MUHAMMAD v. CITY OF NEW YORK DEPT. OF CORRECTIONS No. 91 Civ. 6333 (LAP).
904 F.Supp. 161 (1995)
Abdul-Shahid Farrakhan MUHAMMAD, Darrell X. McKinney, Victor Santos, Curtis McDowell, Uriah Webb, Horace Betard, Lashango LeGrand, and Kenneth Hammonds, Plaintiffs, v. CITY OF NEW YORK DEPARTMENT OF CORRECTIONS, Anthony Schembri, Commissioner, City of New York Department of Correction; Allyn R. Sielaff, former Commissioner, City of New York Department of Correction; and Catherine M. Abate, former Commissioner, City of New York Department of Correction, Defendants.
United States District Court, S.D. New York.
October 17, 1995.
Gibson, Dunn & Crutcher by Mitchell A. Karlan, Mary P. Donlevy, Robin L. Baker, Colleen D. Duffy, Robert E. Malchman, W. James Hall, New York City, for Plaintiffs.
Paul A. Crotty, Corporation Counsel for the City of New York by Martha A. Calhoun, Chlarens Orsland, New York City, for Defendants.
TABLE OF CONTENTS
PROCEDURAL BACKGROUND ............................................................ 165
FINDINGS OF FACT ................................................................. 167
I. The Nation of Islam ........................................................ 167
II. Plaintiff Muhammad's Allegations ........................................... 170
III. Testimony of Imam Askia Muhammad ........................................... 171
IV. DOC Religious Accommodation Policy ......................................... 173
V. The Testimony of Imam Luqman ............................................... 173
VI. NOI Volunteers in DOC Facilities: The Testimony of Antonio McCloud ......... 176
VII. Testimony of Robert Daly and Robert Wangenstein Concerning DOC's Operations
and Allocation of Resources ................................................ 177
A. Overview of the relevant DOC Operations ................................. 177
B. The Rationale of Generic Services ....................................... 180
C. Operations at the Brooklyn House of Detention ........................... 181
D. Analogous Procedures on Rikers Island ................................... 182
E. Evidence Concerning the Number of NOI Inmates ........................... 183
F. Federal Bureau of Prisons' Religious Accommodations ..................... 186
CONCLUSIONS OF LAW ............................................................... 187
I. The Religious Freedom Restoration Act ....................................... 187
A. Substantial Burden ....................................................... 189
1. Ministers ............................................................. 189
2. Congregate Services ................................................... 190
3. Literature ............................................................ 192
4. Holidays .............................................................. 192
5. Other ................................................................. 192
B. Compelling Interest and Least Restrictive Means .......................... 193
II. First Amendment Claims ...................................................... 195
A. Free Exercise ............................................................ 195
B. Establishment Clause ..................................................... 197
III. Equal Protection ............................................................ 199
IV. New York Law ................................................................ 199
A. State law ................................................................ 199
B. City Regulations ......................................................... 201
V. Qualified Immunity .......................................................... 201
CONCLUSION ....................................................................... 203
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PRESKA, District Judge:
Plaintiff Abdul-Shahid Farrakhan Muhammad ("Muhammad") seeks (i) a declaratory judgment that defendants have unlawfully deprived him of his rights under the federal and state law to practice his religion, that of the Nation of Islam ("NOI"); (ii) a permanent injunction requiring the City of New York Department of Correction ("DOC") to take a variety of actions concerning the exercise of his religion in DOC facilities; (iii) compensatory damages; and (iv) costs and attorneys' fees. For the reasons stated below which largely relate to the unique characteristics of the DOC system, I find that plaintiff is not entitled to the relief he seeks.
PROCEDURAL BACKGROUND
Plaintiff Muhammad commenced a pro se action, pursuant to 42 U.S.C. § 1983, alleging that DOC staff prevented him from freely exercising his religion as a member of the NOI. On or about June 17, 1993, I appointed Gibson, Dunn & Crutcher to represent
(Second Am.Compl. at 17.) Plaintiffs also sought compensatory damages, attorneys' fees and certification of a class of followers of NOI who are or will be incarcerated in the City and State correctional systems.
In response to plaintiffs' application to move to certify a class, the State and City defendants stipulated that any injunctive relief awarded to the individual plaintiffs would be implemented on a system-wide basis, thus obviating the need to litigate the class certification issue.
On or about July 25, 1994, the City and State defendants filed a motion to dismiss the RFRA claims on the ground that RFRA is unconstitutional. The State defendants, but not the City defendants, subsequently withdrew their constitutional challenge. The City defendants' motion is still pending before the Court.
On November 8, 1994, the parties entered into a stipulation permitting six additional plaintiffs to intervene in the action.
A bench trial was conducted on December 8, 9, 12 and 13, 1994, and January 17, 18 and 30, 1995. Numerous witnesses testified, including the plaintiffs, all of whom are NOI followers; Robert Green, an NOI minister known as "Minister 9X"; four orthodox Muslim imams,
FINDINGS OF FACT
I. The Nation of Islam
There are dozens of Islamic sects, each sharing certain fundamental tenets, but also having distinctive beliefs, practices and spiritual leaders. (Tr. 97-101, 555-57.) The prophet Muhammad is said to have predicted that there would ultimately be seventy-two Muslim sects. (Tr. 556.) Imam Umar testified that he could currently name twenty to twenty-six such Muslim sects, and Professor Lincoln testified to fourteen splinter groups that came out of the NOI alone. (Tr. 49-50, 101, 557.)
Turning to the NOI in particular, the NOI was founded in 1930 by Fard Muhammad, also known as W.D. Farad or Fard. After Fard's unexplained disappearance in 1934, his assistant, Elijah Muhammad, assumed leadership of the movement until his death in 1975. (Pl.Ex. 55 at 12, 15-16, 267.) According to Professor Lincoln, NOI leaders developed a theology aimed specifically at addressing the unique situation and need of African-Americans, including perceived needs for dignity, economic security and security from the police. (Tr. 41-42, 53.) Only African-Americans were permitted to join the NOI and to attend NOI services.
After Elijah Muhammad's death in 1975, his son, Wallace Deen Muhammad, also called Warith Deen, was designated to succeed his father as the leader of the NOI. (Tr. 47; Pl.Ex. 55 at 263-64.) Over the next decade, Wallace Deen Muhammad led the NOI into orthodox Islam. (Tr. 49; Pl.Ex. 55 at 264-65.) However, some NOI followers dropped out of the movement, while others formed splinter groups. (Tr. 49-50; Pl.Ex. 55 at 267.) Professor Lincoln testified that fourteen such groups were formed after Elijah Muhammad's death. (Tr. 49-50, 101.) In 1977, Louis Farrakhan left Wallace Deen Muhammad's community and resurrected the original NOI as it had been under Elijah Muhammad. (Tr. 50-51; Pl.Ex. 55 at 268.) NOI currently has members throughout the country, and its principal mosque is head-quartered in Chicago. There are several mosques in the New York City metropolitan area. (Tr. 850; Pl.Ex. 55 at 267.)
All NOI members are of African descent. (Tr. 218; Pl.Ex. 55 at 20.) Most NOI followers convert during adulthood to NOI from the faith, often Christianity, followed in their childhood homes. (Pl.Ex. 55 at 25-26.) Many of the men who convert to NOI, including some of the plaintiffs, do so while incarcerated. (Tr. 74, 148, 255, 847, 849.) One reason why the prisons are a rich source of recruits for the NOI is that prisoners are among the most disaffected members of society. (Tr. 74-75.) There is frequently a racial component to this disaffection; that is, some black prisoners feel that they are the victims of a world controlled by whites. (Tr. 75.) In addition, prisoners also have considerable amounts of time to reflect on their lives. (Tr. 75.) Because many of the men
While members of the NOI have some distinctive beliefs and practices not shared by other Muslim groups, followers of the NOI and orthodox Muslims
Unlike orthodox Muslims, NOI members believe that Allah came to the United States in 1930 in the person of Fard. (Tr. 32-33, 527, 688-89; Pl.Ex. 1 at 27-28, 145-46, Pl.Ex. 6 at 14.) They also believe that Fard is the great Mahdi, who is, according to Islamic tradition, the greatest teacher who comes at the end of time. (Tr. 32, 34, 52-53.) Also, unlike orthodox Muslims, NOI members believe that Elijah Muhammad is the "messenger of God." (Tr. 33, 53.) NOI followers do not recognize "imams" as religious leaders; NOI clergymen are referred to as "ministers." (Tr. 151-52, 887.) Members of the NOI do not believe in life after death. (Pl. Ex. 1 at 31-32; Pl.Ex. 6 at 14.)
NOI followers also have a distinctive creation story. They believe that trillions of years ago, a great explosion separated the earth and the moon. Once the earth cooled, there was Allah, who was black, and a world populated only by black people. However, the devil, "Yakub," along with twenty-four mad scientists, conducted a series of genetic experiments on the Island of Patmos. Over time, they produced non-black genes from which the different races resulted — brown, red, yellow and white — each progressively less pure and less black. (Tr. 39-40; Pl.Ex. 1 at 28, Pl.Ex. 55 at 71-73.) Professor Lincoln has called this belief "the central myth of the Black Muslim movement." (Pl.Ex. 55 at 72.) Followers of the NOI believe that all blacks are divine and thus have a special relationship with Allah; they believe whites are ungodly and devils by nature. (Tr. 556; Pl.Ex. 55 at 63, 69-72, 104.) Followers of the NOI also believe that black people in America are part of the "lost and found nation." (Pl.Ex. 1 at 28; Pl.Ex. 55 at 71.)
Like all Muslims, members of the NOI follow the Holy Quran. (Tr. 23-24, 554; Pl. Ex. 55 at 118.) However, according to Professor Lincoln, the writings that are "critical" to NOI believers are those of their leaders, i.e., Elijah Muhammad and Louis Farrakhan. (Tr. 24, 76-77, 92.) The Final Call newspaper, the book Message to the Black Man in America by Elijah Muhammad and various study guides and lessons are among the publications read by followers of the NOI. (Tr. 77-78, 228-30, Pl.Ex. 55 at 124-29, 269.)
NOI members, like other Muslims, observe Ramadan. (Tr. 563-64.) NOI members also celebrate several holidays not observed by other Muslim sects. Among them are Savior's Day on February 26 (to honor Fard), Founder's Day on October 7 (to honor Elijah Muhammad) and a daylight fast similar to Ramadan during the month of December. (Tr. 33-35.) The December Fast was instituted in opposition to the Christmas holiday and to focus the attention of followers away from what Elijah Muhammad believed to be the temptations during December of irreligious excesses — in particular, Santa Claus, commercialization of the holiday and celebratory overeating. (Tr. 35-36.)
Followers of the NOI typically attend congregational meetings, including a religious service that is commonly held on Sundays; in addition, NOI temples hold frequent meetings,
Followers of the NOI follow a variety of restrictions in their day-to-day lives. For example, they are not to eat pork or cornbread, gamble, smoke, drink liquor, use drugs, overeat or buy on credit. They are taught to be clean-shaven and do not wear beards or moustaches. (Tr. 36, 150-51; Pl. Ex. 55 at 18, 76-77.) They are supposed to pray five times a day facing east. (Tr. 151.) They believe premarital and extramarital sex is immoral. (Tr. 36; Pl.Ex. 55 at 76.)
The evidence offered at trial concerning whether the NOI should be considered a "Muslim" religion and by whom it is so considered was varied. For example, certain of Professor Lincoln's writings suggest the NOI is a sect of Islam:
(Pl.Ex. 55 at 220.) On the other hand, Professor Lincoln also has written that:
(Pl.Ex. 55 at 220.) According to Professor Lincoln, two NOI doctrines are "at the heart of the controversy: their insistence that blacks must separate themselves from the abhorrent and doomed white race and their belief that it is the manifest destiny of the Black Nation to inherit the earth." (Pl.Ex. 55 at 221.) Professor Lincoln, nothing "the orthodox Moslem ideal of an all-embracing unity of humankind", has questioned whether these two doctrinal differences are "so extreme that the Black Muslims must be said to have excluded themselves from Islam." (Pl.Ex. 55 at 221.) Professor Lincoln's conclusion was that the NOI appears to be a Muslim sect:
(Pl.Ex. 55 at 221.) Similarly, at trial, there was other evidence and testimony indicating that some orthodox Muslims might not consider followers of the NOI to be "Muslims" (e.g., Tr. 88, 157, 191, 473, 482, 546-47; Pl. Ex. 15), but there also was testimony indicating
(Pl.Ex. 60.) Imam Umar's article focuses on differences between the tenets of the NOI and mainstream Muslims, in particular the NOI's beliefs already described that the black man is God and the white man is the devil. (Pl.Ex. 60.)
II. Plaintiff Muhammad's Allegations
Plaintiff Muhammad joined the NOI in the mid-1980's, prior to his incarceration. (Tr. 287.) From 1989 to 1991, Muhammad was incarcerated in the Bronx House of Detention for Men and various jails on Rikers Island while awaiting trial. (Tr. 286.) Following his conviction, he was transferred to the custody of DOCS until his parole in January 1994. (Tr. 287.) Muhammad is currently a ministerial representative under the auspices of Minister Conrad Muhammad of Mosque No. 7 in Harlem, New York. (Tr. 289.)
While on Rikers Island, Muhammad maintained a cordial relationship with Imam Luqman, currently the DOC Director of Ministerial Services, and, at least initially, with most of the individual DOC Muslim chaplains, many of whom he knew personally prior to his incarceration. (Tr. 414-15.)
While on Rikers Island, Muhammad was permitted to wear attire that identified him as an NOI member, specifically, a suit, white shirt, bow tie and crescent pin.
Muhammad explained his role as a member of the NOI to educate prospective followers. He testified that:
(Tr. 416-17.) In fact, Muhammad testified that he provided ample bait to the fish, recalling that he "fed" approximately ninety-five young black men at three Rikers Island facilities alone. (Tr. 417-18.) Muhammad did not receive an infraction from DOC staff for proselytizing. (Tr. 416.)
While at Rikers Island, Muhammad studied to become a ministerial representative. In the course of his studies, many "courtesies" were extended to him by DOC officers and officials, some of whom were themselves NOI members. (Tr. 419-20.) These officers,
Although he was an NOI member, Muhammad never requested an opportunity to observe the December Fast while incarcerated in DOC facilities because, at that time, he had not acquired sufficient knowledge of its significance to his faith. (Tr. 320.) Muhammad attended the regular Friday service for Muslims and Muslim classes. (Tr. 670.) Although Muhammad testified to a dispute between him and some Muslim inmates who once barred his access to Jumu'ah service, he does not allege that DOC personnel prevented him from attending the Muslim service. (Tr. 425-27.) He believes Imam Askia Muhammad, a DOC Muslim chaplain, played some role in this incident. (Tr. 427.)
III. Testimony of Imam Askia Muhammad
Imam Askia Muhammad ("Imam Askia") has been a chaplain for DOC for the past four and a half years. (Tr. 668.) He is currently assigned to the Queens House of Detention and the James A. Thomas Center ("JATC"), a correctional facility on Rikers Island. (Tr. 669.) At the Queens House of Detention, which houses some 500 inmates, approximately thirty inmates identify themselves as Muslim. At JATC, which houses some 1200 inmates, approximately 150 identify themselves as Muslim. (Tr. 669.) Imam Askia is currently unaware of any inmates, in either of these facilities, who identify themselves as members of the NOI (Tr. 669.) During the four and a half years Imam Askia has been a DOC facility chaplain, he can recall only three inmates who were members of the Nation of Islam. (Tr. 677.)
Imam Askia was previously assigned to the George R. Vierno Center ("GRVC") on Rikers Island, where he knew one inmate who identified himself as a member of the NOI — plaintiff Muhammad. (Tr. 669.) Imam Askia and plaintiff had a friendly relationship. (Tr. 671.) Plaintiff regularly attended Imam Askia's Muslim classes which were typically held three times a week, as well as the weekly congregate prayer services. (Tr. 670.) In addition, Imam Askia and plaintiff had frequent private conversations in the Imam's office, in the mosque and in the hall. (Tr. 670.) They discussed a variety of topics, including conditions in the facility, food and religious matters. (Tr. 670-71.)
While DOC does not officially recognize the position of "Muslim inmate representative," it is the practice of Imam Askia to elect or select an inmate representative to assist him in order to create a sense of community among the Muslim inmates and to teach the inmates to accept leadership from one of their own. (Tr. 671-72.) Where Imam Askia believes that the inmates are mature and knowledgeable about the principles of Islam, he presides over a process in which the inmates elect their own representative. (Tr. 672-73.) Imam Askia always supervises the process to ensure that it is conducted in a peaceful and fair manner and does not compromise the security of the facility. (Tr. 673.) While plaintiff was incarcerated at GRVC, he was selected Muslim inmate representative in an election conducted without the knowledge, consent or supervision of Imam Askia. (Tr. 673.) Imam Askia and plaintiff subsequently discussed the election, and Imam Askia explained that he was troubled because the process had taken place in his absence. (Tr. 674.) Imam Askia also explained that he did not believe that plaintiff possessed the requisite qualities for inmate
There was differing testimony concerning whether the discussion concerning plaintiff's suitability to serve as the Muslim inmate representative touched on plaintiff's beliefs as a member of the NOI. (Tr. 674.) Plaintiff testified that Imam Askia asked him to repudiate his beliefs, became hostile and used derogatory language. (Tr. 317-18.) However, based on the testimony and demeanor of the witnesses, I find the testimony of Imam Askia to be credible. Imam Askia testified that he did not ask plaintiff to abandon his beliefs as a member of the NOI. (Tr. 674.) I also find that Imam Askia did not raise his voice, jump out of his chair or use profanity in his discussion, as alleged by plaintiff. (Tr. 677-78.) Imam Askia noted that plaintiff was visibly disappointed that Imam Askia did not choose him as inmate representative. (Tr. 676.)
Contrary to plaintiff's suggestions, I find that Imam Askia was not hostile or suspicious of the NOI. For most of his early life, Imam Askia was a member of the NOI. (Tr. 675.) When he was sixteen years old, his parents followed Imam W.D. Muhammad, the son of Elijah Muhammad, in a transition made by a large number of members of the NOI to what is commonly called orthodox Islam. (Tr. 675.) Imam Askia made this transition with his parents. (Tr. 675.)
Imam Askia frequently discusses his background and experiences with inmates as a way of encouraging them to get out of jail and to improve their lives. (Tr. 675-76.) In particular, he has discussed his experiences in the NOI with the plaintiff. (Tr. 675.) These discussions with the plaintiff focused on the benefits Imam Askia felt he had received from his upbringing in the NOI, such as discipline and a sense of responsibility. (Tr. 676.)
After he was told that he would not be chosen to serve as Muslim inmate representative, plaintiff made a request to Imam Askia for separate Muslim services. (Tr. 678, 679, 681.) Imam Askia responded to his request by asking why, if plaintiff considered himself a Muslim, he wanted separate Muslim services and what specific needs were not being met by the Muslim services already provided. (Tr. 679.) Plaintiff expressed his desire that certain topics — specifically, African-American self-reliance and African-American problems — be discussed more directly and forcefully. (Tr. 679.) Imam Askia recalled telling plaintiff that he believed these topics were already being addressed but could incorporate them to a greater degree into the classes already being offered. (Tr. 679-80.) Plaintiff apparently did not follow up on this response. (Tr. 682.)
Plaintiff testified that he was prevented from attending congregate services by a group of inmates assigned to ensure the security of the facility Mosque. (Tr. 319.) However, I find the testimony of Imam Askia to be credible. First, Imam Askia testified that plaintiff attended his Muslim services "regularly." (Tr. 670.) Second, Imam Askia testified that, just as there is a correction officer present to provide security for every inmate group activity, correction officers, and only corrections officers, are assigned to provide security for all religious services, such as Jumu'ah prayer or classes. (Tr. 677.) Imam Askia also testified that inmates do not have the authority to prevent another inmate from attending religious services. (Tr. 677.) If an inmate, for whatever reason, would have to be excluded from religious services, it would be the responsibility of the chaplain, not the inmates, to deal with the matter. (Tr. 678.) In his four and a half years as a facility chaplain, Imam Askia has never prevented any inmate from attending religious services, including the plaintiff. (Tr. 678.) Imam Askia never "directed" that plaintiff be prevented from attending services. (Tr. 678.)
Contrary to plaintiff's allegation, Imam Askia does not find NOI beliefs to be offensive. (Tr. 680.) Imam Askia is well acquainted with Minister Louis Farrakhan and agrees with many of his teachings. (Tr. 687-88.) In addition, as a chaplain in a jail, Imam Askia expects to encounter inmates with
IV. DOC Religious Accommodation Policy
The DOC religious accommodation policy is set forth in Directive 3252, "Congregate Religious Services." (Pl.Ex. 30.) This directive is based on section 8 of the New York City Board of Correction Minimum Standards (Pl.Ex. 58), as well as underlying federal consent decrees. (Tr. 744-46, 752.) Among its provisions, Directive 3252 provides as follows:
(Pl.Ex. 30 at III.B.)
(Pl.Ex. 30 at III.C.)
(Pl.Ex. 30 at III.D.) In addition, Directive 3252 permits inmates to celebrate recognized religious holidays on an individual or congregate basis, observe dietary laws and to wear and possess religious articles and clothing. (Pl.Ex. 30 at III.G-H.) All persons, including inmates, are forbidden to proselytize, to compel an inmate to become part of a religious organization or to dissuade an inmate from exercising his religious beliefs. (Pl.Ex. 30 at III.E.) Under Board of Correction Minimum Standards, members of the NOI are entitled to receive, without restriction, publications from any source, including family, friends and publishers. (Pl.Ex. 58, Title 40, § 1-14(a).) Incoming publications may not be censored or delayed unless they contain specific instructions on the manufacture or use of dangerous weapons or explosives or plans for escape. (Pl.Ex. 58, Title 40, § 114(c)(3).)
V. The Testimony of Imam Luqman
Imam Abdush Shahid Luqman ("Imam Luqman"), the DOC Director of Ministerial Services, testified about the DOC religious accommodation policies and about his personal relationship with the plaintiff. As Director of Ministerial Services, Imam Luqman is responsible for the supervision and administration of the DOC religious programs. (Tr. 691-92; Pl.Ex. 31 at 1.) Prior to assuming his current position, Imam Luqman worked as a DOC chaplain in various correctional facilities and as a religious volunteer for fifteen years. (Tr. 692-93.)
DOC currently employs forty-four salaried chaplains, eleven of whom are Muslim.
Chaplains are hired after their credentials have been screened by various ecclesiastical organizations, including the Board of Rabbis (for Jewish rabbis), the Archdiocese of Brooklyn (for Catholic clergy), the Council of Churches for the City of New York (for Protestant ministers) and the World Community of Islam (for Muslim imams). (Tr. 695; Pl.Ex. 31 at 1.) After their credentials have been confirmed by the ecclesiastical organizations, Imam Luqman and his staff interview candidates to determine their suitability for working in a jail setting. (Tr. 695-96.) DOC interviews any candidates sent to it, and would consider for employment an NOI candidate should one be approved by the ecclesiastical organization. (Tr. 697.)
Imam Luqman testified on cross-examination that a Protestant chaplain would provide services to all Protestants, even if the chaplain
DOC also utilizes the services of approximately 750-800 volunteers, seventy-five percent of whom are religious volunteers.
DOC provides generic congregate religious services for the four major faith groups, i.e., Catholic, Jewish, Protestant and Muslim. (Tr. 699-700.) The purpose of generic services is twofold: (i) to reach effectively as many inmates as possible, in light of their large number and rapid turnover and (ii) to be tolerant and thus avoid offending members of other faiths, who may have somewhat different practices or nuances to their own form of worship. (Tr. 699-700.) Thus, for example, a generic Protestant service attempts to reflect the basic practices and beliefs of all Protestants, so that Episcopalian or Pentecostal inmates will be able to derive some benefit and solace from the generic service. (Tr. 699-700.)
In a typical generic Muslim service, a facility imam performs the ceremony, known as the "khutbah." (Tr. 700-01.) In the course of the khutbah, the imam may utilize the services of an outside religious volunteer or a member of the inmate population. (Tr. 701.) At the larger jails on Rikers Island, approximately 100-300 inmates may attend a Muslim service, with a lesser number attending at the borough correctional facilities. (Tr. 701-02.) The inmates who have attended these generic services have been members of various Muslim sects including the NOI, Sunni, Shiite, Ansarullah and Sikh. (Tr. 701.)
DOC also provides Quranic, Bible and Torah study classes. (Tr. 702-03.) In the Quranic class, a facility imam or a qualified inmate teaches the Quran to both new converts to Islam and more advanced students. (Tr. 703.) Recent converts learn the fundamentals of Islam, known as "mubadi," while advanced students study the Quran in more depth, as well as study Arabic. (Tr. 703) Attendance varies from five to seventy-five inmates, depending on the size of the facility and the season. (Tr. 703-04.)
Inmates may also meet with individual spiritual advisors of their choice in a "clergy/counsel visit." (Tr. 704.) At an inmate's request, the facility chaplain contacts the spiritual leader of a particular congregation or parish and arranges the necessary security clearances for the chosen spiritual advisor. (Tr. 704-05.) Also, clergy/counsel visits frequently are initiated in the first instance by spiritual advisors rather than by inmates. (Tr. 704-05.) These individual counsel visits are frequently utilized by inmates, and the number of visits is unlimited. (Tr. 705.) They are designed to accommodate specific or individual needs that cannot be provided on a group basis. (Tr. 714-17.)
Muslim inmates receive Halal meals while in DOC custody. (Tr. 705.) Upon their initial entry into the DOC system, they may register as members of the Muslim faith,
DOC recognizes various religious holidays, including Ramadan. (Tr. 640, 705.) At the
DOC maintains a procedure that allows inmates to request religious accommodations. (Pl.Ex. 30;
Imam Luqman also testified about his encounters with plaintiff Muhammad. Imam Luqman's relationship with plaintiff was a cordial one, both before and after plaintiff's conversion to the NOI. (Tr. 712-13.) Originally a Sunni Muslim, plaintiff attended several congregate Muslim services conducted by Imam Luqman and sought individual counselling from the Imam on several occasions. (Tr. 712-13.) Following his conversion to the NOI, plaintiff attended a religious ceremony conducted by Imam Luqman at the GRVC on Rikers Island. (Tr. 713.)
In the course of his twenty-year career with DOC, Imam Luqman has made the acquaintance of perhaps ten inmates who identified themselves as NOI members. (Tr. 713-14.) Plaintiff was the only member of that group who made particular requests for a religious accommodation, albeit in an indirect manner. (Tr. 714-15). Although Imam Luqman understood plaintiff to have requested a collective December Fast (Tr. 714-15), he is apparently mistaken, as plaintiff himself testified that he never made such a request. (Cf. Tr. 320.) Imam Luqman may have construed the complaint or amended complaints in this action to constitute the purported "request" — as well as a purported request for an NOI minister to teach a class, which plaintiff himself did not testify he requested.
As an example of DOC's willingness to accommodate individual religious requests, Imam Luqman noted that one of DOC's current inmates is a well-known Lubavitch rabbi
According to Imam Luqman, the distinction between the request of the Chinese Buddhists (which was granted) and what Imam Luqman understood plaintiff to be seeking, was twofold: (i) there was no underlying generic congregate service available for Buddhist inmates in the first instance, as opposed to an NOI inmate, who can derive at least some benefit and solace from a generic Muslim service and (ii) plaintiff was an individual whom Imam Luqman believed was acting on his own behalf in seeking apparently collective accommodations — as opposed to representing an actual group — and honoring the request thus would be an imposition of religious services on a group of inmates without their consent. (Tr. 716-17.)
Plaintiff alleged that he was denied a position as an inmate representative by a facility chaplain at GRVC, Imam Askia. (See Second Am. Compl. ¶¶ 40-42.) According to Imam Luqman, a facility chaplain may exercise his discretion and allow an inmate to assist him in the conducting of services. (Tr. 717-18.) A person who assists a Muslim chaplain (or assists a sheykh in a Muslim mosque) is known as a "naib." (Tr. 718.) The manner in which the person is chosen is determined by the individual chaplain, and the selection is within the chaplain's discretion. (Tr. 718-19.)
VI. NOI Volunteers in DOC Facilities: The Testimony of Antonio McCloud
Antonio McCloud ("McCloud") has been Director of Volunteer Services of DOC since 1992. (Tr. 801.) As such, he acts as a liaison between DOC and the civilian community, soliciting volunteers to provide a variety of services to inmates in DOC facilities. (Tr. 804.) The mission of the volunteer program is to solicit and use community volunteers to assist in providing inmate services and to help inmates make the transition back to the community. (Tr. 804.)
Volunteers provide a number of important services, including counseling, literacy assistance, law library assistance, general library assistance, drug and alcohol counseling, self-development and empowerment workshops, job readiness training, AIDS education, case management and, in the nursery at the women's facility, child care aid. (Tr. 805.)
Although there was no testimony that McCloud was himself an NOI member, it is undoubtedly fair to say that McCloud has been involved in a number of NOI activities. For example, he has visited NOI mosques in Harlem and New Jersey approximately four times a year for the past fifteen years. (Tr. 811.) In addition, McCloud has participated in self-development training conducted by NOI's paramilitary arm, the Fruit of Islam ("FOI"), prior to his employment with DOC. (Tr. 812.)
NOI volunteers serve the DOC inmate population in two capacities, i.e., as guest speakers and by conducting personal development workshops. (Tr. 806, 810.) For example, Minister Conrad Muhammad, a prominent NOI figure, has spoken at two Rikers Island facilities: the George Mochen Detention Center ("GMDC") and the Otis Bantum Correction Center ("OBCC"). (Tr. 811.)
NOI volunteers, under the direction of Minister 9X, the NOI Director of Prison Ministries, have been conducting self-development workshops at GRVC on Rikers Island. (Tr. 806.) These workshops stress such themes as self-esteem, responsibility, respect and empowerment. (Tr. 806, 850.) The sessions are held once a week for two hours and are open to all inmates in the facility who wish to participate, regardless of religious affiliation. (Tr. 806-07.) Generally, twenty to thirty inmates attend each session. (Tr. 807.) The volunteers bring in written materials prepared for the workshop, as well as the publication, the Final Call, to utilize as part of the discussion. (Tr. 810.) The Final Call is left for the inmates to read after the workshop is over. (Tr. 810.)
DOC began to offer these workshops after Minister 9X approached McCloud about providing
At the time of trial, these self-development workshops had not been offered for two months because of scheduling difficulties with NOI volunteers. (Tr. 807-08.) However, McCloud testified that he planned to resume the program by the end of January. (Tr. 808.) In addition, McCloud plans to expand the program to other facilities. (Tr. 807.) According to McCloud, if Minister 9X and his colleagues are unavailable, McCloud will look for someone else in the NOI community to provide these workshops. (Tr. 815.)
VII. Testimony of Robert Daly and Robert Wangenstein Concerning DOC's Operations and Allocation of Resources
Robert Daly ("Daly") is the DOC First Deputy Commissioner and is responsible for the implementation of DOC policy. (Tr. 737.) He reports directly to the Commissioner. (Tr. 737.) Daly has held a variety of positions in his twenty-two-year career with DOC, including General Counsel and Special Counsel to the Commissioner. (Tr. 738.) Daly testified about the factors considered by DOC in allocating its resources and operating the correction system in New York City.
Robert Wangenstein ("Wangenstein") is the Warden of the Brooklyn House of Detention for Men. (Tr. 617.) In his twenty-three-year tenure with DOC, he has held a variety of positions, including DOC Deputy Commissioner of Security in the period 1990-1994. (Tr. 617-20.) Wangenstein testified about the logistical and security concerns inherent in the operation of DOC facilities, using the Brooklyn House of Detention as a representative facility.
A. Overview of the relevant DOC operations
DOC presently operates sixteen jails, of which ten are located on Rikers Island and the remainder in the boroughs; three hospital prison wards; and seventeen holding facilities in the city courts, known as "court pens." (Tr. 621; Joint Pretrial Order, Ex. C ¶ 2.) About half of the DOC facilities provide cell block housing, with the other half providing dormitory housing. (Tr. 764.) These facilities hold inmates of various classifications, including detainees awaiting trial, City-sentenced inmates serving one year or less, State-sentenced inmates who are temporarily in the DOC system for a trial or appeal, State-sentenced inmates who have been paroled and have been rearrested on parole violations, Immigration and Naturalization inmates and, on occasion, federal inmates held by agreement or contract. (Tr. 622; Def.Ex. E).
At the time of trial, of the 19,000 inmates in DOC custody, about 3500 have been convicted of crimes and are serving sentences of one year or less in DOC custody. (Tr. 763, 780-81.) About 1600 inmates are paroled state inmates who have been rearrested on parole violations and are in DOC custody awaiting a hearing or remand to DOCS. (Tr. 783.) Approximately 200 inmates are sentenced inmates serving their sentences at state correctional facilities who are in temporary DOC custody for various other reasons, such as awaiting trial. (Tr. 782-83.) The balance and great majority, some 13,700 out of 19,000, are pre-trial detainees who are either being held without bail or have been unable to make bail. (Tr. 785.) In short, there are significantly more pre-trial detainees than there are sentenced inmates in DOC custody. (Def.Ex. E-4.)
Unlike DOCS, which holds sentenced inmates for set periods of time, DOC's system is primarily a detention system, where inmates are held to await trial, as described above. (Tr. 750.) The inmate turnover time is brief. In fiscal year 1994, 111,072 inmates
DOC expects that 130,000 inmates will enter DOC custody this year. (Tr. 750.) Of that number, DOC expects fifty percent to leave the system in about six days and the other fifty percent to depart approximately 50 days later. (Tr. 750.)
On a typical day, 300-350 persons enter the DOC system, and approximately the same number are discharged. (Tr. 750.) On a typical day, approximately 2000 inmates are transported to the five boroughs for court appearances. (Tr. 751.) Many of those inmates do not return because they receive time-served sentences, have their cases dismissed or make bail. (Tr. 751.) About 100 sentenced inmates are transferred daily to DOCS custody, for a total of 500 transfers per week. (Tr. 751.) On a typical day, about 1200 inmates on Rikers Island are moved to different DOC facilities on Rikers Island pursuant to the ongoing process of classifying and reclassifying inmates based upon changes in their inmate profile. (Tr. 751.) For example, special housing may be required for medical reasons or where an inmate is deemed a suicide or escape risk. (Tr. 751.)
In sum, I find on essentially uncontroverted evidence that the DOC prison population is exceptionally dynamic; it suffers from a relatively high number of inmates as well as an exceedingly high inmate turnover rate. The dynamic nature of DOC's population distinguishes it from other systems as to which evidence was offered, making comparisons to those systems inapposite.
DOC's current operating budget for fiscal year 1995 is $746 million.
DOC has been reducing its operating budget. (Tr. 740.) Reductions are continuing into the immediate future; DOC, along with other City agencies, has been ordered to reduce its budget due to a $500 million gap in the City budget in the current fiscal year and the anticipated $2 billion gap in fiscal year 1996. (Tr. 740.) Specifically, at the time of trial, DOC had been directed to reduce its operations by $18 million by July 1, 1995, and by an additional $18 million six months after that. (Tr. 740, 764-65.)
Although DOC's budget has, of necessity, been reduced, its inmate population has been increasing. (Tr. 741.) At the time of trial, there were approximately 19,000 inmates in DOC custody. (Tr. 763.) Based upon the growth rate for the inmate population, DOC anticipates holding approximately 20,200 inmates in June 1995; 20,900 inmates by November 1995; and over 21,000 inmates by 1996. (Tr. 763.) In addition, in fiscal year
Although the number of inmates is increasing, DOC has been forced to reduce its staff. For example, in calendar year 1994, 1600 additional inmates entered the system but during that same year, DOC lost 400 correction officers and 400 civilian workers. (Tr. 740.) At its high point, in 1992, DOC employed about 11,950 correction officers. (Tr. 743, 786.) The number was about 10,600 officers at the time of trial. (Tr. 786.)
Furthermore, attrition has taken its toll on DOC, with 1200 additional people retiring or leaving voluntarily within the last three years. (Tr. 742.) Moreover, as a result of two recent City severance programs, 400 civilians out of a total civilian staff of 2100, have left DOC. (Tr. 742-43.) DOC also anticipates losing several hundred more civilians under the current City severance program. (Tr. 743.)
As a result of the loss of staff positions, DOC recently has been forced to close a number of correctional facilities including the Brooklyn Correctional Facility ("BCF" or the "Brig"), which formerly housed 1,350 inmates; the south wing of the Manhattan Detention Complex ("MDC" or "the Tombs"), which formerly housed 388 inmates; and a converted Staten Island ferry boat berthed at Rikers Island, which formerly housed 162 inmates. (Tr. 741-42.) Other correctional facilities closed in recent years due to budgetary concerns include the Forebell Facility, a sentenced women's facility in Brooklyn, and two prison barges. (Tr. 621-22.)
Another result of the staff cutbacks and budgetary concerns is the reduction or elimination of numerous inmate programs deemed valuable and successful by DOC. For example, a 900-bed drug program has been reduced to 200 beds. (Tr. 744.) All the correction officers assigned to the inmate grievance program have been reassigned. (Tr. 744.) DOC anticipates eliminating the inmate indoor recreation program by the end of January 1995 in order to utilize the 170 uniformed correction officers in other areas. (Tr. 744.) DOC also anticipates eliminating all its civilian counselors, who help inmates secure employment, housing and various social services, following their release from custody. (Tr. 748.)
DOC's overall aim has been to reduce discretionary programs, leaving only those programs required by consent decrees or the minimum standards of two independent oversight agencies, the New York City Board of Correction (see New York City Charter § 626) and the New York State Commission of Correction (see Correction Law, Article III, §§ 40-48). (Tr. 744-45; Pl.Ex. 58.) Currently, virtually all, if not all, of the inmate programs offered by DOC provide services required by consent decrees or the minimum standards. (Tr. 752.) These programs include recreation, law library, visits, religious services and educational programs. (Tr. 752; Pl.Ex. 58.)
However, mandated programs will be affected by the current downsizing. For example, as a result of a federal consent decree, inmates cannot be "locked-in" their cells or dormitory until 11:00 p.m., which allows them to congregate in housing area "day rooms." DOC plans to move to modify the consent decree to change the lock-in time to 9:00 p.m., thereby reducing the number of correction officers needed to monitor the congregating inmates and saving 350 correction officers' posts. (Tr. 749.)
Another factor DOC considers in allocating its resources is the likely effect on the inmate population. For example, a newspaper article about the proposed early lock-in time led to a hunger strike among inmates on Rikers Island. (Tr. 757.) This required DOC immediately to meet with members of the various Inmate Councils to educate them about the process that would have to be undertaken
Currently, the DOC programs budget comprises about 1.7% of the current operating budget ($12 million) and is expected to be reduced to slightly under 1% ($6 million). (Tr. 753.) Of this amount, the amount allocated for religious programs is $900,000 to $1 million, an amount that has been relatively stable for the past few years and which is not expected to change. (Tr. 753, 772-73.) This amount reflects a recent increase in which DOC upgraded several temporary chaplain positions to full-time permanent positions, in response to an increase in the inmate population. (Tr. 753, 773-74.) As stated supra, DOC currently employs forty-four chaplains and has no plans to reduce this number. (Tr. 773-4; Pl.Ex. 57.)
B. The Rationale of Generic Services
In determining what programs will be preserved and what programs will be reduced or eliminated, DOC considers the security implications, the program's efficiency and its cost. (Tr. 758.) As a result, DOC has developed a policy of providing programs in a generic manner.
There are numerous factors that DOC cites in favor of its policy of generic services. Among them is the reality that space is at a premium in DOC facilities. DOC jails were built to house a far smaller inmate population than they currently do. (Tr. 759.) As the inmate population grew, DOC added housing areas to the core facilities but did not add concomitant program areas. For example, the Adolescent Reception and Detention Center on Rikers Island ("ARDC"), built for 1200 inmates, now holds almost 3,000 inmates. (Tr. 759.) As a result, there is a greater demand for program services in disproportionately smaller program areas. (Tr. 759.)
Another concern is staffing. With generic services, DOC requires fewer clergy, escort and security staff. (Tr. 759.) This also furthers security concerns, because a detention correctional system is designed to minimize inmate movement within a facility in order to lesson the chances of inmate altercations — either with escorting officers or passing inmates — or the exchange of contraband among inmates. (Tr. 759-60.) By minimizing different available services, DOC can reduce the movement taking place outside the housing areas, when escort officers would be needed. (Tr. 760.)
Generic services also have an impact on DOC's ability to classify and house inmates efficiently. (Tr. 760.) For example, since forty percent of inmates identify themselves as Catholic, DOC does not have to set aside a particular space for those inmates. There are enough Catholics so that they can be dispersed throughout the correction system according to their security classification, and whatever jail they are placed in will have enough other Catholic inmates to participate in a Catholic service. (Tr. 760.) If, however, inmates were classified by individual religious sects, DOC would have to consider religious affiliation in classifying and housing inmates. If such were the case, and if, for example, there were not enough Baptist inmates to be spread throughout the system, the Baptist inmates would have to be congregated in one jail in order to receive a Baptist service. This would adversely affect the security classification system in that high security Baptist inmates would be commingled with low security Baptist inmates. As a result, the jail would have to be operated at the highest security level, which is more expensive. (Tr. 760-61.) DOC is able to avoid this problem by offering generic services which gives it greater flexibility in housing inmates.
I find that it would be impossible for DOC to provide a separate congregate service for
C. Operations at the Brooklyn House of Detention
DOC offered additional evidence about the implementation of DOC policy described supra in the context of testimony concerning the daily operations of one representative facility, the Brooklyn House of Detention. A borough facility such as this one is basically a new admission facility, where arrestees are sent following their arrest and arraignment. (Tr. 623.) Following inmates' remand to DOC custody, facility personnel review the history of newly-admitted inmates to determine their security classification, which in turn determines where they are housed.
Borough correctional facilities, such as the Brooklyn House of Detention, are high-rise structures comprised of cell blocks and dormitory housing. (Tr. 625.) For example, the Brooklyn House of Detention is twenty-two stories high and is comprised of cell-block housing only. (Tr. 625.) Cell blocks in the Brooklyn House of Detention are "H"-shaped, with each section housing thirty inmates for a total of 120 inmates per block. (Tr. 625-26.) Two correction officers are assigned to supervise a cell block of 120 inmates. (Tr. 625-26.) The Queens House of Detention For Men, by contrast, consists of dormitories, each of which typically houses fifty inmates. (Tr. 625.)
At the Brooklyn House of Detention, 325 correction officers and seventy-one civilians are assigned to the facility, which houses 815 inmates. (Tr. 626-27, 630.) In the months prior to trial, the Brooklyn House of Detention's uniformed staff has been reduced by eighteen correction officer "posts" due to budget cuts. (Tr. 629.)
Approximately 785 inmates at the Brooklyn House of Detention are detainees awaiting trial, while approximately thirty inmates have been convicted and sentenced. (Tr. 644.) About half of the inmate population at the Brooklyn House of Detention is relatively stable, i.e., they will be housed there for a period of time, as opposed to the remaining half, which leaves the facility within seventy-two hours to be housed at Rikers Island. (Tr. 646-47.) The stable population consists of inmates under mental observation, in protective custody or maximum security and a portion of the general jail population. (Tr. 646-47.) The other half, which is a transient population, generally spends its short period of time in the Brooklyn House of Detention either in the law library or on the telephones trying to arrange bail. (Tr. 646-67.)
In the course of a typical weekday, approximately 200 inmates are transported from the Brooklyn House of Detention to court for trial, while approximately forty-five new admission inmates will enter the facility for the first time. (Tr. 631.) Inmates who are moved from a housing area to the Receiving Room to be transported to court must first be strip searched before leaving the facility, a process which requires approximately twelve to sixteen correction officers. (Tr. 632.) In addition, facility escort officers accompany inmates when they travel outside the jail, such as to Rikers Island for x-rays or to a City hospital for treatment. (Tr. 634-35.)
Operations at the Brooklyn House of Detention are considerably reduced on weekends, with no sanitation posts and reduced clerical functions. (Tr. 650-51.) On the busiest weekend tour of duty (8:00 a.m. to 4:00
The Brooklyn House of Detention provides various religious accommodations, such as Muslim, Catholic and Protestant congregate services
The Muslim congregate service at the Brooklyn House of Detention is held on Friday. (Tr. 635.) Approximately ten to fifteen inmates attend the service there. (Tr. 635.) To be transported to the chapel area — which is not on the floor containing the housing areas — inmates gather in each housing area, where the post officer pat frisks them in order to prevent the transfer of contraband within the facility. (Tr. 636-37.) Although approximately thirty-five percent of the uniformed staff at the Brooklyn House of Detention is female, the Muslim inmates are searched only by male officers. (Tr. 637-38.) Qurans are searched by a correction officer using a hand transfixer. (Tr. 637.) A recreation post officer picks up the inmates on each housing floor on the elevator. (Tr. 636.) The inmates are then taken to the chapel area, where, prior to entry, they pass through a magnetometer and are searched once again. (Tr. 638.) During the service, an officer assigned to the chapel monitors the inmates. (Tr. 639.) At the conclusion of the service, the inmates are again frisked and escorted back to the housing areas in similar fashion. (Tr. 639-40.)
The Ramadan holiday is celebrated at the Brooklyn House of Detention. (Tr. 640.) Participating inmates are awakened before sunrise and given a bagged breakfast.
Wangenstein testified that he had only one experience with a group of inmates requesting special services. (Tr. 651-52.) When Wangenstein was DOC Deputy Chief of Security, a group of inmates known as the "Latin Kings" presented a petition seeking a special meeting place to conduct services and prayers. While noting that the Latin Kings was not a recognized religion, the request was denied by DOC on the logistical grounds of limited staff and space. (Tr. 651-52, 663.) Wangenstein did not indicate that a group of NOI inmates requested special services; in fact, he stated that he was not aware of any of his inmates even being NOI members. (Tr. 650.)
D. Analogous Procedures On Rikers Island
Wangenstein also testified to the differences in operating a jail on Rikers Island.
The AMKC mosque is on the ground floor of AMKC. To attend a service at the mosque, groups of approximately ten to twenty inmates leave their housing areas and travel down the long expansive corridors at one time, under the supervision of correction officers stationed at fixed posts. (See also Tr. 401, 656.) Prior to entering the mosque, inmates are pat frisked or directed to step through a magnetometer. During the service, one or two correction officers observe the inmates from the back of the relatively spacious mosque. There appeared to be approximately forty-five to sixty inmates attending this particular service. After the service concluded, the inmates returned to their housing units in groups. Although the inmates were mostly unescorted by corrections officers, they were observed by stationary corrections officers.
E. Evidence Concerning the Number of NOI Inmates
There was conflicting evidence concerning the number of NOI inmates incarcerated in DOC facilities. As stated supra, the evidence offered by defendants indicated that there were relatively few NOI inmates in their custody. For example, Imam Askia testified that he encountered only three inmates who belonged to the NOI during his four and a half years as a DOC facility chaplain. (Tr. 677.) Imam Luqman testified that he has encountered approximately ten inmates who belonged to the NOI during his twenty-year DOC career. (Tr. 713-14.) Imam Luqman also testified that plaintiff Muhammad was the only member of the NOI who requested special services. (Tr. 714.)
For the most part, evidence offered by the plaintiffs tended to indicate there were more, albeit an unknown number, of NOI inmates. Minister 9X was, at the time of trial, a minister of the prisons for the NOI.
However, I do not find that the evidence plaintiffs offered to be credible on the issue of the number of members of the NOI in DOC's custody. For example, Minister 9X identified only one inmate by name, a Norbert X, who was, according to Minister 9X, housed on Rikers Island.
The other evidence offered by plaintiffs appears to be affirmations executed by other inmates that plaintiff Muhammad obtained during his incarceration on Rikers Island after trial.
(Duffy Decl., Ex. B (capitalization and spacing in original).)
First, the affirmations are unreliable on their face. Some inmates have checked only that they are "interested" in NOI services. Some checked the boxes indicating that they are members of NOI and want services. Others checked all three boxes, prompting the question how an inmate could simultaneously belong to the NOI and yet desire to join the NOI. In short, it is impossible to discern whether this material is anything other than a testament to the persuasive powers of plaintiff Muhammad.
Second, the reliability of the affirmations is called into question in light of plaintiff Muhammad's testimony. At trial, he testified about his role in educating inmates who expressed interest in learning about NOI, describing his role as "bait to fish." (Tr. 415-18.) He did not, however, testify that there were actual members of the NOI to be found in the kinds of numbers that the affirmations seem to suggest. (Tr. 415-18; Calhoun Decl., Ex. B at 29-30). In addition, plaintiff testified during his deposition that, while he was at GRVC on Rikers Island, there were "several individuals, some of whom I had recruited" who belonged to NOI, "a brother who was already a member of the Nation of Islam," and "one other individual who had been a member previously." (Calhoun Decl., Ex. B.) He also stated that he "recruited" fifteen inmates in all. (Id.) Thus, it appears plaintiff encountered rather different numbers of NOI inmates during different periods of incarceration in DOC facilities. This discrepancy either diminishes the weight of
Plaintiffs have stated that, to the extent that I deem these fifty or so affirmations unreliable, they seek to supplement the record to allow deposition or live testimony from each inmate identified in the documents about his membership in the NOI and desire to participate in NOI religious services and classes. (Plaintiffs' Memorandum of Law in Support of Motion to Reopen the Record to Admit Newly Discovered Evidence ("Pl.Mot. to Reopen") at 8-9.) Deeming plaintiffs' statement as a request to reopen the record yet again, the request is hereby denied. Plaintiff Muhammad could have given a more carefully worded form to the inmates, and plaintiffs could have offered, at the time of their motion to reopen, a more complete evidentiary background detailing the circumstances of the completion of the forms. Their failure to do these things is hardly the fault of the defendants; it was no surprise to plaintiffs that the question of the number of inmates who belong to the NOI would be an issue in the case. In short, plaintiffs have had ample opportunity to litigate this case, i.e., first, at the time of trial and second, at the time they moved to reopen the record. They shall not have a third opportunity. To rule otherwise would result in flagrant disregard for the principles of finality and judicial economy.
In sum, considering all of the evidence and the circumstances under which testimony was given, I credit the testimony of Imam Askia and Iman Luqman and find that over the last twenty years and continuing to the time of trial, there have been no more than a handful of members of the NOI in the DOC system at any time, and, of those, only plaintiff Muhammad has made a request for additional accommodations.
F. Federal Bureau of Prisons' Religious Accommodations
Evidence was offered at trial concerning the religious accommodation policies and practices of the Federal Bureau of Prisons (the "Bureau"). (E.g., Pl.Exs. 3, 7, 11, 12.) The Bureau formally recognizes the NOI as a distinct Muslim organization (Pl.Ex. 3 at 12-13), and there can be no question that the Bureau provides greater institutional opportunity for observing NOI religious practices on a group basis.
However, the evidence indicates that DOC attempts to offer to NOI inmates as individuals opportunities similar to those provided institutionally on a group basis by the Bureau. For example, the Bureau has contracted with NOI representatives to enable knowledgeable, NOI-certified persons to speak to inmates. (Pl.Ex. 3 at 15-16; Pl.Ex. 7.) The Bureau compensates the NOI representatives who come to Bureau facilities. (Pl.Ex. 3 at 17.) There are, however, only "a few" NOI representatives with such Bureau contracts. (Pl.Ex. 3 at 15-16.) I find this practice to be comparable to the DOC practice of inviting NOI representatives to meet with inmates for various activities other than group religious services. (Tr. 630, 805-06, 811, 849-850.)
Both the Bureau and DOC allow inmates to have access to NOI literature. For example, the Bureau permits and supports the Final Call newspaper. (Pl.Ex. 3 at 20-24; Pl.Ex. 7.) The Bureau also purchases literature pertaining to the NOI to be read by inmates. (Pl.Ex. 3 at 20-23.) DOC also allows religious literature to be disseminated freely among its inmates. (Pl.Ex. 58, Title 40, § 1-14(a).) Plaintiff himself testified that during his incarceration on Rikers Island, he received literature not only from NOI representatives, but also from DOC employees, who encouraged him in his studies. (Tr. 419-420.) Indeed, the assistance rendered by DOC employees was ample enough to allow plaintiff to train to become an NOI ministerial representative while in DOC custody. (Tr. 419-21.)
The Bureau recognizes Savior's Day and Founder's Day as NOI religious holidays. (Pl.Ex. 3 at 25-27; Pl.Ex. 12 at 3.) The Bureau also makes accommodations to allow NOI inmates to observe the December Fast. (Pl.Ex. 3 at 25, 27, 29-30; Pl.Ex. 11; Pl.Ex. 12 at 3.) The Bureau does not formally celebrate all religious holidays, however, due to the enormous number of holidays. For example, although the Jewish faith recognizes
In short, there are differences between the religious accommodations available in Bureau and DOC facilities. However, I find that the differences in accommodations are only marginal when compared to the enormous differences in the characteristics of the Bureau and the DOC systems. For example, as described supra, DOC operates an essentially transitional facility that houses pre-trial detainees awaiting trial. I find that a system as dynamic as the City system — in which over 110,000 inmates pass through yearly after relatively short periods of time in custody (Def.Ex. E) — cannot provide its religious services in the same manner as the Bureau.
CONCLUSIONS OF LAW
This Court has subject matter jurisdiction over this action, and venue in this district is proper pursuant to federal law. This Court has personal jurisdiction over the City defendants pursuant to federal and state law.
I. The Religious Freedom Restoration Act
Plaintiffs' first cause of action alleges that defendants' conduct violated the Religious Freedom Restoration Act of 1993 ("RFRA"). (Second Am.Compl. ¶¶ 52-58.) RFRA provides that governmental action should not substantially burden the free exercise of religion unless it advances a compelling governmental interest. Specifically, RFRA provides in pertinent part that:
42 U.S.C. § 2000bb-1. RFRA applies to both the federal and state governments as well as subdivisions of the state government. 42 U.S.C. §§ 2000bb-2(1), 2000bb-3. RFRA applies retroactively. 42 U.S.C. § 2000bb-3(a).
RFRA purports to restore the "compelling interest" test of Sherbert v. Verner,
RFRA applies to the claims of prisoners.
Alameen, 892 F.Supp. at 447 (quoting S.Rep. No. 111, 103rd Cong., 1st Sess., reprinted in 1993 U.S.C.C.A.N. pp. 1892, 1899-1900 (footnote omitted)); see also Werner, 49 F.3d at 1479-80; Francis, 888 F.Supp. at 574.
Under RFRA, "[t]he threshold issue ... is whether the plaintiff's exercise of religion has been laden with a `substantial burden.'" Prins v. Coughlin, No. 94 Civ. 2053 (MBM), 1994 WL 411016 at *1 (S.D.N.Y. Aug. 3, 1994); see also Francis, 888 F.Supp. at 573 n. 6 (stating that "a plaintiff asserting a claim under RFRA must make a threshold showing that his or her religious exercise has been substantially burdened before requiring the government to meet its burden of production and persuasion with respect to proving a compelling governmental interest and the use of the least restrictive means"). In order to establish that a plaintiff's exercise was substantially burdened, a plaintiff must "demonstrate that the government's action pressures him to commit an act forbidden by his religion or prevents him from engaging in conduct or having a religious experience mandated by his faith." Davidson v. Davis, No. 92 Civ. 4040 (SWK), 1995 WL 60732 at *5 (S.D.N.Y. Feb. 14, 1995) (citing Graham v. Commissioner,
Werner, 49 F.3d at 1480 (citations omitted).
Once a plaintiff has demonstrated the existence of a substantial burden on his or her exercise of religion, the burden then
A. Substantial Burden
In the instant case, plaintiff Muhammad contends that DOC has substantially burdened his free exercise of religion by refusing to (i) hire any NOI ministers as chaplains, (ii) provide congregate NOI religious services, (iii) provide NOI religious texts to NOI members on the same basis as DOC provides religious texts to followers of other religions and (iv) accommodate observance of NOI holidays, i.e., Savior's Day, Founder's Day and the December Fast. I do not agree.
1. Ministers
DOC's failure to employ an NOI minister does not substantially burden Muhammad's free exercise of his religion. The Court of Appeals for the Tenth Circuit has stated recently that:
Werner, 49 F.3d at 1480. In Werner, plaintiff, an inmate in the Utah prison system, contended that the Utah prison system unconstitutionally interfered with the free exercise of his religion, i.e., Native American shamanism. Plaintiff challenged, inter alia, the prison's failure to provide him with access to a Cherokee Native American spiritual advisor. The Court found that this claim was without merit because the prison in which plaintiff was incarcerated employed six part-time chaplains who provided nondenominational religious support to the prisoners. Id. at 1481. Although none of these chaplains was a Native American, there were two Native American spiritual advisors who provided services on a volunteer basis. Id. Thus, the Court held RFRA was not violated.
In the instant case, it is undisputed that DOC does not employ an NOI minister.
If an inmate who belongs to the NOI prefers spiritual guidance from an NOI minister, that inmate has that opportunity. As discussed supra, DOC has a flexible and tolerant policy of permitting inmates to have unlimited personal clergy/counsel visits with any spiritual leader, including NOI ministers. McCloud has worked with Minister 9X to have NOI volunteers provide personal development workshops.
2. Congregate Services
I find that plaintiff's free exercise was not substantially burdened by DOC's failure to offer a congregate NOI religious service. Plaintiff has not shown that the absence of a congregate NOI service is "more than an inconvenience" and that its absence is "substantial" and an "interference with a tenet or belief that is central to religious doctrine." Bryant v. Gomez,
Id. at 949-50.
In the instant case, plaintiff has demonstrated with ample evidence many of the ways in which his beliefs differ from beliefs associated with orthodox Islam. However, he has not demonstrated that the generic Muslim service offends or ignores particular practices or beliefs that are mandated by NOI teachings.
3. Literature
I find that plaintiff's free exercise has not been substantially burdened with respect to literature. DOC's liberal policy concerning literature has been discussed at length. Inmates can and do receive and retain religious literature, including the Final Call. In addition, plaintiff himself testified that he received NOI literature during the time of his incarceration in DOC facilities.
4. Holidays
I find that plaintiff's free exercise has not been substantially burdened with respect to celebration of NOI holidays. All Muslim inmates are allowed to observe Ramadan, the month-long daylight fast observed by all Muslims, including members of the NOI. In addition, there is no prohibition on NOI members' observing their unique December Fast; during December, breakfast is served before sunrise and dinner is served after sunset in DOC facilities for all inmates. Plaintiff himself concedes that he never asked to celebrate the December Fast while he was in DOC custody.
5. Other
As discussed supra, NOI members may observe their faith in a variety of ways while in DOC custody, including provision of Halal meals and wearing Muslim attire, be it the kuffi traditionally worn by many orthodox Muslims or the white shirt, bow tie and star and crescent pin worn by NOI members, including plaintiff, during his period in DOC custody. In addition, male Muslim inmates are searched only by male correction officers.
While plaintiff was incarcerated on Rikers Island, he was able to study to become an NOI ministerial representative. He received the necessary literature from various sources, and DOC staff members, including one captain, who personally delivered literature to plaintiff from Minister Muhammad of Temple No. 7 in Harlem. These events indicate that plaintiff was not substantially burdened in the exercise of his religion.
Plaintiff's sole dissatisfaction with the religious accommodations he received while in DOC custody appears to center on a dispute he claims to have had with Imam Askia concerning his supposed election as
Based upon Imam Askia's testimony and my observations of both witnesses' demeanor at trial, however, I credit Imam Askia's testimony concerning the inmate representative election. As a former NOI member himself, Imam Askia remains tolerant of all Muslim faiths, including the NOI. Imam Askia testified that an important part of his role as a prison chaplain is to "deal with differences" without getting offended by different beliefs. I do not credit plaintiff's account of their encounter, which described Imam Askia as intolerant and disrespectful. I find that plaintiff's obvious disappointment at not being chosen to serve as inmate representative may have contributed to his somewhat harsh account of their encounter.
Plaintiff also claims that after his dispute with Imam Askia, a group of inmates assigned to security duty in the mosque kept him from attending a Friday Jumu'ah service, an act plaintiff believes to have been taken under orders from Imam Askia. Again, I credit the testimony of Imam Askia who testified that in his four-and-a-half years as a facility chaplain, he has never kept anyone from attending Muslim services. Imam Askia also testified that if he had a security problem in the mosque, he would turn for assistance to the correction officers who are always assigned to provide security during religious services. I find it improbable that a group of inmates would provide organized security at a DOC facility to keep another inmate from attending services as plaintiff claims — particularly in light of the security regularly provided by corrections officers which I observed during a Jumu'ah service at a Rikers Island facility.
In sum, because the numerous accommodations and activities offered by DOC did not coerce or pressure plaintiff into committing acts forbidden by his religion or prevent him from engaging in conduct that is mandated by his faith, plaintiff has failed to demonstrate that his exercise of religion has been substantially burdened under RFRA.
B. Compelling Interest and Least Restrictive Means
Even if plaintiff were able to demonstrate that his exercise of religion had been substantially burdened, however, plaintiff would not prevail because DOC has demonstrated that any burden plaintiff might have suffered was in furtherance of a compelling governmental interest and was the least restrictive means of furthering that compelling interest. It is, of course, well established that correction officials have a compelling interest in maintaining internal order in penological institutions, see Bell v. Wolfish,
As described supra, efficient and safe management of a correctional system is a particularly daunting task in New York City because of the increasing number of inmates and the rapid turnover of the inmate population. DOC's mission is made more difficult by its decreasing budget and the resulting reduction in the number of facilities, correction officers and programs. At the same time, DOC is obligated to provide mandated services to its inmate population. The unique situation facing DOC — i.e., a constantly changing and rapidly increasing inmate population yet substantially decreased resources — has a significant bearing on DOC's ability to provide separate religious services for the NOI or any other specific sect or group.
The provision of religious services requires correction officers to search and escort the inmates to services. Many DOC facilities on Rikers Island are flat, one or two story structures requiring inmates to travel along wide, long corridors where they pass other groups of escorted inmates. This requires careful supervision since contraband can be exchanged or altercations can occur when inmates are moving. The congregate services themselves provide additional opportunities for the exchange of contraband among inmates, and thus require additional officers to monitor and search the inmates. In addition, security must be provided in the chapel or mosque area during services. It cannot be reasonably disputed that separate congregate services led by NOI ministers for NOI inmates, as well as any other group activities and/or accommodations, would require additional correction officers.
Finding space and a time slot to offer separate NOI services also poses significant hurdles. The DOC jail system was built for a much smaller inmate population. The evidence indicates there is simply insufficient space and time available for the provision of separate religious services for individual sects or groups in a system already straining to provide the required array of services to an expanding population in disproportionately smaller program areas.
An additional logistical problem is that male Muslim inmates may only be searched by male correction officers. The provision of a second weekly Muslim service where female officers are precluded from conducting searches would cause significant logistical and staffing problems.
In addition to large numbers of inmates who must be gathered and escorted to various activities within each facility, significant numbers of inmates are also moved throughout the system each day due to, for example, changing security classifications, medical reasons and perceived suicide or escape risk. On any given day, numerous inmates are transported to court for appearance, to hospital appointments or specialty clinics located at other facilities.
Finally, there are inherent logistical difficulties arising out of the rapid turnover of inmates. Because of the rapid turnover rate, it would be enormously difficult not only to track the relatively small number of members of the various sects or groups, but also to determine their long-term length of stay. Without being able to predict how long members of particular religious sects or smaller groups will remain in the system, there is no reasonable way to determine whether or not
Furthermore, there has been no credible evidence that there have been more than a few NOI inmates in DOC facilities in the last decade. By contrast, twenty-five percent of DOC inmates identify themselves as Muslim on entry into the system and ten percent identify themselves as "other", that is, not Catholic, Protestant, Jewish or Muslim. (Tr. 758, 762, 778-79).
Generic services also permit DOC to classify and house inmates based on their security classification rather than their religious affiliation. If inmates were classified by individual religious sects, DOC would have to consider religious affiliation in classifying and housing inmates. This would result in facilities being operated at the highest security level, which is more expensive. DOC is able to avoid this problem by offering generic services.
I find that, given DOC's unique situation, there is no less restrictive alternative DOC could offer in the way of congregate services or classes or congregate holiday services for NOI inmates. Indeed, by accommodating the NOI with separate congregate services, DOC would likely have to accommodate similar sects, such as Shiite, Ah-Mahidiya, Greek Orthodox, Baptist, Orthodox Judaism and so on, thereby exacerbating the difficulties described above. Providing separate services and the various other accommodations sought which are not already available for even a fraction of these individual groups is clearly impossible for a detention system such as DOC for the reasons set forth above.
II. First Amendment Claims
Plaintiffs' second and third causes of action allege, pursuant to 42 U.S.C. § 1983, that the defendants' challenged policy also violates plaintiffs; First Amendment rights to the free exercise of their religion and to be free from any law establishing religion. (Second Am.Compl. ¶¶ 59-63.)
A. Free Exercise
Under pre-RFRA First Amendment analysis, regulations alleged to infringe the constitutional rights of inmates are judged under a "reasonableness" test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional
Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62 (internal citations and quotations omitted) (other alterations in original).
The vitality of Turner and O'Lone continues in non-RFRA cases. E.g., Giano v. Senkowski,
If, however, the Turner and O'Lone standard governs plaintiffs' First Amendment claims, plaintiffs' First Amendment claims fail a fortiori. As a preliminary matter, I note that the Supreme Court has stated that:
Cruz v. Beto,
When applying the Turner standard, a court must consider four factors, i.e.:
Al-Alamin v. Gramley,
As extensively discussed supra, there can be no question that DOC's policies are rationally related to DOC's legitimate interest in running DOC facilities safely and efficiently. That is, DOC's policies are reasonably related to DOC's concerns that non-generic services and individual group accommodations will undermine DOC's ability to run a complex jail housing some 19,500 highly transitory inmates. Further accommodations — in particular, separate congregate services for NOI inmates — would significantly affect DOC's ability to provide the current level of mandated services to its inmate population. Moreover, if I were to find that DOC must provide separate congregate services for NOI inmates, little, if anything, would preclude numerous other faith groups from seeking their own separate congregate services. The First Amendment surely does not require such an outcome. Also, as explained above, plaintiff as well as any other NOI inmates — to the extent there are such inmates in DOC custody — have adequate opportunity to practice their religion, including access to NOI clergy/volunteers.
B. Establishment Clause
In order to satisfy the Establishment Clause, "a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion." Lee v. Weisman,
It has long been recognized that providing chaplains in the military and in penal institutions presents a tension between the Establishment Clause and the Free Exercise Clause. E.g., School Dist. of Abington Township v. Schempp,
The majority of cases dealing with the First Amendment rights of prisoners appear to be Free Exercise, not Establishment, cases. However, at least one court has held that "`the mere fact that a prison chaplain is of one particular faith' does not constitute an Establishment Clause violation." Ingram v. Ault,
In the instant action, plaintiffs argue that the City defendants' conduct (i) in deciding to which religions they will provide religious services and accommodations and to which they will not and (ii) in denying religious services and accommodations to followers of the NOI while allowing the same rights to inmates who adhere to other religions does not reflect a clearly secular purpose. First, I do not agree with plaintiffs' characterization of the facts. That is, I have already found that DOCS did not substantially burden plaintiff Muhammad's free exercise, and plaintiffs' blanket assertion that religious services and accommodations have been "denied" to NOI inmates is simply wrong and wholly without support in the record. Second, I find that DOC's policies do reflect a permissible purpose, i.e., providing religious accommodations to the inmates in its custody while operating within the difficult constraints of the economic and security concerns described supra.
Plaintiffs also argue that the City defendants' conduct has a primary effect that advances certain religions and inhibits the NOI religion. I disagree. First, I find that plaintiffs have not demonstrated that NOI inmates are inhibited in the practice of their religion. Second, the primary effect is to allocate DOC's limited resources equitably in order to provide spiritual guidance for all DOC inmates, not to advance any one or more religious groups.
Finally, I reject plaintiffs' argument that the City defendants' conduct entangles government excessively with religion. In order to permit inmates to freely exercise their religion, some entanglement is necessary. Kahane, 396 F.Supp. at 698. I find that DOC's activities in accommodating inmates' free exercise rights do not result in an excessive entanglement with religion. I note, for example, that as to clergy/counsel visits and literature, DOC's only inquiry is based on its
In sum, I find that DOC has allocated its resources among the various religious groups in an even-handed manner that does not contravene the Establishment Clause.
III. Equal Protection
In their fourth cause of action, plaintiffs allege, pursuant to 42 U.S.C. § 1983, that DOC's religious accommodation policies violate their right to equal protection. (Second Am.Compl. ¶¶ 64-65.) Prior to the enactment of RFRA, the Court of Appeals applied the Turner and O'Lone standard to equal protection claims of prisoners. The Court stated that, with respect to such claims, "the reasonableness of the prison rules and policies must be examined to determine whether distinctions made between religious groups in prison are reasonably related to legitimate penological interests." Benjamin v. Coughlin,
As to the latter standard, as described supra, DOC's policies are reasonably related to legitimate penological interests in being able to manage effectively the large number of rapidly changing inmates in the DOC system and in maintaining security and good order. In addition, all faith groups receive generic religious services, with unlimited individual clergy/counsel visits and a flexible individual accommodation policy. I find that NOI inmates are not being treated differently from other inmates and, to the extent they might be, such differences are rationally related to legitimate penological interests.
IV. New York Law
A. State law
Plaintiffs allege in their fifth cause of action that the City defendants' religious accommodation policies violate the Constitution and laws of New York. (Second Am.Compl. ¶¶ 66-68, 71.) The New York Constitution provides in pertinent part that:
N.Y. Const., art. 1, § 3. This free exercise right has been extended to inmates in New York correctional facilities by New York Correction Law § 610.
Lucas v. Scully,
Under New York law, "freedom of exercise of religious worship is not an absolute but rather a preferred right; it `cannot interfere with the laws which the State enacts for its preservation, safety or welfare.'" Brown v. McGinnis,
As discussed above, DOC's religious accommodation policies are based on legitimate institutional needs and objectives. The religious rights the plaintiff seeks to exercise are important; nonetheless, his rights are infringed upon, if at all, only slightly, and DOC's institutional needs and objectives are significant, as described supra. Accordingly,
B. City Regulations
Plaintiffs allege that defendants' conduct violates the Rules of the City of New York. (Second Am.Compl. ¶¶ 69-71.) The New York City Board of Corrections is an independent City agency, created pursuant to Section 626 of the City Charter, whose purpose is, among other things to "establish minimum standards for the care, custody, correction, treatment, supervision, and discipline" of persons in city custody. See N.Y. City Charter § 626(e). The Board of Corrections has promulgated Minimum Standards for correctional facilities, which are codified in Title 40, Rules of the City of New York, Chapter 1.
The Minimum Standards require only that inmates "be permitted" to congregate for the purpose of religious activities. It does not mandate a policy institutionalizing congregate activities if there is no institutional demand for those activities. The evidence adduced at trial demonstrates no systematic demand for NOI congregate activities. Indeed, plaintiff Muhammad, the only plaintiff asserting claims against DOC, did not testify that he requested such institution-wide activities. When requested to provide congregate religious activities in the past, DOC has accommodated inmates, as in the case with the Buddhist inmates. This was the only group request made to the DOC Director of Ministerial Services during his tenure.
In short, the evidence at trial did not indicate that DOC has violated city regulations.
V. Qualified Immunity
Defendants Anthony Schembri, Allyn Sielaff and Catherine Abate (the "individual City defendants") are former DOC commissioners. Plaintiffs assert that each of the individual City defendants held the position of Commissioner at times relevant to the allegations made in the Second Amended Complaint. The individual City defendant assert that (i) they are not sued in their
In Harlow v. Fitzgerald, the Supreme Court described the application of summary judgment in a § 1983 action as follows:
In this case, plaintiffs primarily rely on RFRA, a statute passed in 1993, which has retroactive application. Plaintiff Muhammad, the only plaintiff asserting claims against the City, was held in City custody in the period 1989-1991. (Tr. 286.) Since the case law on RFRA only began to develop after plaintiff Muhammad's incarceration — and since the original complaint was filed about a year prior to the passage of RFRA — the individual defendants could not reasonably have been expected to surmise that their alleged conduct violated this new statute. This is particularly so since the legislative history specifically eschews imposing a standard that would "exacerbate the difficult and complex challenges of operating the Nation's prisons and jails in a safe manner." S.Rep. No. 103-111, 103rd Cong., 1st Sess., reprinted in 1993 U.S.C.C.A.N. pp. 1892, 1899-1900.
In Woods v. Evatt, the District Court found that prison officials were entitled to qualified immunity for acts taken prior to the passage of RFRA:
Moreover, even had plaintiff Muhammad been in City custody following the passage of RFRA, the individual defendants
CONCLUSION
The above constitutes my findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. In sum, I find that the plaintiffs have not demonstrated any violation of their constitutional and statutory rights by the City defendants. Even if such a violation occurred, the individual City defendants would be entitled to the defense of qualified immunity. Judgment shall be entered accordingly.
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