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Tyheem Keesh; Jesus Jova v. Joseph T. Smith

March 25, 2011

TYHEEM KEESH; JESUS JOVA, PLAINTIFFS,
v.
JOSEPH T. SMITH, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY; EVAN GORELICK, DEPUTY SUPERINTENDENT OF PROGRAMS, SHAWANGUNK CORRECTIONAL FACILITY; GLENN S. GOORD, COMMISSIONER, NEW YORK STATE DEPT. OF CORRECTIONAL SERVICES; JOHN H. NUTTALL; MARK LEONARD; GEORGE PATAKI, N
DEFENDANTS.



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

MEMORANDUM-DECISION AND ORDER

BACKGROUND

Plaintiffs, inmates in the custody of New York State Department of Correctional Services ("DOCS"), bring this pro se action stemming from their practice of a religion called Tulukeesh. The Tulukeesh Holy Book, "Holy Blackness," recognizes plaintiff Tyheem Keesh as the savior and requires adherence to a number of religious practices. In their amended complaint (Dkt. No. 26), plaintiffs claim that defendants interfered with the practice of their religion and violated their rights under the United States Constitution and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc, et seq. On September 25, 2007, by Memorandum-Decision and Order (Dkt. No. 126) and Judgment (Dkt. No. 127), this Court granted defendants' motion for summary judgment, denied plaintiffs' motion for summary judgment, and dismissed the action.

On September 28, 2009, the Second Circuit affirmed the judgment with respect to all claims except plaintiffs' claims under RLUIPA. Jovav. Smith, 346 Fed.Appx. 741 (2d Cir. 2009). In a separate decision, the Second Circuit addressed the RLUIPA claims. It reversed and remanded with respect to plaintiffs' RLUIPA claim regarding their Tulukeesh dietary requests, and affirmed with respect to all other claims. Jova v. Smith, 582 F.3d 410 (2d Cir. 2009).

Thereafter, this Court gave the parties leave to file renewed motions for summary judgment solely addressing plaintiffs' RLUIPA claim regarding their dietary requests. Plaintiffs (Dkt. No. 167) and defendants (Dkt. No. 168) have moved for summary judgment. Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge Andrew T. Baxter has issued a thorough Report and Recommendation (Dkt. No. 195) recommending that this Court deny plaintiffs' summary judgment motion, grant defendants' summary judgment motion, and dismiss the action. Plaintiffs object (Dkt. No. 198). In view of plaintiff's objections, pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of the issue on remand, i.e., "whether there is a less restrictive substitute (including, but not limited to, an entirely vegetarian diet) for the current religious alternative menu." As set forth below, on de novo review, this Court accepts Magistrate Judge Baxter's excellent Report and Recommendation and denies plaintiffs' summary judgment motion, grants defendants' summary judgment motion, and dismisses the action.

Also before the Court is plaintiffs' motion (Dkt. No. 193) to vacate the decision and judgment (Dkt. Nos. 125, 126) which denied their first summary judgment motion and granted defendants' first summary judgment motion. As set forth below, this motion is denied.

PLAINTIFFS' MOTION TO VACATE

Plaintiffs move (Dkt. No. 193) to vacate this Court's September 25, 2007 decision and judgment (Dkt. Nos. 125, 126) denying their first summary judgment motion and granting defendants' first summary judgment motion. As noted, except for the dietary issue under RLUIPA, all aspects of the challenged decision and judgment have been affirmed by the Second Circuit. See Jova v. Smith, 582 F.3d at 416-17; 346 Fed.Appx. at 743-44. Accordingly, this Court cannot take further action with respect to any aspect of the decision and judgment except the dietary claim under RLUIPA. In any event, plaintiffs' papers raise no issue that would warrant vacatur. Plaintiffs' motion (Dkt. No. 193) is denied.

PLAINTIFFS' DIETARY CLAIM UNDER RLUIPA

In pertinent part, RLUIPA provides:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person --

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. ยง 2000cc-1(a). The Second Circuit explains RLUIPA as follows: As a general matter, the RLUIPA imposes duties on prison officials that exceed those imposed by the First Amendment. RLUIPA protects inmates by providing that a government shall not impose a substantial burden on the religious exercise of inmates in certain institutions unless the government shows that the burden furthers a compelling governmental interest by the least restrictive means. Where plaintiff adduces evidence sufficient to show that the government practice substantially burdens her religious exercise, the onus shifts to the government to ...


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