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Keesh v. Smith

September 25, 2007


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge


In this amended civil rights complaint, plaintiffs Tyheem Y. Keesh and Jesus Jova claim that defendants have violated their First Amendment rights to freely practice their chosen religion as well as their rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. (Dkt. No. 26). Plaintiffs also claim that defendants have violated the plaintiffs' rights to Equal Protection and Due Process in connection with the right to practice their chosen religion and have retaliated against plaintiffs for the exercise of their First Amendment rights.*fn1 Finally, plaintiffs allege that defendants' conduct violated various state regulations and Department of Correctional Services (DOCS) Directives.*fn2 Plaintiffs seek both injunctive and substantial monetary relief.

Presently before the court are two dispositive motions. Defendants have filed a motion for summary judgment pursuant to FED. R. CIV. P. 56, (Dkt. No. 101). Plaintiffs have opposed defendants' motion (Dkt. No. 117) and have cross-moved for summary judgment, (Dkt. No. 112).

Defendants have opposed plaintiffs' cross-motion, (Dkt. No. 118), and plaintiffs' have filed a reply. (Dkt. No. 119). The record is filled with an enormous number of exhibits, including the deposition transcripts of both plaintiffs. On June 18, 2007, plaintiffs filed additional exhibits in support of their motion. (Dkt. No. 125). Many of the documents have been sealed from public view. (Dkt. Nos. 102-11).


1. Summary Judgment

Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. FED. R. CIV. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). At that point, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id.

In this case, both defendants and plaintiffs have moved for summary judgment. Thus, both sides are arguing that there are no questions of material fact and that they are entitled to judgment as a matter of law. Plaintiffs claim that they have shown that under the First Amendment as well as RLUIPA, they are entitled to practice their religion as they see fit, and defendants claim that they have shown that plaintiffs' individualized religious beliefs were properly accommodated under both the Constitution and RLUIPA. Defendants also argue that collateral estoppel bars plaintiffs' religion claims, and that plaintiffs have failed to state a claim for retaliation. Finally, defendants argue that the complaint fails to state a claim against former Governor George Pataki, and that defendants are entitled to qualified immunity.

2. Facts*fn3

On October 14, 2003, plaintiff Keesh wrote a letter to defendants Goord and Smith, advising them of his desire to practice the "Tulukeesh" religion. Amended Complaint (AC) at ¶ 1 and Ex. 1. (Dkt. No. 26). Plaintiff Keesh's letter also sought to establish Tulukeesh as an authorized religion within DOCS. Id. Ex. 1. According to plaintiff Keesh, "Tulukeesh" is the "Religion of Zee Keesh (The Creator)," and plaintiff identifies himself as the "Savior and Teacher" of Tulukeesh. Id. Ex. 1 at pp.1, 3. Plaintiff Keesh also states that he is the "Leader and Founder" of Tulukeesh. Mans Aff. Ex. 19, Keesh Aff. ¶ 3.*fn4

The letter further outlined many of the required practices and observances of Tulukeesh. AC, Ex. 1. These practices include adherence to dietary laws, observation of holy days and fast days, possession of religious items and literature, hygiene requirements, exercise, and health requirements. Id. at pp.1-6. The dietary laws include eating a vegan diet, without soybeans, prepared only by another follower of Tulukeesh. Id. at pp.1-2. Additionally, certain foods must be eaten on certain days of the week, and plaintiff Keesh carefully outlined in his letter which foods were to be eaten on which days. Id. at p.2. The specified holy days include the birthdays of plaintiff Keesh; Dr. Martin Luther King; Bob Marley; and Judy Keesh (plaintiff's mother). Id. at p.3. The religious items that each Keesh adherent must possess include a prayer rug and mat; head crown; flag; and a library of not less than seventy books. Id. at pp.4-5. They are also required to have access to both a radio and a cassette player. Id. at pp.4-5.

Tulukeesh followers must have "professional" training*fn5 in the martial arts, must spar with a partner, and must have all the equipment associated with this activity. Id. at p.5. Tulukeesh followers do not believe in taking any program offered by DOCS, because the Creator (plaintiff Keesh) is "much stronger and Powerful than any program DOCS can offer . . . ." Id. at p.6. Tulukeesh adherents believe that they are unlawfully incarcerated and should be returned to society. Id. They must maintain proper grooming and shower for at least seven minutes per day. Id. at p.5. Tulukeesh also requires congregate services and gatherings with other followers. AC at Facts ¶ 12. These are only some of the requirements of Tulukeesh that were included in the October 14, 2003 letter.

Plaintiff Keesh has also authored the Holy Book of Tulukeesh, entitled the "Holy Blackness." Defendants' Ex. G. At his deposition, plaintiff Keesh stated that the Creator inscribed the Holy Blackness into plaintiff Keesh's heart and that Keesh was the "tool" used to put the book on paper. Defendants' Ex. L, Keesh Dep. at 55. In one of plaintiff Keesh's affidavits, he states that he has been receiving "revelations from ZEE KEESH (. . . "The Creator)" since plaintiff Keesh was a child, and that Zee Keesh told plaintiff Keesh to practice and believe "different religions in the early stages." Defendants' Ex. 19, Keesh Aff. ¶¶ 4, 7.

By memorandum dated October 17, 2003, defendant Superintendent Smith acknowledged receipt of plaintiff Keesh's letter-request and told plaintiff that DOCS took no position in acknowledging any religion within the inmate population, rather, DOCS supported "the concept of religious liberty." AC, Ex.2. Defendant Smith also pointed out that, at that time, plaintiff Keesh's religion was listed in DOCS records as Nation of Islam (NOI), and that prior to further action by DOCS, it would be helpful to have plaintiff Keesh's book reviewed by the Coordinating Chaplain, Imam Rashid. Id. In his memorandum, defendant Smith further stated that "your beliefs are fundamental and you may practice them as best you can, in the privacy of your cell, within the parameters established by current facility operational procedures." Id.

In a memorandum to defendant Smith, dated October 22, 2003, plaintiff explained that he had met with the Chaplains, and that his only concern was that adherents of Tulukeesh be allowed to practice their religion. AC, Ex. 3 at p.1. Plaintiff then explained that he was sincere in his beliefs, evidenced by the fact that he had given up many things to practice Tulukeesh, including many foods that he otherwise would have eaten. Id. Plaintiff stated that the Creator forbade plaintiff from eating these foods, and that plaintiff no longer had a will of his own, his will was that of the Creator. Id.

In his October 22, 2003 memorandum, plaintiff mentioned his affiliation with NOI, stating that he identified with that religion and that NOI religious material had been given to him by his grandfather, who received the material from Elijah Muhammad. Id. However, plaintiff did not accept the teachings of NOI's current leader, Louis Farrakahan. Id. at p.2. Plaintiff referred to a prior lawsuit, brought in the Western District of New York in which plaintiff Keesh claimed that the defendants were depriving him of his right to practice the NOI religion.*fn6 Id.

On October 28, 2003, defendant Gorelick sent plaintiff Keesh a memorandum, stating that approval of all requests for congregate services or classes required the involvement of an "outside" member of the clergy, together with an approved inmate acting as a facilitator. Id. Ex. 4. Defendant Gorelick stated that until those requirements were met, "individual services" could be held in plaintiff Keesh's cell, but that approved menus and holidays would also have to be coordinated with outside clergy. Id.

On November 3, 2003, defendant Nuttal, the Deputy Commissioner for Program Services wrote plaintiff Keesh a letter, responding to Keesh on behalf of then-Governor Pataki and Commissioner Goord. Id. Ex. 6. Defendant Nuttal reminded plaintiff that he was still registered as a member of the NOI, and that plaintiff was still participating in the religious activities of that group. Defendant Nuttal told plaintiff that if he wished to change his religious registration, he would have to make that request through the Coordinating Chaplain. Id. Plaintiff Keesh subsequently applied to change his religious affiliation, however, because DOCS did not formally recognize Tulukeesh, plaintiff's religion was changed to "other" in DOCS records. Id. Exs. 7, 8, 10. This change appears to have taken place in mid-November of 2003. Id. Ex. 10.

Plaintiff Keesh filed various grievances regarding his religious requests as well as grievances complaining about alleged retaliation. See e.g. AC, Exs. 13, 18, 62, 63, 64, 70, 73. In a grievance, dated December 3, 2003, plaintiff Keesh again complained that he was not being allowed to practice his religion, and complained that he could not comply with DOCS Directive 4202 because there were no Tulukeesh clergy outside the facility. Id. Ex. 13 at p.1. Plaintiff also complained that his religious affiliation had been changed to "other" and not "Tulukeesh." Id. Plaintiff stated that a copy of the Holy Blackness had been confiscated during a cell search and "copied" without his permission in violation of federal copyright laws. Id. at p.2. The book was apparently returned to plaintiff. Id. Finally, plaintiff claimed that defendant Gorelick was preventing plaintiff from participating in physical education in retaliation for his complaints because defendant Gorelick knew that participating in physical education was part of plaintiff's religion. Id.

The Inmate Grievance Review Committee (IGRC) found that plaintiff should be able to practice his religion as outlined in Directive 4202. Id. at 3. At the Superintendent's appeal level,*fn7 on January 7, 2004, plaintiff was again advised that he could practice his beliefs in the privacy of his own cell, and that plaintiff's religious designation had been changed to "other" in accordance with DOCS policy.*fn8 Finally, plaintiff was told that he could participate in physical education "as long as he's not otherwise assigned." Id. at 4.

On March 17, 2004, the Central Office Review Committee (CORC), the final appeal level for grievances, upheld the Superintendent's determination. Id. at 5. Plaintiff was told that his documents had been returned to him, that he was welcome to encourage an outside "clergyperson" to contact the Coordinating Chaplain and apply to become a registered religious volunteer as stated in DOCS Directive No. 4202(C).*fn9 Id. Plaintiff was also told that he could choose the "religious alternative meal" (RAM). Id. Finally, plaintiff was told that he should address any concerns regarding his excessive weight loss to the medical department.*fn10 Id.

Plaintiff Keesh has attached many letters to this complaint, both that he has sent to prison officials and to other individuals as well as letters that plaintiff received in response to his complaints. See e.g. Exs. 14, 15, 26, 27, 28, 29, 30, 32, 33. On December 29, 2003, plaintiff received a letter from Executive Deputy Commissioner, John R. Patterson, Jr. stating that a review of the matter revealed that facility staff had responded attentively to plaintiff Keesh's desire to practice Tulukeesh, "a religion that you founded, and one where you consider yourself to be its Savior." Id. Ex. 14. In concluding that facility staff had acted reasonably and appropriately, Deputy Commissioner Patterson stated that facility staff had changed plaintiff's religious designation, had read his Holy Blackness book, and had allowed plaintiff to practice his religion in his cell. Id.

On December 30, 2003, defendant Nuttal wrote plaintiff a letter on behalf of defendants Pataki and Goord, stating, inter alia, that plaintiff's religious designation had been changed to "Tulukeesh"*fn11 and that plaintiff had been allowed to practice his faith. Id. Ex. 15. Plaintiff was told that the facility staff had verified that the Holy Blackness had been returned to plaintiff in good condition, however, if plaintiff believed that the book had been damaged, he could file a claim.

On January 9, 2004, Plaintiff Jova filed a grievance. Id. Ex. 18. Plaintiff Jova basically complained in very similar language to plaintiff Keesh, that Jova was being denied the right to properly practice Tulukeesh. Id. Ex. 18. Plaintiff Jova apparently did not receive a response to this grievance and thus, appealed to the Superintendent on January 19, 2004. Id. at p.2. On February 2, 2004, plaintiff Jova wrote an appeal to the Commissioner, apparently because he had no answer to either his initial grievance or his appeal to the Superintendent. Id. at p.3.

In June of 2004, plaintiff Keesh brought a proceeding in New York State Supreme Court, pursuant to N.Y. CIV. PRAC. L. & R. § 7803 et seq. (Article 78). In his Article 78 proceeding, plaintiff alleged that the determinations made by defendants Goord and Smith regarding the practice of Tulukeesh deprived plaintiff Keesh of his constitutional right to practice his religion.

The documents associated with plaintiff Keesh's Article 78 proceeding have been included at Exhibit 15 of Exhibit L of the Mans Affidavit. Plaintiff clearly raised both his constitutional claim as well as his claim under RLUIPA. Ex. 15 at 19, 21-22.

Plaintiff Keesh's petition was dismissed on the merits. Mans Aff., Ex. L, Ex. 16. In his decision, State Supreme Court Justice E. Michael Kavanagh stated that the issue was "whether respondents have a rational basis for the manner in which they dealt with petitioner's request and ultimate grievance." Id. at p.2. Justice Kavanagh determined that the prison officials acted reasonably and appropriately in responding to Keesh's request for accommodation of his religious beliefs. Id. Justice Kavanagh also found that the application of Directive 4202's requirement of an outside cleric was proper, stating that the basis for such a requirement was "obvious." Id. at 2- 3. The court then found that petitioner's claims were "misguided and without merit." Id. at 3. Plaintiff Keesh appealed Justice Kavanagh's denial of the Article 78 petition. The Appellate Division, Third Department affirmed the denial on February 6, 2006, finding that the response to petitioner's grievance was "consistent with and served to further institutional objectives of confinement, order and safety." Id. Ex. 17, Allah v. Goord, 2006 N.Y. App. Div. LEXIS 1725 (3d Dep't Feb. 6, 2006). The court concluded that the determination, denying petitioner's grievance was neither "arbitrary nor capricious." Id.

Plaintiffs have been disciplined for violations of prison rules and regulations in connection with their efforts to practice their religious beliefs. See e.g. AC, Ex. 50. They have been subjected to cell searches, and their religious papers have been seized by prison authorities. The court does note that on December 5, 2003, plaintiff received a memorandum from defendant Smith regarding the confiscation of plaintiff Keesh's Holy Blackness book. AC, Ex. 12. Defendant Smith stated that plaintiff's book was taken during a "routine cell search" and copied for review because the staff thought that the symbols on the cover were that of an "unauthorized organization."*fn12 Id. Defendant Smith pointed out that the staff involved in the routine cell search had no way of knowing that the book had already been reviewed by Ministerial Staff and Executive Team staff. Id.

Plaintiff had his book published by an outside publisher. Mans Aff. Ex. L, Ex. 22. Exhibit 22 is a letter from plaintiff Keesh to Kathleen Shaputis of Gorham Printing, dated April 27, 2004. Id. Ex. 22 at p.1. In that letter, plaintiff Keesh stated that he was enclosing money toward the order of 100 copies of the Holy Blackness, and indicated in the letter that the rest of the cost of the order would be sent by plaintiff Jova. Id. Ms. Shaputis was instructed to send the bulk of the books to an address outside the facility and forward two copies to plaintiff Keesh. Id. Defendants have filed an entire packet of correspondence with Ms. Shaputis regarding the publication of the Holy Blackness. (Dkt. No. 110, Ex. G). This exhibit contains letters, drafts, and excerpts of books on self-publishing. Id.

On July 26, 2004, after a cell search conducted on July 23, 2004,*fn13 plaintiff Keesh was charged with various violations, including engaging in martial arts; disorderly conduct; soliciting; and "unauthorized organizations/activity." AC, Exs. 49, 51. Defendant Gorelick held a disciplinary hearing, after which plaintiff Keesh was found guilty of three of the four charges. Id. He was found not guilty of disorderly conduct (sparring). Id. Plaintiffs have filed the transcript of the hearing as one of their exhibits. (Dkt. No. 117, Ex. 140). Plaintiff Keesh was found not guilty of disorderly conduct because there was no evidence that he was actually seen sparring. Id.

Although plaintiff was given penalties for the guilty dispositions, the penalties were suspended for four months and "deferred" for six months. Id. at p.1. Plaintiff spent only six days in pre-hearing keeplock. Id.

The reasons for defendant Gorelick's disposition include that although DOCS took no position on what is or is not considered a religion, plaintiff was not entitled to proselytize. Id. at p.2. At the hearing defendant Gorelick read into the record a letter, written by plaintiff in which he stated that he had been teaching Tulukeesh to other inmates at the facility. Plaintiffs' Ex. 140, Transcript of July 29, 2004 Disciplinary Hearing at 3-4. On July 30, 2004, plaintiff received a memorandum from defendant Smith in response to a July 26, 2004 letter from plaintiff Keesh regarding his misbehavior "reports."*fn14 AC, Ex. 52. The memorandum states that plaintiff Keesh had been advised "repeatedly" that he could hold any beliefs that he wished, and that he could practice his religion within the confines of his cell. However, plaintiff had chosen to ignore this direction and attempt to recruit other inmates. Id.

In the memorandum, defendant Smith referred to the disciplinary proceeding and stated that plaintiff had been counseled on the tape recording of that proceeding to stop all efforts centering on "recruitment, proselytizing and the distribution of written material." Id. Finally, the memorandum stated that Directive No. 4202 prohibits this behavior, and that plaintiff's failure to comply would result in the issuance of the appropriate disciplinary charges, including refusal to obey a direct order. Id.

Plaintiff appealed the hearing disposition itself, and on August 9, 2004, plaintiff received another memorandum from defendant Smith, stating that although he found that the hearing was conducted appropriately, defendant Smith was reversing the charge of "Martial Arts." AC, Ex. 55. Defendant Smith agreed with plaintiff that the misbehavior report did not fully support the martial arts violation, thus, that charge was being dismissed. Id. Defendant Smith found that the penalty imposed for the other violations was appropriate. Id. The Superintendent's determination was affirmed on October 8, 2004 by Donald Selsky, the Director of Special Housing and Inmate Disciplinary Program. AC, Ex. 58. On November 9, 4004, the unauthorized organization charge was dismissed by Donald Selsky. AC, Ex. 59.

The last charge of solicitation was dismissed after an Article 78 proceeding.*fn15 In re Keesh, 26 A.D.2d 560, 807 N.Y.S.2d 733 (3d Dep't 2006). The solicitation charge was based upon a correspondence to and from a printing company indicating that plaintiff Keesh had completed a transaction for the printing of the Holy Blackness. Id. 26 A.D.2d at 561, 807 N.Y.S.2d at 734. The court reversed the charge because that letter was not included in the record. Id. The court held that a photocopy of the book cover and a blank order form did not establish that plaintiff Keesh had been in contact with a printing company to print the book or ordering copies of it. Id.

This court notes that it is clear, however, and plaintiffs cannot honestly dispute, that regardless of the reversal of this disciplinary hearing, plaintiffs did contact a publishing company and had at least one hundred copies of the Holy Blackness published without the Superintendent's consent. This record contains overwhelming evidence of this fact. See e.g. Dkt. No. 105, Defendants' Ex. 22 (letter to Kathleen Shaputis of Gorham Publishing enclosing partial payment for the order of 100 Holy Blackness books). Thus, the reversal of plaintiff's July 29, 2004 disciplinary hearing in no way indicates that plaintiffs were the subject of "false" disciplinary charges.

Plaintiff Jova's cell was also searched on July 23, 2004, and he was charged with possession of contraband; unauthorized organization; solicitation of goods; practicing martial arts (attempt or conspiracy); and disorderly conduct (sparring). AC, Ex. 39. He was accused of possessing the Holy Blackness which was plaintiff Keesh's book. Jova was not authorized to have the Holy Blackness. Id. These were very similar charges to plaintiff Keesh's charges of July 26, 2004. Defendant Ewanciw presided as the hearing officer.*fn16 Id. Ex. 40.*fn17 Plaintiff Jova was found guilty only of the contraband; unauthorized organization; and solicitation charges. Id. Ex. 40. Plaintiff Jova was given a suspended sentence, but was also cautioned about his behavior. Id. at p.2. Plaintiff Jova appealed the disposition, and on August 19, 2004, defendant Smith affirmed the dispositions. Id. Exs. 42-43.

Plaintiff Jova appealed the Superintendent's decision, and the dispositions were again affirmed on October 12, 2004 by Donald Selsky. Id. Exs. 44-45. Plaintiff Jova then wrote to defendant Goord. Id. Ex. 46. Plaintiff Jova claimed that because his charges were identical to those of plaintiff Keesh, and plaintiff Keesh had some of his charges dismissed, then some of plaintiff Jova's charges should be dismissed also. Id. As a result of plaintiff Jova's letter, Lucien J. LeClaire, Jr., Deputy Commissioner, forwarded a copy of plaintiff Jova's arguments to Donald Selsky for "reconsideration." Id. Ex. 47. On February 3, 2005, Donald Selsky dismissed the charge of unauthorized organization, but affirmed the "suspended" penalty for the other charges. Id. Ex. 48.

Both plaintiffs filed grievances after the July 23, 2004 cell search and subsequent disciplinary charges. Id. Exs. 62 (Keesh); 64(Keesh); 70 (Keesh) and 63 (D'Lucca*fn18 /Jova). Plaintiff Keesh's first grievance reiterated his desire to practice Tulukeesh as he saw fit and complained that he was experiencing more illness because his dietary needs were not being accommodated. Id. Ex. 62. Plaintiff Jova complained that the material that had been confiscated from his cell on July 23, 2004 should have been returned to him. Id. Ex. 63. Plaintiff Keesh's grievance was denied at all levels. Id. Ex. 62 at pp.2-4. Although the IGRC found that because the materials confiscated from plaintiff Jova were never "labeled" contraband, they should have been returned to him, the Superintendent denied the grievance finding that the materials were the subject of a disciplinary hearing after which plaintiff Jova was found guilty. Id. Ex. 63 at pp.2-3.

Plaintiff Keesh's second grievance, dated August 5, 2004, also complained about the July 23, 2004 cell search and alleged that his property was not returned, he could not pursue his "legal action" in court, and he could not write to his family. Id. Ex. 70. Plaintiff also claimed that defendant Smith's order not to proselytize was not being given to other religious groups or people. Id. On September 9, 2004, defendant Smith denied the grievance and held that plaintiff's cell was searched "as part of an ongoing investigation into his . . . attempts to recruit followers of his self-developed religion" despite being given orders not to do so. Id. at p.2. Defendant Smith further held that the cell search was made in accordance with DOCS Directive No. 4910. Id. The CORC affirmed the Superintendent's findings and stated that there is no requirement in Directive 4910 that an inmate be present at the time of a cell search. Id. at p.3. The CORC also stated that plaintiff Keesh was afforded all of his procedural rights at the disciplinary hearing and subsequent appeals. Finally, the CORC found that there was insufficient evidence to establish either a claim of retaliation or of discrimination. Id.

Plaintiff Keesh's third grievance was dated September 8, 2004. Id. Ex. 64. This grievance challenged the July 23, 2004 cell search and claimed that the search was in retaliation for plaintiff filing the Article 78 proceeding. Id. Ex. 64. Plaintiff also claimed that he was being denied access to courts as the result of the cell search. Id. The IGRC issued a "split" determination. Id. at p.2. Part of the committee found that since the material was never considered contraband, it should have been returned, but another part of the committee found that the material was "determined to be unauthorized group materials." Id. at p.2. Plaintiff Keesh appealed, and at the Superintendent's level, defendant Smith denied the grievance, stating that the materials were being reviewed, and that officials would return the materials that plaintiff was entitled to possess. Id. at p.3. On November 24, 2004, the CORC held that the cell search was not retaliatory, nor was it conducted to deprive plaintiff of his access to courts. Id. at p.4.

The CORC decision also stated that plaintiff Keesh's book had been referred to the Central Office Media Review Committee, which determined that the book did not violate any of the guidelines set forth in DOCS Directive No. 4572. Id. However, based upon plaintiff Keesh's "unique circumstances" as the "self-proclaimed savior or holy prophet of the Tulukeesh religion" the book would remain in the possession of the facility chaplain. Id. The plaintiff would be able to have reasonable access to his book in the chaplain's office. Id.

On September 20, 2004, defendant Smith sent plaintiff Keesh a memorandum stating that all material that was deemed contraband and confiscated as a result of the July 24, 2004 disciplinary hearing was placed in plaintiff's personal property in the IRC Office. Id. Ex. 66. Defendant Smith stated that he was making the "exception" because of plaintiff Keesh's "open litigation relative to this matter," and that the material to which the plaintiff was entitled ...

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