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Floyd Cowart v. Omar Abdel-Razzaq

March 14, 2011

FLOYD COWART, PLAINTIFF, AND
v.
OMAR ABDEL-RAZZAQ, CHAPLAIN,
CONSENT DEFENDANT.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION ORDER

JURISDICTION

On February 24, 2009, the parties to this action consented pursuant to 28 U.S.C. § 636(c)(1) to proceed before the undersigned. The matter is presently before the court on Defendant's motion for summary judgment (Doc. No. 26), filed March 18, 2010.

BACKGROUND

Plaintiff Floyd Coward ("Plaintiff" or "Cowart"), an inmate in the custody of New York State Department of Corrections ("DOCS"), and proceeding pro se, commenced this civil rights action on July 28, 2008, alleging that while incarcerated at Five Points Correctional Facility ("Five Points" or "the correctional facility"), in Romulus, New York, Defendant Omar Abdel-Razzaq ("Defendant" or "Abdel-Razzaq"), violated his First Amendment rights by retaliating against Plaintiff for seeking redress of grievances. Plaintiff asserts two claims for relief against Defendant, who is employed by DOCS as the Muslim Coordinating Chaplain at Five Points. Specifically, Plaintiff claims that after complaining by letter to the DOCS Coordinating Chaplin in Albany, Imam K. Abdulkhabir ("Imam Abdulkhabir"), regarding Defendant's repeated failure to resolve a matter pertaining to accusations Plaintiff made as to one of Defendant's clerks, Defendant "hatched a nefarious scheme to silence and get rid of plaintiff by soliciting the aid of another Muslim inmate which would have resulted in a violent physical act." First Claim for Relief, Complaint at 5A-5B ("First Claim"). Plaintiff further alleges that when Defendant realized his "nefarious scheme" had been "exposed," Defendant arranged for Lieutenant Chuttey to issue a false misbehavior report against Plaintiff, seeking to have Plaintiff removed from the general prison population and placed in the correctional facility's Special Housing Unit ("SHU"), for one year. Second Claim for Relief, Complaint at 5B-5C.

On March 18, 2010, Defendant filed the instant motion (Doc. No. 26) seeking summary judgment ("Defendant's motion"), along with supporting papers, including the Declaration of Omar Abdel-Razzaq in Support of Defendant's Motion for Summary Judgment (Doc. No. 27) ("Defendant's Declaration"), with attached exhibits A through C ("Defendant's Exh(s). __"), the Declaration of Lieutenant Brian Chuttey in Support of Defendant's Motion for Summary Judgment (Doc. No. 28) ("Chuttey Declaration"), with attached exhibits A through C ("Chuttey's Exh(s). __"), the Statement of Undisputed Facts in Support of Defendant's Motion for Summary Judgment (Doc. No. 29) ("Defendant's Statement of Facts"), and a Memorandum of Law in Support of Defendant's Motion for Summary Judgment (Doc. No. 30) ("Defendant's Memorandum").

In opposition, Plaintiff filed on January 10, 2011, Plaintiff's Response to Defendant's Motion for Summary Judgment (Doc. No. 41) ("Plaintiff's Response"), with attached exhibits 1 through 13 ("Plaintiff's Exh(s). __"), a Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Doc. No. 42) ("Plaintiff's Memorandum"), and a Statement of Genuine Issues of Material Facts in Support of Plaintiff's Answer for Summary Judgment (Doc. No. 43) ("Plaintiff's Statement of Facts"), with an attached exhibit ("Plaintiff's Statement of Facts Exhibit"). No papers in further support of Defendant's motion have been filed. Oral argument was deemed unnecessary.

Based on the following, Defendant's motion should be GRANTED.

FACTS*fn1

In late June or early July 2007, Plaintiff spoke with Defendant regarding an unspecified issue, involving tenant of the Muslim religion, concerning accusations Defendant alleged Plaintiff made to one of Defendant's clerks. Plaintiff repeatedly requested Defendant resolve the matter before it escalated and resulted in violence among Five Points' Muslim inmates, and refused to attend Five Point's Jumu'ha services (an Islamic religious exercise), held each Friday. When Defendant failed to resolve the matter, Plaintiff, by letter to Imam Abdulkhabir, DOCS's Ministerial Program Coordinator in Albany, dated August 14, 2007 ("August 14, 2007 letter"),*fn2 advised that despite repeated attempts to resolve issues involving Defendant's three clerks, Rashid, Sabur, and Salih (together, "the clerks"),*fn3 Defendant had failed to take any corrective action. August 14, 2007 letter at 1. Plaintiff reported to Imam Abdulkhabir that Rashid falsely accused Plaintiff of attending Muslim classes only to challenge Salih, and that Defendant, by failing to take corrective action with regard to the lies, was covering up for his three clerks, such that Plaintiff could no longer attend Jumu'ah services and classes to prevent Plaintiff "from harming one of those lying clerks should they utter the wrong thing." Id. at 2. Plaintiff requested Imam Abdulkhabir to either have the matter resolved, or have Defendant replaced "[b]efore matter escalate and Muslims begin to fight each other . . . ." Id. Plaintiff does not further describe the alleged lies, other than to refer to them as "slanderous." Id. The notation "cc: Imam Omar," appearing at the end of the August 14, 2007 letter, indicates Defendant was to receive a copy of the letter. Id. at 3.

Plaintiff, by letter to Imam Abdulkhabir dated August 15, 2007 ("August 15, 2007 letter"),*fn4 advised that in the August 14, 2007 letter, Plaintiff "deliberately omitted a[n] issue concerning the Shi'ites because [Plaintiff] did not have permission to include it," and that Plaintiff had also recalled another previously forgotten issue. August 15, 2007 letter at 1. According to Plaintiff, when Defendant approached the clerks regarding the alleged slanderous statements made regarding Plaintiff, the clerks refused to participate in the discussion. August 15, 2007 letter at 1. Plaintiff explains that because Islam does not permit an accused to refuse to participate in a hearing or discussion, Defendant was required, under Islamic law, to render a decision based on the evidence, including evidence that was unrefuted by the clerks who refused to participate in the discussion. Id. Plaintiff further asserts that Defendant's refusal to render a decision establishes Defendant role as the Muslim chaplain is a "farce," is encouraging the Muslim inmates to fight each other, and is biased against certain Muslims. Id. at 1-2. Plaintiff concludes that Defendant, by failing to resolve the issues, is encouraging or provoking the Muslims to fight each other. Id. at 2. The notation "cc: Imam Omar," appearing at the end of the August 15, 2007 letter, indicates Defendant was to receive a copy of the letter. Id. at 2.

By letter to Imam Abdulkhabir dated August 17, 2007 ("August 17, 2007 letter"),*fn5 Plaintiff advised that while in the correctional facility's law library on August 16, 2007, "Muslims," not otherwise identified, informed that Defendant was threatening to write an inmate misbehavior report against Plaintiff. August 17, 2007 letter at 1. Plaintiff further states that he "distributed copies of my letters to Muslims who have an interest in the outcome of the lies and slander. Even if they didn't, and I distributed it to everyone, it would be to clear up the lies and slander, since Imam Omar [Defendant] refused to adhere to the Qur'an and Sunnah." Id. The notation "cc: Imam Omar," appearing at the end of the August 17, 2007 letter, indicates Defendant was to receive a copy of the letter. Id.

In an Inmate Misbehavior Report dated August 17, 2007 ("Misbehavior Report"),*fn6 Lieutenant Chuttey reported that Defendant complained of receiving two letters from Plaintiff that threatened, harassed, and openly challenged Defendant's authority as Muslim chaplain of the correctional facility. Misbehavior Report at 1. According to Chuttey, Defendant reported Plaintiff had engaged in organizing, in violation of DOCS Inmate Rules ("Inmate Rules"), within the correctional facility's Muslim community by distributing copies of the letters to Muslim inmates in an attempt to secure a position of authority among the Muslim inmates. Id. Chuttey further reports Plaintiff is upset because Defendant will not allow Plaintiff to establish at the correctional facility "an inmate run justice and punishment system within the Muslim population." Id. at 2. According to Chuttey, Plaintiff has disputes with the inmates Defendant has appointed as his Muslim clerks, maintaining such the Muslim clerks should be selected by a vote among the Muslim prison population, rather than selected by the correctional facility's administration and Imam. Id. Plaintiff also admitted distributing the August 14 and 15, 2007 letters to Muslim inmates who are interested in the resolution of the alleged lies and slander, and cell searches revealed several inmates to be in possession of such copies. Id. at 3. As a result, Chuttey charged Plaintiff with violating Inmate Rules 102.10 (threats), 104.11 (violent conduct),104.12 (action detrimental to the order of the facility), 105.12 (unauthorized organization), 107.10 (interference with employee), and 107.11 (harassment).

A Tier III disciplinary hearing on the Misbehavior Report was held on June 18, 2008 ("the disciplinary hearing"), before DOCS Hearing Officer Captain Lacy ("H.O. Lacy"), following which H.O. Lacy issued his decision ("the hearing decision"), finding Plaintiff not guilty of violating Inmate Rules 102.10, 104.11, 107.10, and 107.11, but found Plaintiff guilty of 104.12 (action detrimental to the order of the facility), and 105.12 (unauthorized organization). H.O. Lacy imposed on Plaintiff a disciplinary sentence of 12 months SHU confinement, with loss of commissary, packages, and telephone privileges. Plaintiff appealed the hearing decision to DOCS Central Office Review Committee ("CORC"). On July 25, 2008, CORC dismissed the violation of Inmate Rule 105.12 (unauthorized organization), but affirmed the violation of Rule 104.12 (action detrimental to the order of the facility) based on Plaintiff's distribution of the August 14 and 15, 2007 letter to other Muslim inmates in an attempt to garner support for Plaintiff's desire to form a separate Muslim justice system within the correctional facility, and modified Plaintiff's disciplinary sentence to six months SHU ...


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