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Blast v. Fischer

July 6, 2010

SYNTHIA CHINA BLAST, 97-A-0308, PLAINTIFF,
v.
BRIAN FISCHER, COMMISSIONER, ET AL., DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #50.

Plaintiff filed motions for contempt of a settlement agreement (Dkt. #73 & Dkt. #83), but subsequently moved to withdraw those motions (Dkt. #83 & Dkt. #91). Plaintiff also moved for a preliminary injunction enjoining defendants from denying plaintiff certain items pertaining to the practice of Santeria (Dkt. #75), and subsequently moved to withdraw that motion. Dkt. #83 & Dkt. #91. Plaintiff moved to withdraw her consent to settlement and reopen the case (Dkt. #76), but subsequently moved to withdraw that motion as well. Dkt. #83. Plaintiff has not moved to withdraw a motion to appoint counsel (Dkt. #88); motion for discovery (Dkt. #89); and motion to schedule a telephone conference. Dkt. #90. For the following reasons, the motions are denied.

BACKGROUND

Plaintiff, an inmate at the Wende Correctional Facility ("Wende"), commenced this action pro se, alleging that the New York State Department of Correctional Services ("DOCS"), was depriving her of the opportunity to practice the Santeria religion, in violation of her constitutional rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). Dkt. #11.

The parties submitted a stipulation of settlement and order of dismissal (Dkt. #71), which the Court "SO ORDERED" on October 23, 2009. Dkt. #72. The stipulation of settlement provided, inter alia, that defendants would issue Blast a religious permit for the items agreed to by the parties, deliverable upon Blast's execution of this agreement. Blast acknowledges that the items set forth in the religious permit are sufficient for Blast to freely and adequately practice Blast's religion.

Dkt. #71, ¶ 2. The religious permit granted plaintiff permission to possess, inter alia, "up to four bottles (each eight ounces or less) of ritual water and up to five bottles of spiritual water a month (each eight ounces or less) from approved commercial vendors." Dkt. #83, p.11. With respect to vendors, the permit provides as follows:

You may submit information on vendors you wish to be considered for purchase of these items, in order to have the vendors approved. Vendors will be asked for ingredients for the... waters.... Items purchased may be tested for any hazardous or dangerous ingredients or materials. Items purchased may not contain alcohol or contraband drugs.

Items such as... waters... must be purchased and stored in appropriate plastic containers.

Dkt. #83, p.12.

Edward Bly, Director of the Correction Emergency Response Team ("CERT"), declares that all of the vendors suggested by plaintiff "indicated all of their waters contained alcohol." Dkt. #86, ¶ 8. Colonel Bly declares that DOCS retained a Santeria expert, Dr. Terry Rey, who "was not able to find waters without alcohol." Dkt. #86, ¶ 9. As a result, DOCS inquired what ingredients plaintiff would require to prepare the waters, but concluded that some of the ingredients requested would pose security concerns. Dkt. #86, ¶ ¶ 11-15. Subsequently, DOCS identified three potential vendors:

One vendor informed us by e-mail that they had Rose Water and Orange Water available without alcohol. One vendor informed us by fax that they had Holy Water and Pyramid Water that did not contain alcohol. Another vendor advertises Camphor Water, Holy Water, Orange Water, Rose Water, and St. Claire Water. Their internet information explains that these have essential oils in distilled water and claim that the waters are not alcohol based.

Dkt. #86, ΒΆ 17. Colonel Bly declares that the "tests will be conducted at Department expense," and states that "[b]ecause of the cost of testing, [DOCS] agrees to provide one spiritual water and one ritual water," ...


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