SMITH v. ARTUS

ion could lead to conflicts between different faith groups, or different sects of the same faith group, or could encourage other inmates to come to the aid of someone of their faith, resulting in escalation of an individual incident to a larger scale, placing staff and other inmates in danger. Artus Decl. ¶¶ 29-35; Rock Decl. ¶¶ 38-44. "Further, during the confusion created by such incidents, an inmate may attempt to escape from the facility or inmates may attempt to take over the prison." Artus Decl. ¶ 36; Rock Decl. ¶ 45.

Demonstrative prayer also negatively impacts the staff's ability to control inmates. Artus Decl. ¶¶ 37-44; Rock Decl. ¶¶ 46-53. For example, an inmate engaged in demonstrative prayer is likely to ignore legitimate direct orders from staff or may view any interruption as an insult to his religion, which might in turn lead to a conflict between the inmate and staff. Artus Decl. ¶¶ 38-40; Rock Decl. ¶¶ 47-49. Moreover, "because the inmate's religion has been identified by his demonstrative prayer, other inmates may join in the conflict, rapidly escalating the situation." Artus Decl. ¶ 41; Rock Decl. ¶ 50. Additionally, a staff member may hesitate to interrupt an inmate engaged in demonstrative prayer out of respect for the inmate's religion, and therefore be "unable to communicate necessary information" to the inmate. Artus Decl. ¶¶ 42-43; Rock Decl. ¶¶ 51-52.

Based upon their concerns that allowing demonstrative prayer in the yard could lead to conflict or could result in a loss of control over inmates who are praying, defendants assert that "the prohibition of demonstrative prayer in [the] recreation yard[s at Clinton and Great Meadow] is reasonably related to the legitimate penological interest of facility safety and security." Artus Decl. ¶ 69; Rock Decl. ¶ 82.

Defendants have identified a legitimate penological interest — namely maintaining a safe prison — to justify the prohibition on demonstrative prayer in the recreation yards at Clinton and Great Meadow. See Pell v. Procunier, 417 U.S. 817, 823 (1974) (stating that "institutional consideration[s] of internal security within the corrections facilities" are "central to all other corrections goals"). The burden now shifts to plaintiff "to show that these articulated concerns [are] irrational." Salahuddin, 467 F.3d at 275.

Plaintiff argues that defendants' asserted interest in prohibiting behavior which might identify an inmate's chosen faith (on the presumption that an inmate's religious identity might lead to conflict) is irrational in light of provisions contained in the very DOCS Directive which defendants use to support their prohibition against demonstrative prayer in the recreation yard. Dkt. No. 91 at 10. Plaintiff points to DOCS Directive 4202(M), which permits inmates to wear religious headcoverings in accordance with their religious beliefs. Dkt. No. 91 at 10; see also Dkt. No. 87-2 at 129-30, DOCS Directive 4202(M). For example, an inmate of the Jewish faith may wear a Yarmulke; a Rastafarian may wear a Tsalot-Kob; and a Muslim inmate may wear a Kufi. Dkt. No. 91 at 10; DOCS Directive 4202(M). Plaintiff further points out that these headcoverings may be worn throughout the day, which would include in the recreation yard. Id. Plaintiff states that adherents of other religions are also easily identifiable by other means. For example, only Rastafarians are allowed to have their hair in dredlocks and certain religions are allowed to grow their beards longer than the general one inch length restriction. Id. at 10-11. Plaintiff also points out that Jewish inmates receive their kosher meals on different colored trays in the mess hall — a location that defendants identified as a highly populated area prone to disturbances (which defendants claim might arise upon identification of inmate's religion). Id. at 11. Finally, plaintiff argues that by virtue of socialization alone (within the housing units, in classes, and during work assignments), and by observing another inmate's comings and goings (leaving the housing unit during a particular religious service or observance), inmates frequently know the religious designation of other inmates. Id.

In response to defendants' assertion that correctional officers will lose control over inmates who are allowed to pray demonstratively, plaintiff argues that this concern is also irrational. Dkt. No. 91 at 11-12. First, plaintiff says that defendants "have not explained how this would be any different for a person praying `introspectively, devoid of symbolism,' which they assert all can pray throughout the facility." Id. at 11. Plaintiff further contends that a person praying introspectively would present a greater risk than a person praying demonstratively because there is nothing to alert a correctional officer that the person is praying , "thereby an unwitting person may more likely disrupt them or give an order (and thus penalize them for not responding), than to one praying demonstratively by which they knew he was praying." Id. at 12. Plaintiff also argues that other activities in the recreation yard (such as sports and table games) have led to conflict in the yard, yet those activities are not banned. Dkt. No. 93 at 27.

Additionally, plaintiff asserts that the policy in place at Clinton and Great Meadow is unreasonable because inmates are allowed to pray in recreation yards in other New York state facilities. Dkt. No. 91 at 13-14; Dkt. No. 93-2 at 43. Plaintiff testified that at Attica Correctional Facility ("Attica"), inmates are allowed to pray demonstratively in the yard, in groups of five, if they do so off to the side of the yard, near the wall. Trans. at 64-65; see also Dkt. No. 91-1 at 35-39. Plaintiff also testified that when he was at Sing Sing as recently as 2005, he was allowed to pray in the yard, "individually . . . off to the side, and it didn't create a disturbance." Trans. at 50; Dkt. No. 93-2 at 43. Plaintiff also states that he was previously allowed to demonstratively pray in the Clinton recreation yard. Trans. at 51. The Court finds it noteworthy that defendants have not responded to this statement, either by denying that inmates were previously allowed to pray demonstratively, or if they were previously allowed to pray demonstratively in the yard, by explaining what brought about the change. Finally, plaintiff provides affidavits from other inmates who aver that they have been allowed to pray demonstratively during outdoor recreation at other facilities. See Dkt. No. 91-1 at 23-26 (affidavits from three different inmates stating that Muslim inmates are allowed to pray Salaah in the recreation yards, with all its movements and postures, at Sing Sing, Five Points Correctional Facility, Eastern Correctional Facility, and Attica). One of the inmate affidavits submitted states that at Auburn Correctional Facility, when prayer time coincided with outdoor recreation, the Muslim Chaplain and administration of that facility made an arrangement whereby an announcement was made over the loudspeaker that Muslim inmates could be escorted from the recreation yard to the mess hall to pray. Dkt. No. 91-1 at 24-25. The fact that other facilities allow inmates to pray demonstratively in the recreation yard is not necessarily instructive in this case, since DOCS Directive 4202 leaves it to each individual superintendent to determine where in his or her own facility demonstrative prayer should be allowed. That being said, defendants have not come forward with some credible evidence to justify the prohibition at Clinton and Great Meadow. For example, defendants have not shown that the lay-out, staffing, etc. at Clinton or Great Meadow differ from the lay-out, staffing, etc. at those facilities where demonstrative prayer is allowed in the recreation yard. Plaintiff has thus raised at least an inference that defendants' security concerns are irrational in light of the fact that other facilities are able to accommodate demonstrative prayer in the prison yard. Additionally, plaintiff argues that defendants' concerns for safety and security are conclusory and speculative and that "the hypothesized potential of security concerns are too remote to outweigh religious freedoms." Dkt. No. 91 at 12.

Plaintiff testified that when he first arrived at Clinton, he prayed several times in the recreation yard without incident. Trans. at 51. Plaintiff stated that "[s]ome officers [at Clinton] don't mind. Some officers adhere to what the policy was before." Id.

Although facts produced at trial may show otherwise, the present record, when viewed in the light most favorable to plaintiff, shows that plaintiff's free exercise rights were substantially burdened by the prayer policy in place at Clinton and Great Meadow. Although defendants have asserted that the policy is justified by a legitimate penological interest, plaintiff has put forth enough evidence for a reasonable jury to conclude that defendants' concerns are irrational or are an exaggerated response to those concerns. Plaintiff has not however submitted sufficient evidence for the Court to conclude as a matter of law that defendants cannot justify their policy on the record at trial. Neither party has carried its burden on this first Turner factor, namely whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.

Notwithstanding the refusal to allow demonstrative prayer in the recreation yard, defendants state that inmates wishing to pray during the recreation period have several alternatives. Plaintiff argues that the alternatives suggested by the defendants are neither reasonable nor the least restrictive means of accommodating his free exercise rights with respect to praying Salaah. Dkt. No. 91 at 15-17.

First, defendants state that inmates may make silent, non-demonstrative prayer in the recreation yard. Artus Decl. ¶ 46; Rock Decl. ¶ 55. Plaintiff has testified that praying Salaah without the required movements does not fulfill his obligation to conduct the prayer, as the various movements are integral and essential aspects of the prayer. Trans. at 53, 56-57; see also Am.Compl. ¶ 27. For example, plaintiff testified that "the prayer is broken into things that are called pillars that [are] essential like a building has its foundation, its pillars, it can't do without . . . The acts that they talk about, such as standing, bowing, sitting, and prostrating are essential acts that the prayer cannot do without." Trans. at 57. When asked, "So the prayer is invalid without those acts?" plaintiff responded, "Yes." Id. Plaintiff has also submitted a portion of a book describing the manner in which Salaah is to be performed. Dkt. No. 38-1 at 61-95. Defendants have presented no evidence, such as testimony from an expert on Islaam and its practices, that silent, non-demonstrative prayer would suffice to fulfill plaintiff's religious obligation to pray Salaah. There remains a question of fact as to whether silent, non-demonstrative prayer is a reasonable alternative.

Plaintiff also cites Chatin v. State, No. 96 Civ. 420, 1998 WL 196195, at *2 (S.D.N.Y. Apr. 23, 1998), which contains in the findings of fact, a description of the requirements for Muslim prayer.

Defendants also suggest that inmates may remain in their cell during the recreation period, forgoing recreation, since they may pray demonstratively in the privacy of their own cell. Artus Decl. ¶ 47; Rock Decl. ¶ 56; see also DOCS Directive 4202(K) (providing that individual demonstrative prayer will be allowed in the privacy of an inmate's own living quarters). At his deposition, plaintiff stated that although he is not required to attend recreation, he is faced with "the dilemma to . . . [e]ither attend recreation, because [inmates] are supposed to be mandated a minimum of one hour recreation by correctional law, you know . . . so we are forced with the dilemma of either partaking the one hour recreation or prayer, so you give up one right." Trans. at 47-48. Plaintiff states that going to the recreation yard carries with it other privileges apart from exercise and socialization. Dkt. No. 91 at 7-8. For example, during recreation, inmates are afforded access to phones located in the yard, an opportunity to take an additional shower, and are exposed to fresh air. Id. Plaintiff states that because he suffers from asthma, the opportunity for fresh air is particularly important to him. Id. Plaintiff also contends that his "choice" is tempered by the threat of disciplinary action, namely, if he chooses to go to the recreation yard, he goes to the yard under the threat that he will receive a disciplinary ticket if he attempts to pray demonstratively. Id. Punishment for such an infraction could result in various sanctions including a loss of privileges, removal from programs, monetary sanctions, and a permanent strike on the prison record (which would be considered by the parole board and the Time Allowance Committee). Id.

In Sherbert v. Verner, 374 U.S. 398 (1963), the plaintiff was put in the position of choosing to exercise her religious beliefs (which required her to not work on Saturdays) or forfeiting her right to receive unemployment benefits. The Sherbert court found that "[g]overnmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." Sherbert, 374 U.S. at 404. In the case at hand, plaintiff argues that, although he has the option to remain in his cell during recreation, this option forces him to choose between praying Salaah demonstratively in his cell but forfeiting his recreation yard benefits on the one hand, or on the other hand, abandoning his Salaah in order to exercise, use the phone, take an extra shower, and enjoy some fresh air. Dkt. No. 91 at 8. Construed liberally, plaintiff seems to argue that this choice puts him between a rock and a hard place, essentially offering him two equally unpleasant alternatives. In accordance with Sherbert, a reasonable juror could conclude that giving plaintiff the choice between prayer or recreation puts pressure on plaintiff to forego his religious practices. As such, absent further evidence to the contrary, defendants have not proven that this is a reasonable alternative.

While of course an inmate may at times be required to choose between two separate and distinct privileges, as must we all, defendants have failed to submit sufficient evidence to show that, as a matter of law, the alternatives that they suggest are the least restrictive means of accommodating plaintiff's religious free exercise.

Finally, defendants state that inmates may return to their cell during the designated "go back" period and then pray demonstratively in their cell. Artus Decl. ¶¶ 48-49; Rock Decl. ¶¶ 57-58. Plaintiff says that the early go back at Clinton and Great Meadow also does not provide a reasonable alternative to allowing plaintiff to pray in the recreation yard. Dkt. No. 91 at 15. Plaintiff states that there are times when the go back period occurs after the time to make his prayer has passed. Trans. at 47. Plaintiff also testified that unforeseen circumstances can sometimes delay the go back period. For example, if a fight breaks out during recreation, the go back may be delayed or may not occur at all. Id. at 48-49. Defendants have not responded to these concerns.

Plaintiff has raised sufficient factual issues regarding the reasonableness of the alternatives available to him to pray Salaah at Clinton and Great Meadow.

The Court must also consider the impact that an accommodation would have on prison guards, other inmates, and the allocation of resources. In this case, defendants assert that changing the current policy regarding demonstrative prayer in the yard would pose a threat to prison security However, as discussed supra, defendants have not met their burden of proving that the prayer policy instituted at Clinton and Great Meadow is a "rational" response to their security concerns. Defendants have therefore failed to meet their burden on this third factor as well. Conversely, plaintiff has not demonstrated to a legal certainty that a change in policy would not have an adverse impact upon guards, inmates, and prison resources.

Finally, the Court must consider the possibility of alternatives. "[I]f an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard." Turner, 482 U.S. at 91. Plaintiff has suggested several ways to accommodate his need to pray Salaah during recreation, each of which defendants claim are untenable.

First, plaintiff suggests that at both Clinton and Great Meadow, an additional go back period could be arranged for Muslim inmates to coincide with their prescribed prayer time. Dkt. No. 91 at 18; Supp.Compl. ¶ 90; Trans. at 78. Defendants state that this option would either create a threat to the safety and security of inmates and guards in the recreation yard, or would be cost prohibitive. Inmates must be escorted while they are transported from the recreation yard to and from their cells. Artus Decl. ¶ 51; Rock Decl. ¶ 60. Defendants contend that escorting Muslim inmates back and forth to their cells during a special, additional go back period would reduce the number of guards available in the recreation yard at a given time, creating risks for both staff and inmates. Artus Decl. ¶¶ 53-54; Rock Decl. ¶¶ 62-63. A diminished number of correctional officers in the yard would create security concerns. Artus Decl. ¶¶ 55-56; Rock Decl. ¶¶ 64-65. Correctional officers would be unable to appropriately respond to an incident; for example, correctional officers may be unable to subdue inmates engaged in violent confrontation. Artus Decl. ¶¶ 57-59; Rock Decl. ¶¶ 66-68. To avoid the diminishment of staff in the yard during the extra go back period, each facility would have to hire additional correctional officers, or pay current correctional officers overtime, creating substantial fiscal concerns for the facilities. Artus Decl. ¶¶ 60-61; Rock Decl. ¶¶ 70-71. The Court finds that defendants have provided sufficient evidence to demonstrate that this alternative would have a negative impact upon prison security and the fiscal resources available to the facility, and that the impact would not be de minimis.

Plaintiff suggests that, at Clinton, inmates could be allowed to pray the Salaah "on the sectioned recreation courts." Am.Compl. ¶ 24; see also Dkt. No. 91 at 18; Am.Compl., Ex. A (plaintiff's request for reasonable accommodation). Plaintiff testified that you can become a member of a sectioned recreation court at Clinton by signing up in the sergeant's office and that members can invite anyone they want to their court, as long as there are no more than six inmates on the private court at any one time. Trans. at 40. Plaintiff argues that what goes on in these individual courts would not interfere with the rest of the yard. Id. at 39-40. At Great Meadow, plaintiff suggests that inmates could be allowed to pray on the fenced in, unused basketball court. Trans. at 75; Supp.Compl. ¶ 93. Plaintiff alleges that "the recreation yard [at Great Meadow has] enough area for one to pray his Salaat without incident, and video footage of said yard during recreation would verify this point." Supp.Compl. ¶ 93.

Plaintiff's request was denied by defendant Turner. Dkt. No. 87-12 at 8. In denying the request, defendant Turner referred to that part of DOCS Directive 4202 which states: "Congregate or group prayer may only occur in a designated religious area during a religious service or at other times authorized by the Superintendent." Id.

Defendants argue that these options are not viable because allowing inmates to pray demonstratively on the sectioned recreation courts or a fenced in, unused basketball court would lead to the same security concerns presented in the recreation yard as a whole, i.e., inmates' religious designations would be identified and staff would have diminished control over inmates praying demonstratively, leading to conflict, violent incidents, and possible loss of control over the yard. Artus Decl. ¶¶ 63, 66-67; Rock Decl. ¶¶ 72-75. The Court has already concluded, supra, that these concerns have not been sufficiently supported on the record to justify the prayer policy in place at Clinton and Great Meadow. Therefore a question of fact remains as to the feasibility of these options.

Additionally, defendant Rock states that "designation of a specific area of the recreation yard for demonstrative prayer purposes creates territorial issues between different groups of prisoners . . . These territorial issues present a serious risk to facility staff and security because they could lead to conflict between different groups of inmates." Rock Decl. ¶¶ 76-77. In the case of Great Meadow, Rock states that allowing inmates to use the fenced in, unused basketball court for demonstrative prayer would create staffing and fiscal concerns because "[a]dditional correction officers would need to be assigned to supervise the fence and the actual special area designated for demonstrative prayer. Accordingly, more staff would have to be hired or staff would need to be diverted from the main yard, potentially causing understaffing and increased risks to facility safety and security." Rock Decl. ¶¶ 78-80. Plaintiff argues that territorial issues should not be a concern because admittance to the assigned courts at Clinton or the unused basketball court at Great Meadow would only be by permission. Dkt. No. 91 at 19.

Based on the record before it, this Court cannot find as a matter of law that the pray policy in place at Clinton and Great Meadow is rationally related to legitimate penological interests or that it is the least restrictive alternative that could be offered.

2. RLUIPA

The issue under RLUIPA is whether the defendants' prayer policy at Clinton and Great Meadow is justified by a compelling state interest and whether the policy is the least restrictive method for achieving those interests.

The defendants in this case allege that there are concerns for security, as well as staffing and fiscal concerns, associated with accommodating plaintiff's request to pray demonstratively during the recreation period. It has been held that simply raising the "specter" of security is not sufficient to outweigh the inmates' interests. See Spratt v. R.I. Dep't of Corrs., 482 F.3d 33, 38-39 (1st Cir. 2007). In Spratt, the inmate wished to "preach" to inmates. Id. at 35. He had been ordained as a minister in the Universal Life Church, and the prison chaplains began allowing plaintiff to preach to inmates during weekly services. Id. Although there had been no problems with plaintiff's activities for seven years, the defendants in Spratt suddenly decided that he could no longer engage in his preaching activities. Id. at 35. The lower court dismissed the action as to claims of Constitutional violations as well as RLUIPA. Id. Spratt appealed only the denial of the RLUIPA claim. Id.

The defendants' reasoning in Spratt included allegations that allowing inmates to be in actual or perceived leadership could be a threat to security. Id. at 36-37. Spratt argued that defendants' response was exaggerated and based on speculation, offering to submit to facility supervision of his preaching activities. Id. at 37. The First Circuit found under RLUIPA that Spratt's religious exercise, which included preaching, was substantially burdened and found that the defendants' response was not the least restrictive means of achieving their compelling state interest of security. Id. at 39. The court found that, other than citing one non-relevant case, the defendants in Spratt had not met their burden of showing that having inmates in a "leadership" position endangered security, and that defendants had not shown that they had considered and rejected the efficacy of less restrictive measures before adopting the blanket ban on inmate preaching. Id. at 40-41. In making this decision, however, the court did note that RLUIPA does not require prison administrators to refute "every conceivable option in order to satisfy the least restrictive means prong" of the statutory test. Id. at 41 n. 11 (quoting Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996)

This case is not distinguishable from Spratt. Defendants here, as in Spratt, have not met their burden of showing that allowing inmates to prayer demonstratively during the recreation period endangered security. While it is certainly reasonable that defendants would want to ensure the safety and security of their inmates and correctional officers, notwithstanding these articulated concerns, as more fully discussed supra in Section V.C.1., defendants have not produced concrete evidence that the concerns are justified, but instead merely speculate as to what types of dangers might arise if an inmate is allowed to demonstratively pray in the recreation yard. Nor have defendants met their burden that their fiscal and staffing concerns amount to a compelling state interest. Moreover, even if defendants could establish a compelling state interest which would support prohibiting demonstrative prayer in the recreation yard, defendants have not demonstrated, as a matter of law, that their policy is the least restrictive means that could be employed to further that interest. In fact, plaintiff has proposed alternatives which a reasonable juror could conclude would have a de minimis impact on the facility as a whole. See supra, Section V.C.1. Conversely, however, plaintiff has not established as a matter of law that there can be no compelling governmental interest to support the policy. Accordingly, neither plaintiff nor defendants are entitled to judgment as a matter of law on the merits of plaintiff's RLUIPA claim which challenges the prayer policy at Clinton and Great Meadow.

D. Congregate Services for SHU Inmates

1. First Amendment Free Exercise

The Second Circuit has "found it well established that a prisoner's free exercise right to participate in religious services is not extinguished by his or her confinement in special housing or keeplock." Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003) (citing Salahuddin v. Coughlin, 993 F.2d at 308). Thus, in order to limit this right, DOCS must provide a legitimate penological interest.

Pursuant to DOCS Directive 4933 § 304.9, "[a]ttendance at congregate religious services will not be permitted" when an inmate is housed in SHU. See Dkt. No. 87-2 (Ex. H). Defendants contend that they have a legitimate penological interest in implementing the policy which prohibits inmates confined in SHU from attending congregate religious services. Defendant Bezio, DOCS Director of Special Housing/Inmate Disciplinary Programs, has submitted an affidavit outlining the reasons which support denying SHU inmates access to congregate religious services. Dkt. No. 87-6 ("Bezio Decl."). Inmates are assigned to SHU as a result of a disciplinary action (for their failure to comply with DOCS' rules and regulations) or to be segregated from the general population (because their presence in the general population "presents a danger to the safe, secure, and smooth operation of the facility". Id. ¶¶ 21-22. Special precautions are required to supervise inmates assigned to SHU. Id. ¶ 23. "[A]bsent special circumstances, inmates assigned to SHU are restrained at all times when they are escorted out of their cells, and extra supervision by staff is needed for SHU inmates to ensure facility safety and security." Id. ¶¶ 24-25.

PIMS, a standardized system designed to encourage good behavior by SHU inmates by providing certain privileges for good behavior, is in place at Upstate. Bezio Decl. ¶¶ 27-29. Whenever an inmate enters Upstate, he is classified as a PIMS Level I inmate. Id. ¶ 30. If an inmate is to progress from PIMS Level I to PIMS Level II, he must at a minimum have 30 days at Level I status with no disciplinary reports. Id. ¶ 31. Movement from PIMS Level II to Level III requires at a minimum that the inmate must remain at Level II for 30 days with no disciplinary reports. Id. ¶ 32. Certain procedures are in place in Upstate SHU which must be followed when a SHU inmate leaves his cell and is moved either within or outside of SHU. Id. ¶ 33; see also id. (Ex. D) Upstate Correctional Facility, Special Housing Unit Manual, Area 16 ("Area 16 SHU Manual"). Each inmate's hands are restrained before he is allowed to leave the cell and upon exiting the cell, his hand restraints are attached to a waist chain. Bezio Decl. ¶ 34. The number of correctional officers required to escort a given inmate depends on the inmate's PIMS Level as well as the number of other inmates being escorted at the same time. Id. ¶ 35; Area 16 SHU Manual. Two correctional officers are always required to escort a PIMS Level I inmate. Bezio Decl. ¶ 36. For PIMS Level II or III inmates, two correctional officers are required to escort one to three inmates and three correctional officers are required to escort four to six inmates. Bezio Decl. ¶ 37; Area 16 SHU Manual at 3. No more than six PIMS Level II or III inmates may be escorted in one group. Bezio Decl. ¶ 38; Area 16 SHU Manual at 3.

Congregate religious services at Upstate are conducted outside of SHU. Bezio Decl. ¶ 40. To attend services, a SHU inmate would need to be escorted to and from services, as set forth in the Area 16 SHU Manual, and the escort, or escorts, would have to remain with the inmate during services. Id. ¶¶ 41, 48. Upstate is staffed by about 328 correctional officers who must cover three shifts, 24 hours a day, seven days a week. Id. ¶¶ 43-45. Muslim services are conducted during the day shift; there are approximately 84 correctional officers assigned to the day shift in Upstate SHU to cover essential services for SHU inmates. Id. ¶¶ 46-47. There are about 1060 inmates assigned to Upstate SHU, and about 101 of the SHU inmates are identified as observants of Islam, therefore the staff would potentially have to restrain and escort 101 inmates to Jumu'ah services. Id. ¶¶ 42, 50-51. Additionally, if SHU inmates were allowed to attend congregate religious services, taking into account adherents of other faiths, during the course of a week, correctional officers could be required to escort all 1060 SHU inmates to various religious services. Id. ¶ 51. The number of staff required to escort and intensely supervise SHU inmates for congregate religious services would "negatively impact institutional order." Id. ¶ 54. Additionally, DOCS would be forced to hire additional correctional officers to meet the escort need or pay current staff overtime wages, which would "present substantial fiscal concerns for DOCS and place a drain on scarce human resources, especially in the current economic climate." Id. ¶ 55.

As outlined by defendant Bezio, transporting twelve PIMS Level III inmates to Jumu'ah services on a Friday afternoon would require six of the 84 day shift correctional officers to be removed from their posts to stay with the inmates for however long the services lasted. Since there are approximately 101 Muslim inmates assigned to Upstate SHU, the number of guards required as escorts for each Jumu'ah service would likely be greater. This is not even taking into account the fact that each PIMS Level I inmate would require two correctional officers as an escort for services. See Bezio Decl.

Defendant Bezio also states that, based upon his personal experience, having a large number of inmates in one area increases the possibility of disruptive behavior, therefore DOCS has established procedures to limit inmates' opportunities to gather in large numbers. Bezio Decl. ¶¶ 57-61. SHU inmates are not allowed to attend mess hall or recreation yard because of the risk that they pose to prison security, but are served meals in their cell and exercise in individual recreation areas. Id. ¶¶ 62-63. Congregate religious services are also an activity where a large number of inmates gather in one location. Id. ¶ 64. Additionally, Upstate has developed procedures to ensure that inmates who are known to be enemies are not escorted to the same area at the same time, such as to medical call-outs. Id. ¶ 65. Since known enemies may be members of the same faith, Upstate would face the choice of having known enemies escorted to the same congregate religious services (which could lead to assaults or other unusual incidents), or in the alternative, would be forced to conduct numerous services to ensure that known enemies do not attend services together. Id. ¶¶ 67-70. The first option would be a threat to facility safety and security; the second option would strain prison resources, both in terms of manpower and finances. Id. ¶¶ 67-71. Finally, Bezio states that most SHU inmates have already demonstrated that they are unable to follow prison rules, therefore allowing them to attend congregate religious services "heightens the risk that an unusual incident will occur" at the service. Id. ¶ 68.

Defendant Bezio states that large areas where inmates gather, such as the recreation yard or the mess hall, are areas where serious fights or assaults typically occur. Bezio Decl. ¶ 60.

Defendants point out that SHU inmates may still practice their religion by, among other things, praying in their cell, requesting counseling from a member of the ministerial staff, receiving religiously appropriate meals, and possessing certain religious articles and publications. Bezio Decl. ¶¶ 72-77.

Plaintiff himself admits that, although Jumu'ah is an essential duty for a Muslim, a Muslim who is prevented from attending Jumu'ah for reasons beyond his control — such as incarceration — is not considered to have sinned. Trans. at 71-72.

Since defendants have provided a legitimate penological interest to justify denying a SHU inmate the ability to attend congregate religious services, the burden shifts to plaintiff to show that the defendants' concerns are "irrational." Plaintiff points to his progression in the PIMS system from a Level I inmate to a Level III inmate as evidence that his conduct is not a threat to prison security. Supp.Compl. ¶¶ 82-83. Plaintiff's lack of disciplinary reports for a period of time may provide some evidence that he, as an individual, is not a threat to prison security. However, plaintiff has offered no evidence to overcome defendants' asserted penological interest of not straining its manpower to the point where prison security is compromised. Additionally, plaintiff admits that SHU inmates of all religions, not just Muslim SHU inmates, are denied the ability to attend their respective congregate services. Trans. at 73. Plaintiff has failed to carry his burden of establishing that defendants' policies are irrational and has pointed to no alternative which would be compatible with defendants' concerns.

Finally, plaintiff states that he "never sought mandating allowance to attend services by every SHU prisoner [but r]ather he sought . . . discretionary review and approval as given to other prisoners in segregated confinement (per Dir # 4202[J])." Dkt. No. 91 at 23; see also Supp.Compl. (Ex. L). Directive 4202(J) provides, in relevant part that "[a]n inmate in keeplock status . . . may request permission to attend regularly scheduled congregate religious services." Dkt. No. 87-2 (Ex. E). Plaintiff's argument in this regard is misplaced because, by its plain terms, DOCS Directive 4202(J) applies only to inmates in keeplock. Id.

See Webster v. Fischer, No. 9:08-CV-0071, 2010 WL 890968, at *7 n. 11 (N.D.N.Y. Mar. 9, 2010) (explaining that SHU is different than keeplock because SHU is a more restrictive confinement than keeplock).

This Court finds that the enforcement of DOCS Directive 4933 § 304.9(d) is rationally related to a valid penological interest and is the least restrictive means of serving that interest. See o'Lone, 482 U.S. 342 (prison officials did not violate inmate's right by assigning him to outside work detail that prevented his attendance at congregate religious services, because the rules relating to outside work assignments were reasonably related to legitimate penological objectives); Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) (SHU inmate may be denied the right to attend congregate religious services if based upon legitimate penological concerns); Matiyn v. Henderson, 841 F.2d 31 (2d Cir.) (plaintiff's First Amendment free exercise claim that he was prevented from attending congregate religious services is without merit because the denial was for reasons related to legitimate penological interests), cert denied, 487 U.S. 1220 (1988). Accordingly, plaintiff has not established that his right to freely exercise his religion under the First Amendment Free Exercise Clause was violated because of his inability to attend congregate religious services while housed in Upstate SHU.

2. RLUIPA

Under RLUIPA, the Court must determine whether the defendants' policy of prohibiting attendance at congregate religious services by SHU inmates is a compelling state interest and whether their policy is the least restrictive method for achieving those interests.

Based upon the record evidence the court finds that, even though defendants may be "substantially burdening" plaintiff's religion by not allowing him to attend Jumu'ah services while incarcerated in Upstate SHU, defendants' policy is the least restrictive means of furthering the compelling state interests, namely concern for prison security, as well as fiscal and staffing considerations that would dictate against allowing SHU inmates at Upstate to attend congregate religious services. See Orafan, 411 F. Supp. 2d at 160 (stating that "[f]iscal, staffing, and space considerations are part of maintaining security and preserving order") (citation omitted). Issues of safety and security are "peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Jones v. N.C. Prisoners' Labor Union, 433 U.S. 119, 128 (1977) (quoting Pell, 417 U.S. at 827). Defendants have provided substantial evidence to support their compelling state interest in prohibiting SHU inmates from congregate religious services and have also demonstrated that their policy is the least restrictive method for achieving those interests. See supra, Section V.D.1.

This Court finds that the enforcement of DOCS Directive 4933 § 304.9(d), serves a compelling governmental interest and is the least restrictive means of addressing the compelling governmental interest. Accordingly, plaintiff has not established that his free exercise rights under RLUIPA were violated because of his inability to attend congregate religious services while housed in Upstate SHU.

VI. PERSONAL INVOLVEMENT

Defendants Fischer, Leonard, and Perlman contend that plaintiff has failed to establish their personal involvement. Dkt. No. 87-4 at 34-35. "`[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. Id.; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). However, supervisory personnel may be considered "personally involved" if:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright, 21 F.3d at 501).

It is now well-settled that the failure of a supervisory official to investigate a letter of protest written by an inmate is not sufficient to show personal involvement. Smart v. Goord, 441 F. Supp. 2d 631, 643 (S.D.N.Y. 2006). The same is true if the only involvement of the supervisory official is to refer the inmate's complaint to the appropriate staff for investigation. Ortiz-Rodriguez v. N.Y. State Dep't of Corr. Servs., 491 F. Supp. 2d 342, 347 (W.D.N.Y. 2007). Additionally, "[a] position in a hierarchical chain of command, absent something more, is insufficient to support a showing of personal involvement." Shepherd v. Goord, No. 9:04-CV-655, 2008 WL 4283410, at *5 (N.D.N.Y. Sept. 16, 2008).

Plaintiff attempts to show that defendant DOCS Commissioner Brian Fischer, as a supervisory defendant, is personally responsible because he was made aware of the alleged problem but failed to remedy the situation. There is no evidence in this case that defendant Fischer was personally involved in the alleged constitutional deprivation of plaintiff's rights to freely exercise his religion. Plaintiff sent a letter, dated June 15, 2007, to defendant Fischer complaining that he was not allowed to pray Salaah in the recreation yard at Clinton. Dkt. No. 87-7 ("Fischer Decl.") (Ex. A). Fischer's staff forwarded the letter to the Deputy Commissioner of Program Services John H. Nuttall. Fischer Decl. ¶¶ 15-20; see also id. (Ex. A). The letter was then addressed by Mr. Nuttall. Fischer Decl. (Ex. B). These allegations fail to demonstrate personal involvement by defendant Fischer in plaintiff's claims that he was denied the right to freely exercise his religion. Plaintiff's remaining allegations against Fischer are that Fischer received letters of complaint from other inmates regarding similar issues raised by plaintiff in this action, but Fischer "only forwarded [those letters] to lower officials without any relief nor correction." Supp.Compl. ¶ 37. Plaintiff also seems to allege that Fischer is responsible for the policy which prohibits SHU inmates from attending congregate religious services. Supp.Compl. ¶ 87. These allegations are conclusory and unsupported by the evidence, and only suggest that Fischer is responsible for the policy because he is in a position of authority. Additionally, at his deposition, when asked "You are suing [Fischer] as an administrator of the policy?" plaintiff responded "Yes. That he didn't take any actions to correct it." Trans. at 66. Plaintiff has failed to demonstrate personal involvement by defendant Fischer in plaintiff's claims that he was denied the right to freely exercise his religion.

Plaintiff wrote to Fischer regarding his inability to pray Salaah demonstratively in the recreation yard at Clinton, yet at his deposition, he appeared to claim that defendant Fischer is responsible for all DOCS policies that implicate plaintiff's claims regarding both his right to pray and his right as a SHU inmate to attend congregate religious services. Trans. at 66.

Defendant Mark Leonard is the Director of Ministerial, Family, and Volunteer Services for DOCS. Dkt. No. 87-9 ("Leonard Decl.") ¶ 5. Plaintiff alleges that in that capacity, defendant Leonard "was responsible for and oversaw the management, operations and policies affecting religious programs" for DOCS. Supp.Compl. ¶ 39. Plaintiff sent a letter, dated December 24, 2007, to defendant Leonard "discussing the issue of accommodation to attend weekly congregate religious services (Jumu'ah)." Id. ¶ 50; see also id. (Ex. E). Leonard's staff forwarded the letter to the Assistant Director of Ministerial, Family, and Volunteer Services, Omega B. Alston. Leonard Decl. ¶¶ 6-11. The letter was then addressed by Mr. Alston, who advised plaintiff that he in turn was referring the letter to Imam Abdulkhabir, Ministerial Program Coordinator for the Muslim faith. Leonard Decl. (Ex. B). Plaintiff also alleges that Leonard is responsible for the policy which prohibits SHU inmates from attending congregate religious services. Supp.Compl. ¶ 87. These allegations are conclusory and unsupported by the evidence, and only suggest that Leonard is responsible for the policy because he is in a position of authority. Plaintiff has failed to demonstrate personal involvement by defendant Leonard in plaintiff's claims that he denied the right to freely exercise his religion.

Defendant Kenneth Perlman is the Deputy Commissioner of Program Services for DOCS. Dkt. No. 87-10 ("Perlman Decl.") ¶ 3. Plaintiff alleges that, pursuant to DOCS Directives 4200 and 4202, defendant Perlman "is responsible for the operations, directives and policies affecting religious programs." Supp.Compl. ¶ 38. Plaintiff also alleges that defendant Perlman is responsible for the policy which prohibits SHU inmates from attending congregate religious services. Supp.Compl. ¶ 87. The fact that Perlman signed DOCS Directive 4933 ( see Dkt. No. 87-2 at 141) could lead a reasonable juror to conclude that Perlman was personally involved in the promulgation of the DOCS policy which prohibits SHU inmates from attending congregate religious services. Moreover, at his deposition, plaintiff testified that "I wrote to [Perlman] directly and received correspondence from him too showing there is no correction on his part for the policies or for prohibitions." Trans. at 68. The Court cannot find as a matter or law that defendant Perlman was not personally involved in the violation of plaintiff's rights.

Accordingly, defendants' request for summary judgment on the basis of lack of personal involvement is granted at to Fischer and Leonard, and denied as to Perlman.

VII. QUALIFIED IMMUNITY

The doctrine of qualified immunity shields officials from liability from civil damages if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, ___ U.S. ___, ___, 129 S.Ct. 808, 815 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In Pearson, the Supreme Court overruled its decision in Saucier v. Katz, 533 U.S. 194 (2001), to the extent that the Court in Saucier required a specific two-step sequence for deciding qualified immunity claims. Pearson, 129 S.Ct. at 815-22.

Under Saucier, when confronted with defendants' claim of qualified immunity, the court was mandated to use a two-step procedure. 533 U.S. at 201. The first step required the court to determine whether plaintiff's facts established the violation of a constitutional right. Id. If so, the court would then decide whether the right at issue was "clearly established" at the time of the defendants' alleged conduct. Id. Decisions prior to Saucier had "suggested" that the better approach was to determine whether a constitutional right was violated at all, but Saucier turned that suggestion into a requirement. Pearson, 129 S.Ct. at 816 (citing Saucier, 533 U.S. at 201; County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998) (stating that resolution of the constitutional issue first was the "better approach").

In Pearson, the Supreme Court rejected what it referred to as Saucier's "`rigid order of battle,'" in favor of allowing the courts to exercise their sound discretion in determining which of the two prongs of the qualified immunity analysis should be addressed first. See Pearson, 129 S.Ct. at 817-818 (citing Purtell v. Mason, 527 F.3d 615, 622 (7th Cir. 2008) (referring to the Saucier standard as a "rigid order of battle")). The court in Pearson stated that the unnecessary litigation of constitutional issues is to be avoided, and there are cases in which it is "plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Pearson, 129 S. St. at 818.

A. Prayer in the recreation yard

When analyzing qualified immunity, "[f]or a right to be clearly established it `must have been recognized in a particularized rather than a general sense.'" Farid v. Ellen, 593 F.3d 233 (2d Cir. 2010) (citing and quoting Moore v. Andreno, 505 F.3d 203, 214 (2d Cir. 2007)). The analysis must therefore focus on the right in question "at the appropriate level of specificity." Id. (citing and quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). When measured against these principles, the specific question here presented is whether it was objectively reasonable for defendants to believe that plaintiff did not have a clearly established constitutional right to conduct his Salaah prayer in a demonstrative manner in the recreation yard. Although it is well-established that prisoners have a right to practice their religion while incarcerated, the Second Circuit has not yet definitively determined the boundaries of reasonableness with respect to restrictions on prayer in the prison yards.

In Shabazz v. Coughlin, 852 F.2d 697, 700-02 (2d Cir. 1988), the Second Circuit held that while an inmate's right to attend religious services in general was clearly established, the right to group prayer and prayer in the yard was not well-established for purposes of qualified immunity.

In Chatin v. Coombe, 186 F.3d 82 (2d Cir. 1999), the court held that Disciplinary Rule 105.11, prohibiting the conduct of "religious services" could not be used to discipline an individual for silent demonstrative prayer in the prison yard. However, the court simply found that the rule was unconstitutionally vague for due process purposes. Id. Because the district court decided the case on the due process claim, the court did not reach the plaintiff's First Amendment claim. See Chatin v. New York, No. 96 Civ. 420, 1998 WL 196195, at *6-8 (S.D.N.Y. Apr. 23, 1998). The court in Chatin specifically stated, however, that it was not deciding the issue of whether such conduct could be prevented by using a rule that gave inmates the required notice of what was prohibited. Id. at 89-90. The Chatin court also stated that it was not suggesting that prison officials were prevented from preventing such conduct by utilizing already existing rules that prevented disturbances or interference with others when the circumstances warranted it. Id. Thus, nothing in the Chatin decision established that an inmate has the right to pray in the recreation yard as plaintiff was attempting to do.

In McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004), the plaintiff had been disciplined for failure to obey a corrections officer's order to return his tray and cup, an order plaintiff claims was "expressly given to him by a corrections officer who knew that completion of the task would require plaintiff to abandon religious prayers in which he was then engaged." Id. at 204-05. As a result of the disciplinary hearing, plaintiff was subjected to a week-long restricted diet, resulting in his inability to break his Ramadan fast with the appropriate food. Id. at 199. District Court sua sponte dismissed the complaint; the Second Circuit reversed, stating:

When McEachin's complaint is liberally construed, two First Amendment concerns arise. First, McEachin asserts that the seven-day restrictive diet imposed upon him as discipline by the defendants impinged upon his observance of Ramadan by depriving him of properly blessed food with which to break his daily fast. In addition, McEachin alleges that this discipline was itself a product of religious discrimination by a corrections officer who intentionally ordered McEachin to return his tray and cup during McEachin's prayer, knowing that the plaintiff's beliefs would not permit him to respond to the command before he had finished making salat. If these allegations are true, an unconstitutional burden may have been placed on McEachin's free exercise rights.

Id. at 201 (footnote omitted). The McEachin court thus emphasized the allegation that the corrections officer intentionally ordered plaintiff to perform the task, knowing that obeying the order would require plaintiff to violate his religious beliefs. Id. at 204. The court observed that "[p]recedent suggests that inmates have a right not to be disciplined for refusing to perform tasks that violate their religious beliefs." Id. at 205 (citing Hayes v. Long, 72 F.3d 70 (8th Cir. 1995) (inmate disciplined for refusing to handle pork while performing kitchen duties)). The court in McEachin ultimately did not rule on this issue because it remanded the case to the district court for consideration of the First Amendment claims. McEachin does not clearly establish the right asserted by plaintiff in the case at bar.

In Withrow v. Bartlett, 15 F. Supp. 2d 292 (W.D.N.Y. 1998), the court granted summary judgment in a case in which plaintiff was disciplined for engaging in group demonstrative prayer in the prison yard and violating an officer's order to stop. Withrow and the case at bar may be distinguished from McEachin on the ground that in this case and Withrow the prohibited activity is the method of prayer, that is, a demonstrative prayer in an area of the prison where it was not authorized by the existing rules. In Withrow, the officers issuing the orders believed that the plaintiffs' religious conduct was not permitted, a belief that was supported by the DOCS Directive.

In this case, plaintiff relies heavily on Aziz v. LeFevre, 642 F.2d 1109 (2d Cir. 1981) in support of his suggested accommodation that inmates at Clinton be allowed to pray Salaah demonstratively in groups of no more than six on the sectioned recreation courts. Dkt. No. 93 at 32. In Aziz, inmates brought action challenging Clinton's policy, based upon DOCS Directive 4203(A)(3)(a), which prohibited small groups of inmates from praying their Salaah in the prison recreation yard. Aziz, 642 F.2d at 1110. The Second Circuit in Aziz did not rule on any of the issues presented, but instead remanded the case to the district court for consideration of the First Amendment claims. Aziz, 642 F.2d at 1112. In doing so, the Aziz Court stated that it "was reluctant to decide the constitutional question prematurely and unnecessarily, and indeed we have well in mind the Supreme Court's recent admonitions to us not to do so." Id. at 1112. The Aziz Court further stated, "we decline to reach the difficult constitutional question presented." Id. On remand, the District Court never reached the question presented in Aziz. After the remand, the case was ultimately dismissed, without resolution, in the District Court for failure of the parties to prosecute the action. See Dkt. No. 91-1 at 5, Order referenced at docket entry 70. Contrary to plaintiff's assertions, Aziz does not clearly establish the right asserted by plaintiff in the case at bar.

Then DOCS Directive 4203(A)(3)(a) provided that "[i]nmates will be allowed to pray only in the privacy of their own living quarters, during a religious service or in an area of the facility that has been designated for religious worship." Aziz, 642 F.2d at 1110. This directive differs from DOCS Directive 4202 in that, notably absent from 4203 is the language giving the superintendent of each facility to determine where, at his or her facility, inmates will be allowed to conduct demonstrative prayer, whether individually or as a group. The Second Circuit in Aziz seemed concerned that the ban on prayer in the recreation yard was not being followed uniformly at every DOCS' facility and "hence [making it] not a `policy' at all." Aziz, 642 F.2d at 1111. This concern would not be relevant to DOCS Directive 4202 as the Directive makes clear that the actual "policy" is put in place by each superintendent.

Aziz merely noted that "individual, silent prayer [was] permitted in the segmented areas of the prison yard known as `courts.'" Aziz, 642 F.2d at 1112.

The Court previously provided plaintiff with a copy of the docket report for the Aziz action. See Dkt. No. 91-1 at 2-5. Since that time, the Court was able to obtain from the Federal Records Center a copy of the Order referenced therein at docket number 70. That Order closed the action without disposition for the parties' failure to prosecute.

There has also been disagreement among New York State courts as to whether prohibiting demonstrative prayer in the recreation yard is a violation of religious rights. Compare Jackson v. Coughlin, 204 A.D.2d 939 (3rd Dep't 1994) (finding that facility policy that prohibits Muslim inmates from praying demonstratively in the recreation yard does not violate plaintiff's right to religious freedom under the New York Constitution or Correction Law § 610) with Matter of Abudullah, 115 Misc. 2d 105, 108 (Sup.Ct. Wyo.Co. 1982) (finding that the justification that demonstrative prayer would be disruptive was insufficient reason to curtail an inmate's right to freely exercise his religion, but noting the "narrowness of this ruling"), aff'd 96 A.D.2d 742 (4th Dep't 1983).

The court noted that there might be merit to some of defendants' other concerns. Id.

Thus, it still does not appear well established that an inmate has the right to pray demonstratively in the recreation yard. This court is not aware of any case at or before the time relevant to this action that would "clearly establish" that plaintiff had a right to pray in a demonstrative manner either alone, or together with six other inmates in a sectioned-off area of the recreation yard.

Additionally, DOCS Directive 4202, as implemented by each superintendent at Clinton and Great Meadow, supported defendants' actions; defendants could not reasonably have believed that their action in denying plaintiff the right to pray demonstratively, either individually or in a small group during the recreation period was in violation of plaintiff's constitutional rights. Thus, based on the facts in this case, any claim for damages would be barred by the doctrine of qualified immunity even if ultimately plaintiff's First Amendment rights had been infringed.

The qualified immunity would apply to plaintiff's RLUIPA claim. See Orafan v. Goord, 411 F. Supp. 2d 153, 158 (N.D.N.Y. 2006), vacated and remanded on other grounds sub nom. Orafan v. Rashid, 249 Fed. Appx. 217 (2d Cir. 2007). In any event, it has been held that a RLUIPA plaintiff may not obtain monetary damages under the statute either from defendants in their individual or official capacities. Pugh v. Goord, 571 F. Supp. 2d 477, 506-09. Thus, plaintiff in this case would not be able to obtain money damages from defendants.

The Fifth Circuit has recently held that RLUIPA affords inmates the ability to obtain declaratory and injunctive relief against a "government," but does not provide for damages against either a defendant in his individual capacity or the state, including defendants in their "official capacities." Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326-331 (5th Cir. 2009) (discussing cases, including those circuits that have allowed such actions, however, noting that where such a claim is allowed individually, the qualified immunity analysis would apply) ( cert. granted in part, 130 S.Ct. 3319).

Qualified immunity would not, however, bar any claim for equitable relief. See Pearson, 129 S.Ct. at 822 (no qualified immunity in cases in which injunctive relief is sought instead of or in addition to damages); Salahuddin, 467 F.3d at 273 (qualified immunity is an affirmative defense to monetary liability). Plaintiff's only request for equitable relief is contained in his amended complaint against Clinton Superintendent Artus and Clinton Deputy Superintendent Turner. Am.Compl. at 10; compare Supp.Compl. at 14 (plaintiff requests only compensatory, punitive and monetary damages in the supplemental complaint). Plaintiff requests that defendants Artus and Turner "cease enforcing the policy" at Clinton that prohibits anything but silent, non-demonstrative prayer in the recreation yard at Clinton. However, plaintiff is no longer incarcerated at Clinton. An inmate's transfer from a facility generally renders moot any claims for declaratory and injunctive relief against officials of that facility. Salahuddin, 467 F.2d at 272 (citing Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (per curiam); Young v. Coughlin, 886 F.2d 567, 568 n. 1 (2d Cir. 1989); Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976)). Because plaintiff is no longer incarcerated at Clinton, his claims against Artus and Turner for declaratory and injunctive relief are dismissed as moot. In any event, even if the Court were to construe plaintiff's supplemental complaint as seeking equitable relief, plaintiff is no longer at either Clinton or Great Meadow, therefore his claims that he was denied the ability to pray demonstratively during recreation at those facilities are also moot for purposes of any injunctive or declaratory relief.

B. Congregate Services for SHU inmates

Inasmuch as this Court finds that plaintiff has failed to prove any constitutional violation with respect to his inability to attend congregate religious services while housed in Upstate SHU, defendants are entitled to summary judgment on this ground. Dorcely v. Wyandanch Union Free Sch. Dist., 665 F. Supp. 2d 178, 219 (E.D.N.Y. 2009) (quoting Cathedral Church of the Intercessor v. Inc. Vill. of Malverne, 353 F. Supp. 2d 375, 391 (E.D.N.Y. 2005)) ("Without an underlying constitutional violation, qualified immunity cannot attach.").

VIII. MOTIONS FOR INJUNCTIVE RELIEF

Plaintiff filed a first motion for injunctive relief, asking for a temporary restraining order and preliminary injunction "enjoining defendants from enforcing their blanketed ban from religious services against SHU-prisoners upon plaintiff and directing defendants to permit plaintiff to attend his designated congregate religious services" of Jumu'ah on Friday afternoons plus additional services held during Ramadan. Dkt. No. 105. At the time plaintiff filed this motion, he was incarcerated in SHU at Coxsackie Correctional Facility ("Coxsackie"). Id. Defendants opposed the motion as it was not related to the claims in the underlying action, which claims occurred while plaintiff was incarcerated at Upstate, Clinton, and Great Meadow. Dkt. No. 106. Defendants also argued that, in any event, plaintiff's underlying claims were without merit. Id. Plaintiff has recently requested that the Court "strike" his first motion (Dkt. No. 105) for injunctive relief and, in light of changed circumstances (which include his transfer to Upstate SHU) replace it with his recently-filed second motion (Dkt. No. 109) for a temporary restraining order and preliminary injunction. Dkt. No. 109 at 2-3. In light of plaintiff's request to withdraw his first motion, plaintiff's first motion for a temporary restraining order and preliminary injunction (Dkt. No. 105) is DENIED as moot.

Turning to plaintiff's second motion for a temporary restraining order and preliminary injunctive relief, plaintiff advises that he has now been transferred to Upstate SHU and is again being denied the ability to attend congregate religious services. Dkt. No. 109. Plaintiff requests a court order directing defendants "to permit and accommodate plaintiff's attendance" at congregate religious services while he is incarcerated in SHU at Upstate. Dkt. No. 109-1 at 5.

A preliminary injunction is an "extraordinary remedy that should not be granted as a routine matter." Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986). In most cases, to warrant the issuance of a preliminary injunction, a movant must show (a) irreparable harm and (b) either (1) a likelihood of success on the merits of the claim or (2) sufficiently serious questions going to the merits, and a balance of hardships tipping decidedly in favor of the moving party. D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006) (quotation omitted). "The purpose of issuing a preliminary injunction is to `preserve the status quo and prevent irreparable harm until the court has an opportunity to rule on the . . . merits.'" Candelaria v. Baker, No. 00-CV-0912E, 2006 WL 618576, at *3 (W.D.N.Y. Mar. 10, 2006) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)). The same standards govern consideration of an application for a temporary restraining order. Perri v. Bloomberg, No. 06-CV-403, 2008 WL 2944642, at * 2 (E.D.N.Y. Jul. 31, 2008) (citing Therrien v. Martin, No. 3:07-cv-1285 (JCH), 2007 WL 3102181, at *5 (D.Conn. Oct. 19, 2007)).

The Court has already determined that DOCS Directive 4933 is constitutional in its requirement that a SHU inmate may not attend congregate religious services as it has a valid, rational connection to the legitimate penological interest of security, staffing, and the preservation of scarce fiscal resources (or in the case of RLUIPA, a compelling state interest of maintaining security, including adequate staffing levels and fiscal resources). Therefore, the second request for a temporary restraining order and preliminary injunction (Dkt. No. 109) is denied.

IX. CONCLUSION

Based on a thorough review of a very extensive record, this court finds as follows.

Genuine issues of material fact remain as to whether (1) DOCS Directive 4202, as specifically implemented at Clinton and Great Meadow is rationally related to a valid penological interest, or in the case of RLUIPA, a compelling governmental interest, or (2) the alternatives offered by the defendants are the least restrictive alternatives available that would serve those interests. However, because the right to pray demonstratively in the prison recreation yard was not clearly established at the time of the events alleged herein, defendants are nonetheless entitled to qualified immunity in this regard with respect to monetary damages. Moreover, plaintiff's requests for injunctive and declaratory relief are moot.

DOCS Directive 4933 is constitutional in its requirement that a SHU inmate may not attend congregate religious services as it has a valid, rational connection to the legitimate penological interest of security, staffing, and the preservation of scarce fiscal resources. The Directive also does not violate RLUIPA because there is a compelling governmental interest in maintaining the security, fiscal soundness, and staffing levels of the correctional facility. Also, DOCS Directive 4933 is the least restrictive means of furthering those interests.

Accordingly, defendants' motion for summary judgment (Dkt. No. 87) is GRANTED in all respects and plaintiff's motion for partial summary judgment (Dkt. No. 91) is DENIED. Additionally, for the reasons set forth above, plaintiff's motions (Dkt. Nos. 105, 109) for a temporary restraining order and a preliminary injunction are DENIED.

Accordingly, it is hereby

ORDERED that all claims brought pursuant to (1) the First Amendment Establishment Clause; (2) the Equal Protection Clause; (3) RFRA; and (4) state law are dismissed with prejudice; and it is further ORDERED that defendants' motion for summary judgment (Dkt. No. 87) is GRANTED in its entirety and all claims and defendants in both the amended complaint and the supplemental complaint are dismissed with prejudice; and it is further

ORDERED that plaintiff's motion for partial summary judgment (Dkt. No. 93) is DENIED; and it is further

ORDERED that plaintiff's motions (Dkt. Nos. 105 and 109) for a temporary restraining order and a preliminary injunction are DENIED for the reasons set forth above; and it is further

ORDERED that the Clerk is directed to serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules; and it is further

ORDERED that pursuant to Local Rule 72.3, the parties are advised that the referral to a Magistrate Judge has been RESCINDED, as such, any appeal taken from this Memorandum-Decision and Order will be to the Court of Appeals for the Second Circuit.

IT IS SO ORDERED.

Date: September 30, 2010