about the lessons and how they can be applied. See Trial Tr. at 291:17-23. Such classes are held regularly at the Allah Youth Center. See Trial Tr. at 314:25-315:3. Nation members also gather regularly for "Parliaments" and "Rallies." During these gatherings, members come together to help one another learn their lessons, to educate one another by conversing about the lessons' meaning and application (which they call "building"), and to make decisions as a community. See Trial Tr. at 59:25-60:10; Trial Tr. at 287:25-288:8; Trial Tr. at 291:2-10.

Finally, as we mentioned earlier, the Nation has an official symbol referred to as the a Universal Flag, consisting of an eight-pointed star containing a number 7, a crescent, a smaller five-pointed star, and the words "In the Name of Allah." See Trial Tr. at 155:16-23.

B. DOCS' Policies Concerning the Nation

DOCS deems the "Five Percenters" to be an "unauthorized" or "security threat" group, which is the nomenclature that DOCS uses to describe a gang or other group that it views as an organized threat to prison safety and security.*fn7 As a result, though DOCS' correctional philosophy is primarily "behavior based," Nation members like plaintiff are regarded as gang members within the New York State correctional system and are consequently prohibited from receiving or possessing any of the group's literature or symbols, as well as from engaging in any organized activities associated with the Nation.

DOCS' policies concerning the Nation stem from its nonrecognition policy designed for security threat group management, which seeks to diminish gangs' power and importance by refusing to legitimize their existence. DOCS does not officially recognize unauthorized or security threat groups, even by tracking their activities internally, because it believes that "to do so would give them undue credibility and attention and embellish their importance." Def. Findings at ¶ 45 (citing Trial Tr. at 340:18-341:19). Pursuant to its non-recognition policy, and to further prevent the growth and/or proliferation of security threat groups through recruiting, DOCS implemented Rule 105.12 of its Standards of Inmate Behavior, which states that inmates "shall not engage or encourage others to engage in unauthorized organizational activities or meetings, display, wear, possess, distribute, or use unauthorized organizational insignia or materials." Def. Trial Ex. I. Rule 105.12 defines an unauthorized organization as "any gang, or organization which has not been approved by the Deputy Commissioner for Program Services." Id. Materials violating Rule 105.12 are considered contraband and are not subject to the "Media Review" process DOCS has implemented for determining the acceptability of the majority of other printed and written materials received by prisoners. See Trial Tr. at 360:21-361:9. DOCS has also implemented a zero-tolerance gang policy, under which any kind of behavior deemed to be part of gang activity, including possession of written materials or gang-associated emblems or logos, will subject an inmate to discipline. See Trial Tr. at 342:13-19.

Applying its complete ban on "Five Percenter" literature pursuant to its non-recognition policy, DOCS forbids plaintiff from having lessons from the 120 Degrees, possessing the Supreme Alphabet and Mathematics, or receiving or possessing The Five Percenter and other materials that are either associated with the Nation or contain its symbols.*fn8 DOCS' designation of the Nation as an unauthorized group also means that plaintiff can meet with no more than four other Five Percenter inmates at a time, and can only do so sporadically. See Trial Tr. at 63:6-18. He is thus prohibited from attending or organizing Civilization Classes, Parliaments, or Rallies. Finally, plaintiff is not permitted to eat his meals after sundown on fast days or to meet with other inmates on those days in order to break the fast, privileges that are extended to inmates who adhere July 16, 2003 to authorized religions like Nation of Islam members and Orthodox Muslims. See Trial Tr. at 62:11-63:5.

Because DOCS' procedures for becoming "authorized" explicitly exclude religious groups, there does not appear to be an established process by which an unrecognized group like the Nation can attain recognition as a religion from DOCS in order to avoid gang treatment.*fn9 We surmise from the trial testimony, however, that a religious group could become effectively "authorized" in a manner equivalent to becoming an authorized group directly through the Department of Program Services by attaining a favorable recommendation for accommodations from DOCS' Division of Ministerial and Family Services that is subsequently approved by executive level DOCS officials. See Trial Tr. 525:25-526:15, 530:3-6 (former Director of Ministerial and Family Services John LoConte describing his role in investigating and making subsequent recommendations to executive level DOCS officials concerning inmate requests for religious accommodations). It has apparently been DOCS' practice upon receiving an inmate request for religious accommodations to attempt to "verify the religious practice, whether or not it is something that is understandable in light of organized operational religious communities," Trial Tr. 512:17-21, and to "reach out to the outside religious community of the inmates [making the claim]" in order to confirm the practices' legitimacy and seek assistance in providing accommodations. Trial Tr. at 513:1-2. However, DOCS did not introduce any evidence to indicate that it has made such investigative or outreach efforts with respect to the Nation, despite having received a number of requests for religious accommodation.*fn10 Moreover, in defending this lawsuit, DOCS has consistently avoided this issue by insisting that plaintiff cannot seek religious recognition because the Five Percenters are, in its view, a gang and not a religion.

C. Conflicting Claims About the Nature of the Nation

While plaintiff claims that DOCS' ban on Nation materials and gatherings violates his free exercise rights under the Constitution and RLUIPA, DOCS argues that his beliefs and practices as a member of the Nation are not protected because they are not sincere or religious in nature, and in any event that its ban of the Nation's literature is justified by violence associated with Five Percenter inmates. The parties' conflicting claims boil down to widely disparate characterizations of the nature of the Nation of Gods and Earths.

DOCS, on the one hand, takes the position that "the Five Percenters," including purported members of the Nation of Gods and Earths, is a violent organization that, like some other gangs, utilizes symbols and seemingly innocuous literature touting the group's positive aspects to identify its members and "territory," as well as to recruit new members into its violent and illegal activities.*fn11 Such activities include assaults, intimidation, extortion, drug dealing, and retaliation against fellow members who attempt to leave the group or act against other Five Percenters. See Def. Findings ¶¶ 56-58. DOCS additionally asserts that Five Percenters utilize the Supreme Alphabet and Mathematics as a code in furtherance of its disruptive activities. See Def. Findings ¶¶ 61-63, 103-104. DOCS' stance in this case represents a shift from its previous litigation position that the content of the Nation's literature itself is dangerous.*fn12 Here, DOCS concedes that the Nation's literature is innocuous, but claims that its ban on Nation materials is still necessary to preserve prison safety and security because the materials are used to facilitate the recruiting efforts and illegal activities of a violent and disruptive organization. Furthermore, according to DOCS, it would give the Five Percenters and other security threat groups increased legitimacy and status, contrary to its non-recognition strategy, if inmates were permitted access to the groups' materials. See Def. Findings ¶¶ 42, 52, 90-92, 94-95 (outlining this justification for DOCS' non-recognition strategy in general and for its specific application to the Five Percenters)

Plaintiff, on the other hand, asserts that the Nation is not a gang, but rather a legitimate religious group whose beliefs extol lawfulness, righteousness, freedom, justice, equality, and peace and whose literature focuses largely on positive messages, such as education, self-improvement, self-worth, and responsibility. See Pl. Proposed Findings of Fact ("Pl. Findings") ¶¶ 19-21, 35-36. According to plaintiff and other Nation members, "[a]ny purported member who engages in violent or disruptive activities is violating the tenets of the Nation." Pl. Findings ¶ 35; see also Trial Tr. at 287:9-288:8. He further asserts that the Supreme Alphabet and Mathematics are a religious numerology system, not a secret code, see Pl. Findings ¶¶ 16-19; see also Trial Tr. 47:13-16, and that Nation members are allowed to leave the group without reprisals.*fn13 See Pl. ...


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