The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action in which the plaintiff, a Shi'ite Muslim prison inmate, is suing officials of the New York State Department of Corrections ("DOCS") for alleged violations of his right of religious freedom, pursuant to 42 U.S.C. § 1983 (First and Fourteenth Amendments to the United States Constitution), the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., and the Constitution of the State of New York. Now before the Court is an application [#17] by plaintiff for injunctive relief. For the reasons that follow, the application is granted in part and denied in part.
In this lawsuit, plaintiff alleges that DOCS refuses "to recognize Shi'ite Islam as deserving of the rights and respect accorded other religions." (Second Amended Complaint [#45] ¶ 27) Instead, plaintiff contends that DOCS favors Sunni Islam over Shi'ite Islam, to the point that "DOCS has effectively established Sunni Islam as the official version of Islam within the New York State prison system." (Id. ¶ 26). For example, he maintains that all Islamic religious services in DOCS facilities, including Friday Jumah services, are conducted according to the doctrines of Sunni Islam, and that DOCS recognizes Sunni Islam holy days, but does not recognize the Shi'ite holy days Eid-Ghadir, Muharram, or Ashura, and does not provide Shi'ite inmates with Halal food on these holy days. (Id. ¶ ¶ 20-59) According to plaintiff, Eid-Ghadir is a three-day celebration of the prophet Muhammad's nomination of Ali as his successor, Muharram is a ten-day period of mourning in recognition of the death of Hussain, Muhammad's grandson, at the Battle of Karbala, and Ashura is a one-day observance consisting of "congregational prayer and quiet contemplation." ((Id. ¶ ¶ 41, 46, 51) According to plaintiff, on these holy days Shi'ites are required to consume only Halal foods, which include milk, honey, fish, plants which are not intoxicant [sic], fresh or naturally frozen vegetables, fresh or dried fruits, legumes and nuts like peanuts, cashews, etc. and grains such as wheat and rice. Certain animal meats may also be consumed if they are slaughtered according to Islamic Rites. (Id. ¶ 56).
Plaintiff contends that DOCS forces Shi'ites to worship together with Sunnis at Friday Jumah services, which is unacceptable to him, since "there are significant doctrinal differences between" the two sects, which originated with "a disagreement about the succession to the Prophet Mohammad upon his death." (Id. ¶ 22) Plaintiff maintains, in fact, that "Sunnis believe that Shi'ites are heretics and sinners," and that consequently, "there are often violent clashes between the two groups because of their doctrinal differences." (Id. ¶ 24) Plaintiff contends that "it is essential to . . . practice of the Shi'ite faith that he be allowed to participate in a Jumah prayer service, which takes place on Fridays," separate from Sunni Muslims. Plaintiff contends that "a Shi'ite Muslim may not share the Jumah service with a Sunni Muslim because many of the Sunni Muslim rituals, prayers, and practices are antagonistic to the Shi'ite rituals, prayers, and practices and will actually invalidate Shi'ite prayrs." (Id. ¶ 33) Moreover, plaintiff contends that Jumah is a "congregational prayer," and that praying on his own is not an "acceptable alternative." (Id. ¶ ¶ 30, 34).
In the subject application, plaintiff seeks an injunction: 1) requiring DOCS to allow Shiite inmates to have their own Friday Jumah services, separate from Sunni inmates; 2) requiring DOCS to allow Shiite inmates to observe Shiite religious holidays; and 3) requiring DOCS to provide Halal religious meals to Shiites on such holidays.*fn1
With regard to separate Jumah services, plaintiff reiterates, in an affidavit, that the Shiite faith does not permit Shiites to pray with Sunnis at Jumah services, and that separate Jumah services are "central" to his religious beliefs as a Shiite. (Pl. Aff. [#31-1] ¶ 7) Plaintiff acknowledges that, to avoid conflict, some Shiite inmates participate in Jumah services with Sunnis or pray on their own. (Id. ¶ 10). However, he insists that neither option is acceptable to him. With regard to the observance of religious holidays and religious meals, plaintiff states that the religious holidays Eid-Ghadeer [or EidGhadir], Muharram, and Ashura are "especially important" to Shiites, and that they require congregational prayer and fasting during the daytime, and the eating of Halal meals after sundown. (Id. ¶ ¶ 11-13) Plaintiff specifically states that Sunnis do not observe either Eid-Ghadeer or Muharram, and that they "generally" do not celebrate Ashura. (Id. ¶ ¶ 12, 15, 18) On the other hand, plaintiff asserts, "upon information and belief", that "Sunni Muslims are allowed to participate in their designated religious holidays and are provided Halal food without interference from DOCS." (Id. ¶ 22)
In support of his application, plaintiff submitted, inter alia, a document prepared by DOCS entitled "Protocol for Shiite Muslim Programs and Practices" ("the Protocol") [#31-3], which states that it "is intended to 'fine tune' the religious programming by which Shi'ite Muslim inmates' religious practices and beliefs are to be more adequately accommodated in accordance with the requirements and provisions of the Department's Directive #4202 (Religious Programs and Practices)." The Protocol further states, in relevant part:
Shi'ite Muslim inmates shall be afforded the full and equal opportunity to participate in, without discrimination, the weekly Friday Juma service for all Muslim inmates of a particular correctional facility. Shi-ite Muslim Chaplains, whether they be employees or outside volunteers, shall be entitled to officiate at the weekly Juma services in the same manner as any other Muslim chaplain or outside volunteer Chaplains.
The Department [DOCS] shall revise its Religious Observance Calendar . . . to include observances unique to Shi'ite Muslims, namely the observances of Ashura, and the Id-ul-Ghadeer Khum. (Protocol [#31-3] p. 4). Plaintiff alleges that defendants are violating this protocol, because all Muslim chaplains at DOCS facilities are Sunni, and because Shi'ites are not allowed to observe Shi'ite holy days. (Second Amended Complaint [#45] ¶ ¶ 27, 37-59) Plaintiff further alleges that the Protocol itself is invalid, to the extent that it fails to provide for a separate Shi'ite Juma service, since it violates the Order of the New York State Supreme Court, Appellate Division, Second Department, in Cancel v. Goord, 278 A.D.2d 321, 323, 717 N.Y.S.2d 610, 612 (2d Dept. 2000) ("Accordingly, we . . . remit the matter to DOCS to conduct administrative proceedings, with Shi'a participation, to determine the manner in which to best afford Shi'a inmates separate religious services, under appropriate Shi'a religious leadership, in a time and place that comport with legitimate penological concerns.").*fn2
Additionally, in support of his application, plaintiff has submitted an affidavit from Dr. Liyakat Takim ("Takim"), Professor of Islamic Studies in the Department of Religious Studies at the University of Denver, Colorado, whose "area of expertise is the Shi'ite branch of Islamic doctrine." (Takim Aff. [#52-1] ¶ 2) Significantly, Takim asserts that:
For the Jumah prayer to be valid for a Shi'ite, the leader of prayer must be mature, sane, Shi'ite, just and of legitimate birth. Thus, a Sunni Imam is not recognized by Shi'ites as being qualified to lead Jumah prayer. In fact, a Jumah prayer led by a Sunni Imam is insufficient to fulfill the obligations of a Shi'ite Muslim's faith. (Id. ¶ 24). Takim further states that, "providing Shi'ite Muslims the opportunity to observe the Shi'ite religious holidays of Eid-Ghadeer, Muharram and Ashura and providing Halal food ...