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Rossi v. Fischer

United States District Court, S.D. New York

March 31, 2014

BRIAN FISCHER, et al., Defendants.


DEBRA FREEMAN, Magistrate Judge.

Pro se plaintiff Randolph Rossi ("Plaintiff'), a New York State inmate and adherent of the Rastafari faith, filed an Amended Complaint on November 8, 2013, [1] alleging violations of his constitutional rights, pursuant to 42 U.S.C. ยง 1983, by the Commissioner and other officials of the New York State Department of Corrections and Community Supervision ("DOCCS") (collectively, "Defendants"), for allegedly denying him the right to practice his religion while incarcerated. ( See Dkt. 11.) On March 4, 2014, Plaintiff filed a motion for a preliminary injunction, seeking a number of types of relief (Dkt. 17), and that motion was referred to me by the Honorable P. Kevin Castel, U.S.D.J. for a report and recommendation ( see Dkt. 18).

After holding a conference with the parties, this Court, with the parties' consent, bifurcated Plaintiff's motion so as to address, in the first instance, the narrow question of whether Defendants should be required to permit Plaintiff to celebrate April 21 as a holy day, in accordance with his religious beliefs. After the Court received follow-up submissions and took testimony from Plaintiff on this point, Defendants proceeded to inform the Court that they would voluntarily afford Plaintiff two of the types of relief he seeks with respect to his observance of that holy day: to be excused from work or other programming on that day, and to have a special meal. Accordingly, the only remaining issue for the Court, at this time, is whether Defendants should be required to formalize April 21 as a holiday within the prison facility where Plaintiff is housed (which may, for practical purposes, require DOCCS to place the date on a centralized prison calendar), so that Plaintiff may have a communal celebration with other Rastafarian inmates.

For the reasons that follow, I find that Plaintiff has not met the stringent standard for entitlement to a mandatory preliminary injunction on this single issue of communal celebration, and thus I recommend that the Court deny the requested preliminary injunctive relief to that extent. As to the remainder of Plaintiff's requests, this Court has set an expedited discovery schedule, and will issue a supplemental report and recommendation as soon as a sufficient evidentiary record can be established.


In his motion, as filed, Plaintiff sought a preliminary injunction (1) mandating that Defendants allow him (a) to observe Rastafarian holy days on April 21, May 25, August 17, and October 7; (b) to wear a religious turban; and (c) to hold the Rastafarian community worship on Fridays instead of Wednesdays; and (2) prohibiting Defendants from (a) depositing 50% of the money raised by the Rastafarian community into the Inmate Occupational Therapy Fund; (b) mandating Plaintiff's (and the Rastafarian community's) diet on religious holy days; and (c) generally dictating Plaintiff's (and the Rastafarian community's) religious practices. ( See Dkt. 17, at 1-2.)

This Court held a conference with Plaintiff and counsel for Defendants on March 19, 2014. As noted above, the parties agreed, at that conference, to bifurcate Plaintiff's motion, so as to enable the parties and the Court to focus first on Plaintiff's desire to celebrate a claimed holy day that would be arriving quickly. The Court directed the parties to submit legal argument and evidentiary support, by March 24, 2014, on the single issue of the April 21 holy day. In particular, the Court asked Plaintiff to provide details about what his religion requires for an April 21 observance, and information regarding any previous requests he had made with respect to observing this holy day while incarcerated in the state prison system. The Court asked Defendants to provide the Court with information regarding any institutional concerns associated with recognizing the April 21 holy day, any relevant DOCCS policies, the history and current status of placing April 21 on the DOCCS religious calendar as a Rastafari holy day, the number of Rastafarian sects within DOCCS and their differences in religious practices (if relevant to any penological burden that might be posed by placing a particular holy day on the calendar), and relevant grievances filed by Plaintiff

In response to the Court's request, Plaintiff submitted a declaration under penalty of perjury (styled as an "Affidavit") ( see Supplemental Affidavit in Support of the Motion for Preliminary Injunction, dated Mar. 19, 2014 ("Pl. Suppl. Aff.") (Dkt. 20)), to supplement the affidavit Plaintiff had originally submitted ( see Affidavit in Support of the Motion for Preliminary Injunction, sworn to Mar. 4, 2014 ("Pl. Aff.") (Dkt. 17)). Defendants, however, submitted only a letter from counsel, without any accompanying affidavit or declaration, although they attached to their attorney letter a copy of a DOCCS directive with respect to religious programs and practices and a printout that appeared to list grievances filed by Plaintiff. ( See Letter to the Court from Anna M. Hehenberger, dated Mar. 24, 2014 ("Def. Ltr.") (Dkt. 19); Directive 4202, dated Jan. 18, 2008 ("Directive 4202") (Dkt. 19, at 4); List of Inmate Grievances (Dkt. 19, at 17).)

The Court held a follow-up conference with the parties on March 27, 2014, at which time the Court placed Plaintiff under oath and questioned him about his religious beliefs. ( See Transcript of Proceedings, dated Mar. 27, 2014 ("Tr.") (Dkt. 25).) The Court also permitted Defendants' counsel to pose certain questions to Plaintiff. ( See id. ) Plaintiff testified, inter alia, that April 21 is a day of celebration in which people of the Rastafari faith come together to reason, chant, and give thanks and praise for the day. ( Id at 10.) Work is not permitted on that day, and Rastafarians eat a traditional meal, which would not include meat or eggs, and which would be prepared at the celebration. ( Id at 10-12.) While Plaintiff eats fish on ordinary days, he does not eat fish (or other meat) on holy days, and he does not eat eggs. ( Id at 27-28.) Plaintiff testified that some Rastafarians may observe the requirements of the faith differently. ( Id. at 11.) Plaintiff's beliefs require him to eat, on April 21, only vegetarian food that has not been contaminated with meat (by, for example, being prepared in dishes that were used to prepare meat). ( Id at 11-12.) Kosher vegetarian food, not including eggs, would satisfy his religious dietary requirements for April 21. ( Id. at 12.)

By letter dated March 28, 2014, Defendants' counsel advised the Court that DOCCS will voluntarily exempt Plaintiff from work and provide him with a vegetarian "Kosher CAD (no-egg) meal"[2] on April 21. ( See Dkts. 22, 24.) Defendants also submitted a purported "declaration" by Cheryl Morris ("Morris"), the Director of Ministerial, Family and Volunteer Services for DOCCS, as to the reasons why April 21 has not been included on the DOCCS religious calendar. ( See Declaration of Cheryl V. Morris, undated ("Morris Decl.") (Dkt. 23).)[3]



A. Preliminary Injunction

In general, in this circuit, a party seeking a preliminary injunction must show: "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd, 598 F.3d 30, 35-38 (2d Cir. 2010) (internal citations omitted). Where, however, the moving party seeks to stay "government action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous ["serious questions"] standard and should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim." Id. at 35 n.4 (internal citations omitted). Moreover, where the moving party seeks a mandatory preliminary injunction that "alter[s] the status quo by commanding some ...

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