The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all further proceedings, including the entry of final judgment. Dkt. #50.
Currently before the Court are plaintiff's motion for a preliminary injunction enjoining defendants from prohibiting plaintiff's direct purchase of Santeria ritual and spiritual waters from approved vendors (Dkt. #93), and plaintiff's motions for civil contempt of this Court's Order of Stipulated Settlement. Dkt. ## 95 & 101. For the following reasons, the motions are denied.
Plaintiff, a transexual 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 make a request to the local Chaplain in accordance with Directive 4202, paragraph G, for a minimum of two authentic Santeria religious holidays. Dkt. #83, p.11. The religious permit also 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.
The approval of vendors for ritual and spiritual waters has been problematic because of the prevalence of alcohol in many of the water mixtures, which is a security concern both because alcohol is flammable and because of concerns that inmates may ingest the water for its alcohol content. Dkt. #86, ¶ 10. DOCS eventually identified three potential vendors offering Orange Water, Holy Water, Pyamid Water, Camphor Water, Rose Water and St. Claire Water containing essential oils within distilled water rather than alcohol. Dkt. #86, ¶ 17. Plaintiff rejected these options because they "are not Santeria spiritual and ritual waters used in Santeria/Yoruba religion," noting, for example, that the Holy water is Catholic religious water. Dkt. #94, ¶ 11; Dkt. #98, ¶ 18.
Plaintiff declares that she has provided defendants multiple copies of catalogs identifying Santeria ritual and spiritual waters which do not contain alcohol, including the Original Products Company in Bronx, New York. Dkt. #94, ¶ ¶ 2-3. Plaintiff further declares that although this vendor provided letters listing ingredients, DOCS forced her to return five spiritual waters and four ritual waters received from Original Products without even testing the waters as contemplated in the religious permit issued to plaintiff. Dkt. #94, ¶¶ 5-6. Similarly, plaintiff declares that she was forced to return four containers of ritual waters ordered from Azure Green, Inc. Dkt. #94, ¶ 7. In addition to Original Products and Azure Green, Inc., plaintiff identifies Wisdom Products and Church Goods as sources of ritual and spiritual waters for practitioners of Santeria. Dkt. #94, ¶ 14.
DOCS declares that upon receipt of the waters plaintiff ordered from Azure Green, Inc., a Senior Attorney with Counsel's Office at DOCS contacted Azure Green, Inc., and received a return letter by fax stating that all of their waters and washes, with the exception of the Holy Water and Pyramid Water, contain alcohol. Dkt. #98, ¶ ¶ 21-22 & p.43. DOCS declares that it has sought information about ingredients for waters from Church Goods, aka The Luck Shop, as well as another vendor, Divinafe, aka, Inesca Imports, but received no response. Dkt. #98, ¶ ¶ 23-24.
DOCS declares that it has approved Original Products as a vendor for Lake Water, Rain Water, River Water and Sea Water, ordered these products and offered them to plaintiff for sale at the cost of the waters and price of shipping, but plaintiff refused to purchase them unless she was permitted to place the order with the vendor directly. Dkt. #98, ¶ ¶ 26 & 39. DOCS further declares that it has approved Wisdom Products, aka Indio Products, as a vendor for Ven A Mi (Come to Me), Reversible, San Antonio (St. Anthony), spiritual waters, as well as fourteen different types of bath and floor washes, so long as the ingredient labels accompanying the waters do not indicate alcohol as an ingredient. Dkt. #98, ¶ ¶ 29-31, 34 & 39.
DOCS declares that it is requiring plaintiff to order the waters through the facility chaplain because "Santeria vendors could not furnish products in commercially sealed containers, with labels, as the parties had anticipated when the religious permit was issued." Dkt. #98, ¶ 3 & pp.52 & 61. Plaintiff states that DOCS was aware that the waters were not commercially sealed prior to execution of the settlement. Dkt. #99, ¶ 8.
DOCS further declares that it wants to order the waters directly for both security reasons and for administrative reasons. If the Department orders the waters and takes delivery and receipt of the waters, then the Department can set up ordering and distribution of the waters for any other Santeria or Yoruba inmates who seek the same items. . . . If the Department orders the waters, then there would be ...