The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #23.
Currently before the Court is defendants' motion for summary judgment dismissing plaintiffs' complaint of denial of the right to free exercise of religion by virtue of DOCS' policy of holding joint Friday prayer services for both Shi'a and Sunni Muslims. Dkt. #33. For the following reasons, defendants' motion is granted.
In Cancel v. Goord, a Shi'a Muslim incarcerated at the Fishkill Correctional Facility filed a grievance "requesting that Shi'a Muslims be allowed to have religious study meetings, classes or study group specific to their religious beliefs and that they be allowed access to outside Shi'a clergy persons." 181 Misc.2d 363, 364 (Sup. Ct. Dutchess County 1999), aff'd as modified, 278 A.D.2d 321 (2d Dep't 2000), leave to appeal denied, 96 N.Y.2d 707 (2001). The Department of Correctional Services ("DOCS"), denied the grievance, prompting the inmate to commence an article 78 proceeding challenging DOCS' determination as arbitrary and capricious. Id. The trial court concluded that DOCS' determination that the spiritual needs of the inmates of the Shi'a Muslim faith could be met in religious services led by chaplains of the Sunni Muslim faith was arbitrary and capricious. Id. at 365. Accordingly, the trial court granted the petition and annulled DOCS' resolution of the grievance. Id. at 365-66. The trial court also ordered that DOCS permit Shi'a inmates "to have contact with a volunteer Shi'a scholar" or, if no such volunteer was available, to permit Shi'a inmates "to participate in a religious education class or study group up to once per week with an approved inmate acting as facilitator and with security staff present . . . ." Id. at 366.
The Appellate Division affirmed the trial court's order insofar as it granted the petition and annulled DOCS' resolution of the grievance, but vacated that portion of the trial court's decision "which directed the manner in which [DOCS] was to permit the petitioner and his fellow adherents of the Shi'a sect of Islam to practice their faith, and remit[ted] the matter to . . . DOCS to conduct administrative proceedings, with Shi'a participation, to determine the manner in which to best afford Shi'a inmates spearate religious services, under appropriate Shi'a religious leadership, in a time and place that comport with legitimate penological concerns." 278 A.D.2d at 323.
In accordance with that decision, DOCS implemented an official policy entitled "Protocol for Shi'ite Muslim Programs and Practices" ("Protocol"). Dkt. #36, ¶ 5. The Protocol requires DOCS to: (1) refrain from disparaging the doctrines of any religious faith; (2) endeavor to consult with ecclesiastical authorities on Shi'ite Islam in the community at large to obtain advice and guidance regarding accommodation of the religious needs of Shi'ite inmates; (3) afford Shi'ite inmates the right to attend Shi'ite religious education and study classes; (4) afford Shi'ite inmates full and equal opportunity to participate in, without discrimination, the weekly Friday Jumah*fn1 services and ensure that the Muslim Council has at least one Shi'ite member; and (5) revise it's religious observance calendar to include observances unique to Shi'ite Muslims. Dkt. #36, ¶ 5.
Following implementation of the Protocol, Cancel moved for civil contempt, arguing that DOCS "disobeyed the express mandate of the Court to afford Shi'a inmates separate religious services under appropriate Shi'a leadership." Dkt. #36, Exh. D, p.4. Despite the language used by the Appellate Division, the Hon. Mark C. Dillon, J.S.C., determined that
The Order of the Appellate Division remitting this matter to . . . DOCS does not mandate separate religious services for the Shi'a inmates. If it had, there would have been no need of a remittal. The Order only mandates that . . . DOCS determine the manner in which the Shi'a inmates can practice their faith, apart [from] Sunni prisoners.
On January 24, 2002, plaintiffs filed grievances at the Elmira Correctional Facility ("Elmira"), claiming that the Protocol did not conform to Cancel v. Goord and violated their right to attend separate Shi'a prayer services. Dkt. #5, Exh. 2. DOCS denied the grievances, stating:
Jumah services are held on Friday afternoon with Shi'ite and Sunni Muslims in the mosque. Worship classes for Sunni and Shi'ite are held separately each week. Therefore, the facility is in accordance with the state directive and the Cancel v. Goord decision.
Plaintiffs commenced this action by filing a complaint in the Northern District of New York on April 12, 2002, which was transferred to this district for proper venue. Dkt. #5. Although plaintiffs' complaint acknowledges that the Islamic Chaplin at Elmira had authorized a Shi'a study group one night per week to enable Shi'ite Muslim inmates to learn and study the Shi'ite Muslim Sect of Islam, plaintiffs allege that Shi'ite inmates have not been afforded a meaningful or reasonable opportunity to freely participate and practice the Shi'a faith in a separate religious service as set forth in Cancel v. Goord and as required by the First Amendment to the United States Constitution. Dkt. #5, ¶ 4. Plaintiffs demand Jumah services ...