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Keesh v. Smith

March 2, 2006


The opinion of the court was delivered by: Hon. Norman A. Mordue, D.J.



Plaintiffs Tyheem Keesh, f/k/a Tyheem Allah, and Jesus Michael Jova, f/k/a Robert D'Lucca, inmates in the custody of the New York State Department of Correctional Services ("DOCS"), filed this civil rights action alleging that they have been denied accommodations by DOCS to practice their religion in violation of their free exercise rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq. ("RLUIPA"). Dkt. No. 26. Plaintiffs' religion, known as "Tulukeesh" "the religion of the creator," was founded by plaintiff Keesh in 2003. Dkt. No. 31, Affirmation of Tyheem Keesh ¶ 9.*fn1

Presently before the Court are motions from plaintiffs seeking preliminary injunctive relief. Dkt. Nos. 31, 36, 37.*fn2 By these motions, plaintiffs seek to compel the defendants to accommodate the plaintiffs' practice of their religion with respect to, inter alia, religious diet, holiday observances, programming, and access to religious items and literature. Plaintiffs also seek an order restraining the defendants from taking adverse actions against plaintiffs in retaliation for their exercise of their First Amendment rights. Id.


By letter dated October 14, 2003, plaintiff Keesh advised defendants Goord and Smith of his desire to practice the religion of "Tulukeesh, the Religion of Zee Keesh (The Creator), of which the adherents are referred to as Keesh [and] to list [his] Religion as an authorized Religion within DOCS." Dkt. No. 26 (Amended Complaint) at Facts ¶¶ 1-2 and Ex. 1.*fn3 Plaintiff Keesh identifies himself as the "Savior and Teacher" of Tulukeesh. Id. at Ex. A p. 3. Keesh's request letter set forth in detail the tenets and practices of Tulukeesh, which are also set forth in the book entitled "Holy Blackness," which Keesh authored. Dkt. No. 26 at Facts ¶ 12; Dkt. No. 36 (Motion for Preliminary Injunction) Affirmation of Tyheem Keesh ¶ 13.*fn4 Required practices and observances include adherence to dietary laws*fn5 , observation of holy days and fast days*fn6 , possession of religious items and literature*fn7 , and adherence to mandates regarding hygiene*fn8 and health.*fn9 The practice of Tulukeesh requires congregational gatherings. Dkt. No. 26 at Facts ¶ 36.

By memorandum dated October 17, 2003, defendant Superintendent Smith acknowledged receipt of Keesh's letter request and advised him that further review by the Coordinating Chaplain was required. Dkt. No. 47, Mans Aff., Ex. F. Keesh was advised that in the interim he could practice his fundamental beliefs in the privacy of his cell, within the parameters of facility operating procedures. Id.

On October 28, 2003, defendant Gorelick, Deputy Superintendent of Programs at Shawangunk, advised Keesh that, in accordance with DOCS Directive 4202, approval of all requests for congregate religious services or classes require the involvement of outside religious clergy and an approved inmate facilitator. Dkt. No. 47, Mans Aff. Ex. F. Gorelick also stated that special menus and holidays could be established only with direction from outside clergy. Id. Keesh was again advised that DOCS takes no position acknowledging any particular religion and that he could continue to practice his faith in his cell. Id.

In June, 2004, Keesh commenced a proceeding in New York State Supreme Court pursuant to CPLR Art. 78, alleging that the determinations made by defendants Goord and Smith regarding the practice of Tulukeesh deprived him of his constitutional right to practice his religion. Dkt. No. 47, Mans Aff. ¶ 5 and Ex. D. By Decision and Judgment dated December 30, 2004, Keesh's petition was dismissed on its merits. In his decision, State Supreme Court Justice E. Michael Kavanagh determined that the respondents acted reasonably and appropriately in responding to Keesh's request for accommodation of his religious beliefs and practices, by applying the provisions of DOCS Directive 4202. Id. and Ex. E.

Plaintiffs have been disciplined for violations of prison rules and regulations in connection with their efforts to practice and promote their religious beliefs; they have been subjected to cell searches; and their religious papers and materials have been seized by prison authorities. Dkt. No. 26. In January, 2005, defendant Nuttall advised Keesh that publication of the Tulukeesh holy book without the Superintendent's permission violated facility rules, and that officials had determined that "unfettered access to the book by you having it in your cell and among the prison population, would pose the risk that you might gain undue influence over other inmates...and the danger that you might proselytize your views to others in the inmate population, causing serious security problems in the facility." Dkt. No. 26 Ex. 75.*fn10 Nuttall further advised that in order to reach "a reasonable compromise" balancing Keesh's interests in practicing his faith and the administrations' concern for the safety and security of staff and inmates, the Tulukeesh holy book would remain in the possession of the facility Chaplain, and that Keesh would be afforded periodic access to the book. Id. On February 23, 2005, Superintendent Smith advised plaintiff Jova that he was not entitled to possess the Tulukeesh holy book in his cell and that he would have access to the book "periodically, and on a reasonable basis." Dkt. No. 26 at Ex. 77.


Preliminary Injunction Standard

A preliminary injunction is an "extraordinary remedy that should not be granted as a routine matter." Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986). In most cases, the party seeking the injunction must show a threat of irreparable injury if the injunction is not granted and either (1) a probability of success on the merits or (2) sufficiently serious questions going to the merits of the claims to make them a fair ground of litigation, and a balance of hardships tipping decidedly in favor of the moving party. See Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (internal quotes omitted). Where, however, a movant seeks relief which will alter, rather than maintain, the status quo, or which will provide him with substantially all the relief sought, the injunction sought is properly characterized as mandatory rather than prohibitory. A party seeking a mandatory injunction must make a "clear" or "substantial" showing of the likelihood of success, as well as irreparable harm should the injunction not be granted. See id. at 473-74. The Court treats the instant motions as seeking mandatory rather than prohibitory relief; accordingly, plaintiffs must make a clear or substantial showing of the likelihood of success. Irreparable Harm "The showing of irreparable harm is the 'single most important prerequisite for the issuance of a preliminary injunction.'" Brown v. Middaugh, 1998 WL 566791, *1 (N.D.N.Y. Sept. 3, 1998) (Munson, D.J.) (citations omitted). Although "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," Elrod v. Burns, 427 U.S. 347, 373 (1976), irreparable harm has not been consistently presumed in cases involving allegations of the abridgement of First Amendment rights. See Amendola v. Town of Babylon, 251 F.3d 339, 343 (2d Cir. 2001) (per curiam).

In The Bronx Household of Faith v. Board of Education of the City of New York, 331 F.3d 342, 349 (2d Cir. 2003), the United States Court of Appeals for the Second Circuit provided important guidance on this issue, and ruled that "[w]here a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed." In that case, where the alleged deprivation of the plaintiff's First Amendment rights resulted directly from the defendant's policy prohibiting ...

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