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Sha-Heed Rahman v. Brian Fischer; Kenneth S.

September 28, 2012

SHA-HEED RAHMAN, PLAINTIFF,
v.
BRIAN FISCHER; KENNETH S. PERLMAN; HULIHAN; K. PHILLIPS; IMAM MONTIERO; S.A. CONNELL; JOSLYN; ADAMIK; SHARROW; AND ALBERT PRACK, DEFENDANTS.



MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

In this pro se prisoner civil rights action, filed pursuant to 42 U.S.C. § 1983, Plaintiff Sha-Heed Rahman ("Plaintiff"), a Shiite*fn1 Muslim in the custody of the New York Department of Corrections ("DOCS"),*fn2 alleges that Defendants violated a settlement agreement, retaliated against Plaintiff, and conspired to punish him for pursuing his First Amendment rights to exercise his religion and access the courts. Dkt. No. 1 ("Complaint"). Currently pending before the Court is Defendants' Motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). Dkt. No. 27 ("Motion"). For the reasons that follow, Defendants' Motion is granted.*fn3

II. BACKGROUND

The following facts are taken from Plaintiff's Complaint, the attachments thereto, and documents of which the Court may take judicial notice.*fn4

Until approximately ten years ago, DOCS did not officially recognize the doctrinal differences between Shiite and Sunni Muslims. In 1998, a Shiite inmate filed a grievance asking for separate study meetings, classes, or study groups for Shiite inmates. Compl. at 122. DOCS's Central Office Review Committee ("CORC") denied the grievance, stating that "CORC has been advised by the Department's Imam that all Muslim religious groups fall under Islam, with the exception of the . . . Nation of Islam. All practice the same faith and should not be separated, as the grievant suggests." Id.

The inmate challenged CORC's determination in the state courts of New York. Id. The state trial court concluded that CORC's decision was arbitrary and capricious because of the significant differences between Sunni and Shiite historical and doctrinal beliefs and religious practices. Id.at 124-25. The court ordered the Commissioner of DOCS to permit Shiite inmates to have contact with a volunteer Shiite scholar and, if no such volunteer was available, to allow Shiite inmates to participate in a religious education class or study group. Id. at 125. The Commissioner appealed.

The New York state appellate court affirmed the decision of the lower court but modified the judgment. Cancel v. Goord, 717 N.Y.S.2d 610 (N.Y. App. Div. 2000). The appellate court agreed that in "light of the overwhelming evidence in the record that significant dogmatic differences separate the two Muslim communities . . . the denial of the grievance was arbitrary and capricious." Id. at 612. However, the appellate court stated that "religious freedom within a prison cannot be unfettered" and "must be balanced against security considerations and the State's legitimate correctional goals." Id. (citations omitted). Therefore, the appellate court modified the judgment to delete the portions of the order that "directed the manner in which [DOCS] was to permit the petitioner and his fellow adherents of the Shi'a sect of Islam to practice their faith." Id. The appellate court remitted the matter to DOCS "to conduct administrative proceedings, with Shi'a participation, to determine the manner in which best to afford Shi'a inmates separate religious services, under appropriate Shi'a leadership, in a time and place that comports with legitimate penological concerns." Id. The New York Court of Appeals denied leave to appeal. Cancel v. Goord, 96 N.Y.2d 707 (N.Y. 2001).

On August 6, 2001, DOCS issued a protocol regarding religious practices and programming for Shiite Muslim inmates. Compl. at 129, 131-33. As is pertinent here, the protocol stated that:

Shi'ite Muslim inmates shall have the same rights as all other inmate faith groups to attend Shi'ite Muslim religious education and study classes. These Shi'ite Muslim education and study classes may utilize Shi'ite Muslim inmate facilitators in the same manner and to the same extent as other religious education class programs . . . .

Shi'ite Muslim inmates shall be afforded the full and equal opportunity to participate in, without discrimination, the weekly Friday Juma service for all Muslim inmates of a particular correctional facility. Shi-ite Muslim Chaplains, whether they be employees or outside volunteers, shall be entitled to officiate at the weekly Juma services in the same manner as any other Muslim chaplain or outside volunteer Chaplains. In any facility in which Shi'ite Muslim inmates are present in the general population, the Muslim Chaplain of that facility shall ensure that the Muslim Majlis shall have at least one Shi'ite Muslim member . . . . The Department shall revise its Religious Observance Calendar . . . to include observances unique to Shi'ite Muslims, namely the observances of Ashura and the Id-ul-Ghadeer Khum.

Id. at 132-33.

In 2004, Plaintiff brought a civil rights lawsuit against DOCS officials in the Western District of New York. Rahman v. Goord, No. 04-CV-6368, 2007 WL 1299408 (W.D.N.Y. May 3, 2007). Plaintiff alleged that DOCS was violating the 2001 protocol by employing only Sunni chaplains at DOCS facilities and not allowing inmates to observe Shiite holy days. Id. at *2. Plaintiff also alleged that the protocol itself was invalid because it failed to provide for separate Shiite Jumah services and therefore violated the ruling in Cancel v. Goord. Id.

The parties engaged in settlement negotiations. Plaintiff alleges that on or about December 26, 2009, Defendant Brian Fischer, Commissioner of DOCS, offered to send Plaintiff to Mid-State Correctional Facility, where Plaintiff would be able to participate in non-religious programming and attend a Shiite Jumah service. Compl. at 9, 10. Plaintiff told his attorney that he would agree to sign the settlement agreement, so long as he was allowed to participate in specific non-religious programming. Id. at 10. Plaintiff alleges that "had DOCS stated they would transfer me from Mid-State within thirty (30) days I would not have agreed to sign the stipulation and requested to go to trial." Id. at 10-11. On January 14, 2010, Plaintiff was transferred to Mid-State. Id. at 32.

The Rahman v. Goord litigation was terminated by stipulation of settlement on January 28, 2010. Dkt. No. 27-2 at 52-59.*fn5 Under the Agreement, DOCS agreed to provide Plaintiff an alternate Shiite Jumah service. Id. ¶ 5. In order for the service to be held, "a minimum of five (5) self-identified Shiite Muslims . . . must be available and desirous of availing themselves of the alternative Shiite Jumah service." Id. ¶ 5(c). The Agreement did not discuss Shiite study classes or groups. The Agreement stated that it embodied "the entire agreement of the parties in this matter and no oral argument [sic] entered into at any time nor any written agreement entered into prior to the execution of this private settlement and its approval by the Court regarding the subject matter of the instant proceedings, shall be deemed to exist, or to bind the parties hereto, or to vary the terms and conditions contained herein." Id. ¶ 9. Under the Agreement, Plaintiff agreed not to commence any court, arbitration, or administrative action pertaining to the same facts as the Rahman v. Goord litigation. Id. ¶ 1. However, Plaintiff retained the right to enforce the settlement Agreement. Id.

Plaintiff alleges that when he arrived at Mid-State, a lieutenant told him that Defendant Superintendent Hulihan and Defendant Deputy Superintendent of Programs K. Phillips did not want to have two Muslim services. Compl. at 10, 14.

Plaintiff's request for Shiite study classes was also denied. Defendant Fischer, through Defendant Deputy Commissioner Kenneth S. Perlman, informed Plaintiff that the Rahman v. Goord settlement stated that "to have Shiite Islamic study classes there must be 5 registered Shiite Muslims." Id. at 10. Plaintiff alleges that "certainly Mr. Fis[c]her knew that Rahman v. Goord . . . does not speak about Islamic classes so he added that position to the stipulation which I did not agree to." Id. Plaintiff filed a grievance, which Defendant Phillips denied. Id.

Plaintiff also alleges that when he arrived at Mid-State, his counselor told him that he would have to wait until 2011 to begin the non-religious programming that he had requested. Id. at 12. Plaintiff alleges that Defendant Phillips told the counselor "not to enroll me in my programs because I'll be gone." Id. at 16. Plaintiff alleges that Defendant Hulihan knew that Plaintiff should have been enrolled in the non-religious programming. Id.at 14-15.

Plaintiff alleges that after he arrived at Mid-State he sent a letter to Defendant Hulihan expressing his desire to establish a Shiite Islamic class and requesting funds to purchase books. Id. at 14. Defendants Hulihan and Phillips denied the request because "they both felt that [the settlement agreement in] Rahman v. Goord . . . states you must have (5) people to have Shiite Islamic classes." Id. Plaintiff argued that the settlement agreement "speaks only of Jumah service," but Defendants Hulihan and Phillips denied the grievance "even though they knew they were wrong." Id.

Plaintiff alleges that on February 7, 2010, Defendant Fischer conspired with Defendants Phillips and Hulihan to give Plaintiff "a dirty urine test result to prevent Shiite Jumah services" and classes. Id. at 9, 12. Plaintiff alleges that "the officer taking my urine stated that I will have a positive return test and [be] sent to the box."*fn6 Id. at 14.

On the day of the urine test, Plaintiff filed a grievance complaining that his urine sample had been mislabeled. Id. at 35, 37. He alleged that the mislabeling may have been in retaliation for the Rahman v. Goord settlement. Id. The Inmate Grievance Resolution Committee ("IGRC") denied Plaintiff's grievance. Id. at 36. The IGRC stated that: the officer collecting the urine samples has gone on record and admitted to inadvertently mixing up the collection container, corrected the error and both samples tested negative. The status of grievant's lawsuit was unknown to security personnel at submission of names for random urinalysis testing. Id.

Plaintiff alleges that Defendant Imam Montiero, the Imam at Mid-State, conspired with the other Defendants to deny Plaintiff his religious rights in a variety of ways. Id. at 18. First, Plaintiff alleges that Defendant Montiero refused to establish a Shiite study class or a book locker for Shiite texts because there were not five registered Shiite Muslims at Mid-State. Id. Plaintiff informed Defendant Montiero that neither the 2001 Shiite protocol nor the settlement Agreement in Rahman v. Goord required that there be five Shiites for classes or lockers. Id. Rather -- Plaintiff informed Defendant Montiero -- the five-Shiite requirement applied only to Jumah services. Id. Second, Plaintiff alleges that Defendant Montiero tried to convince inmates not to register as Shiites. Id. Specifically, Plaintiff alleges that when Defendant Montiero, at the behest of Defendant Phillips, interviewed one inmate who wanted to self-identify as Shiite, Defendant Montiero "decided to convince [the inmate] that being Muslim is not for him . . . because [he] is white." Id. Third, Plaintiff alleges that Defendant Montiero allowed his inmate facilitator to make disparaging remarks about Shiite Muslims on the day of Jumah. Id.

On February 9, 2010, Plaintiff wrote to the Inmate Grievance Program ("IGP") complaining that he had been told that once the mess hall ran out of the alternative meal they would no longer provide it. Id. at 40. Plaintiff asked that the facility create a system that would ensure that inmates who do not eat meat or fish for religious reasons would be able to receive an alternative meal. Id.

On February 10, 2010, Plaintiff wrote to Defendant Fischer complaining about the unavailability of alternative meals. Id. at 41-42. Deputy Commissioner Gayle Haponik responded on behalf of Defendant Fischer. Id.at 50. Ms. Haponik stated that "[t]he regional coordinator spoke with the food service administrator and he has reported that they are providing an alternative when it is on the menu. If they run out of the alternative, an appropriate substitution will be made. In the future, if the main entree is tuna fish, and they run out of cheese as the alternative, an appropriate substitution will be made for the cheese." Id. at 50.

On February 10, 2010, Plaintiff wrote to the IGP complaining that Defendants Hulihan and Phillips were misapplying the 2001 protocol regarding Shiite Muslim inmates. Id. at 43-44. Plaintiff explained that Shiite classes and books needed to be provided even if there were not five Shiite Muslims in the facility. Id. at 43. He stated that other facilities provided classes and books despite having fewer than five registered Shiite Muslims. Id. Plaintiff requested a classroom with a secure book locker. Id. at 44.

On February 19, 2010, Plaintiff wrote to the IGP again requesting Shiite classes and books. Id. at 45, 47-49. The IGP denied Plaintiff's grievance. Id. at 46. The IGP stated that "educational classes for the Shi'ite Muslim faith will be determined by the number of practicing Shi'ite Muslims currently housed at the facility . . . [T]his facility has established five (5) as the number of registered Shi'ite Muslims prior to implementing educational classes." Id. at 46.

Plaintiff alleges that Defendants Perlman and Fischer prevented Plaintiff from practicing his faith "by ordering that [Plaintiff] be transferred from Mid-State Correctional Facility to Oneida Correctional Facility . . . after [Plaintiff had] gotten six inmates at Mid-State Correctional Facility to self-identify as Shia Muslims." Id. at 13, 15. Plaintiff alleges that "they had no reason to transfer me to Oneida Correctional Facility." Id. at 15. On February 22, 2010, Plaintiff was transferred to Oneida Correctional Facility. Id. at 82.

Plaintiff alleges that on or about March 2, 2010, a lieutenant at Oneida stopped him and told him not to unpack his property. Id. at 19. Plaintiff immediately spoke with Oneida's Sunni Islamic Chaplain, who assured Plaintiff that he would express Plaintiff's concerns to Defendant S.A. Connell (Oneida's Superintendent) and Defendant Deputy Superintendent of Programs Joslyn. Id.

At Oneida, Plaintiff was told by an unnamed unit officer that he could not use the bathroom sink to make absolution for prayer. Id. Plaintiff wrote a complaint to Defendant Fischer because morning prayer was at approximately 5:00 a.m., and the officer stated that Plaintiff must wait until 6:30 a.m. to wash, which would make Plaintiff miss his prayer. Id. In response, Defendant Perlman stated that "I have been informed that this matter has been resolved due to the recent time change to Daylight Savings Time, which allows you access to water for your religious obligations and coincides with facility operations at Oneida Correctional Facility." Id. at 68. Plaintiff alleges that "daylight savings time still did not allow me access to water." Id. at 19.

On March 29, 2010, Defendant Correction Officer Sharrow issued a misbehavior report charging Plaintiff with possessing an item that may be classified as a weapon or dangerous instrument and possessing an altered item. Id. at 55. The misbehavior report stated that:

On the above date & time I CO Sharrow was conducting a cube search on inmate Rahman 90A0409. I tipped his large locker over and found a metal can lid bent over underneath it. Area supervisor was then notified. Contraband was then placed in the contraband locker shelf #2. Cube search authorized by Sgt. Reynolds. Id.

Plaintiff alleges that Defendant Sharrow was not assigned to his housing unit, but had been told by Defendant Captain Adamik and a non-defendant sergeant to say that he found the can lid in Plaintiff's cell so that Plaintiff would be sent to the SHU and out of Oneida. Id. at 23. Plaintiff alleges that Defendant Sharrow issued the misbehavior report and a contraband receipt "so that th[ere] will not be a Shiite Jumah prayer service with [Plaintiff] in the box." Id. Plaintiff alleges that Defendant Sharrow's bad faith is demonstrated by the fact that the locker had been searched three other times by two different officers who never found a can lid. Id.

Defendant Adamik served as the hearing officer at the disciplinary hearing on the misbehavior report. Id. at 56 Plaintiff asserts here, as he did at the time of the hearing, that Defendant Adamik violated DOCS regulations by waiting too long after the misbehavior report to commence the hearing. Id. at 22. Plaintiff alleges that when he raised the issue at the hearing, Defendant Adamik said he could do as he pleased. Id. Defendant Adamik noted that Plaintiff liked litigating and said the delay would give Plaintiff another issue to argue. Id. Plaintiff alleges that Defendant Adamik told Plaintiff off the record that Defendant Connell did not want another group of Muslims having services in her jail and that the only way to ensure that Plaintiff would leave the jail was to have Defendant Sharrow say he found a can lid under Plaintiff's locker. Id.

At the hearing, Defendant Adamik considered Defendant Sharrow's written report, Plaintiff's testimony that the can lid was not his and that he had a medical history indicating that he would not be able to lift the locker easily, an unusual incident report, photographs of the can lid and the can lid itself, testimony by four inmate witnesses on Plaintiff's behalf, and the testimony of Defendant Sharrow. Id. at 57-58.

Defendant Adamik found Plaintiff guilty and sentenced Plaintiff to five months in the SHU, six months loss of recreation, commissary, and phone privileges, seven months loss of package privileges, and four months loss of good time credits. Id. at 56. Defendant Adamik stated that his reason for the guilty disposition was that "possession of contraband is a serious matter. The can lid was fashioned so as to be easily used as a weapon. All [inmates] are responsible for contents of their cube areas. The misbehavior report clearly indicates that the can lid was found in [Plaintiff's] assigned cube. The disposition is intended to impress upon [Plaintiff] that this behavior will not be tolerated in a correctional facility." Id. at 57.

Plaintiff appealed Defendant Adamik's decision. Id. at 60-63 Plaintiff argued that Defendant Adamik was biased and that the hearing was untimely. Id. Plaintiff further argued that Defendant Sharrow framed him in order to deny him the opportunity to practice his faith. Id. at 62-63.

Plaintiff filed a supplemental appeal on April 15, 2010. Id. at 64-66. There, Plaintiff complained that his settlement Agreement stated that he would be sent to Mid-State, enrolled in non-religious programming, and provided an alternative Shiite Jumah service but that when he got six other inmates to self-identify as Shiite Muslims "agents of DOCS tried to give [him] a dirty urine and have [him] sent to the box." Id. at 64. Plaintiff stated that when another inmate self-identified as a Shiite, the can lid was placed under Plaintiff's locker. Id. Plaintiff stated that Defendant Sharrow was not even assigned to Plaintiff's dorm when Defendant Sharrow found the can lid. Id. at 66. Plaintiff alleged that ...


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