2000 WL 34474965
2000 WL 34474965 (S.D.N.Y.) (Trial Pleading) United States District Court, S.D. New York. Rashaad MARRIA, Plaintiff, v.
Dr. Raymond BROADDUS, Deputy Commissioner of Programs for the Department of Correctional Services; G. Blaetz, Chairperson of the Green Haven Correctional Facility Media Review Committee; Warith Deen UMAR, Coordinator for Islamic Affairs for the Department of Correctional Services; Glenn Goord, Commissioner of the
Department of Correctional Services, Defendants. No. 97 Civ. 8297 (NRB). November 3, 2000.
Amended Complaint
Plaintiff Rashaad Marria, by his undersigned attorney, as and for his Amended Complaint alleges the following on personal knowledge or on information and belief.
NATURE OF THE ACTION 1. This action arises from Defendants’ policies, customs and practices, which have deprived and continue to deprive Plaintiff of the ability to practice his faith in violation of his constitutional and statutory rights. Plaintiff seeks declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983, the First and Fourteenth Amendments to the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000, the New York State Constitution, and state law.
JURISDICTION AND VENUE 2. This Court has jurisdiction over the federal claims in this action pursuant to 28 U.S.C. §.1343 and 28 U.S.C. § 1331 and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367.
3. Venue properly lies in the Southern District of New York pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to Plaintiff’s claims occurred in this District.
THE PARTIES 4. Plaintiff is and has been an inmate in the care and custody of the New York State Department of Correctional Services (“DOCS”) since June 1995. From December 1995 to March 1996, Plaintiff was an inmate at the Great Meadows Correctional Facility (“Great Meadows”) in Washington County, New York. From March 1996 to June 1996, Plaintiff was an inmate at Green Haven Correctional Facility (“Green Haven”) in Dutchess County, New York, and from June 1996 to September 1997, he was housed at Elmira Correctional Facility (“Elmira”) in Chemung County, New York. From September 1997 to the present, Plaintiff has been housed at Shawangunk Correctional Facility (“Shawangunk”) in Ulster County, New York.
5. Defendant Glenn S. Goord (“Goord”) is the Commissioner of DOCS. He is sued in his individual and official capacities.
6. Defendant Dr. Raymond Broaddus (“Broaddus”) was the Deputy Commissioner of Programs at DOCS at all times relevant to this action. He is sued in his individual and official capacities.

2000 WL 34474965
7. Defendant G. Blaetz (“Blaetz”) is the Media Review Committee Chairperson at Green Haven. She is sued in her individual and official capacities.
8. Defendant Warith Deen Umar (“Umar”) was the Coordinator for Islamic Affairs at DOCS at all times relevant to this action. He is sued in his individual and official capacities.
FACTUAL ALLEGATIONS
9. Defendants at all times relevant to this action were and are acting under color of state law.
10. DOCS is a state agency. DOCS receives federal assistance.
The Nation of Gods and Earths
11. The Nation of Gods and Earths (“Nation”) is legally a religion.
12. The Nation began in 1964 when Allah, Clarence 13X Smith, left the Nation of Islam (“N.O.I.”) and founded the Nation of Gods and Earths.
13. The Nation shares some tenets with the N.O.I., including that the white man is the devil and that the white man was made through a selective breeding process called grafting.
14. The Nation also has many tenets distinct from the N.O.I., including the Nation’s belief that black men are Gods and that black women are Earths. The Nation’s way of life and culture is predicated on a belief in God.
15. The Nation mandates that its members study and learn lessons, including the Book of Life, which comprises the Supreme Mathematics, the Supreme Alphabet and the 120 Degrees, on a daily basis. The study of these lessons is required to learn how to live a righteous life.
16. The 120 Degrees are lessons arranged in a question-and-answer format that represent the teachings of Master Fard Muhammad and Elijah Muhammad.
17. The Supreme Mathematics and the Supreme Alphabet were given to the Five Percenters by their Father Allah, Clarence 13X, as a way to understand Islam and man’s relationship to the universe. The Supreme Mathematics and Supreme Alphabet are a form of numerology whereby the universe and Islam are given meaning through the use of the Mathematics and Alphabet system. Pursuant to the Supreme Mathematics, each number has meaning. For example, the number one represents knowledge; the number two represents wisdom; and the number three represents understanding, the product of knowledge and wisdom. The Supreme Mathematics are calibrated with the Supreme Alphabet. For example, “Allah” is the beginning of the alphabet and is coextensive with the number one.
18. The Nation mandates attendance at rallies and “Parliaments,” which are fundamental gatherings prescribed by Father Allah. Parliaments take place on the last Sunday of each month.
19. Additionally, members of the Nation observe holy days, including the birthdays of Master Fard Muhammad and Elijah Muhammad. Members of the Nation fast on the anniversary of the birth and of the death of Clarence 13X.
20. The Nation has a cultural emblem commonly referred to as a Universal Flag that represents the Nation of Gods and Earths. It is comprised of a five-pointed star, symbolizing, among other things, the black child; a crescent moon, symbolizing, among other things, the black woman; the number “7”, symbolizing, among other things, the Original Man; and an eight-pointed star, symbolizing, among other things, the eight lessons contained in the 120 Degrees. The words “In the Name of Allah” encircle the emblem. Members of the Nation gain much understanding of Islam and the universe by studying and implementing the symbols in the flag in conjunction with the Supreme Mathematics and the Supreme Alphabet.

2000 WL 34474965
21. In addition to the 120 Degrees and formal lessons, many members of the Nation who have gained knowledge and understanding write their own “plus” lessons in which they expound on their understanding of the Nation’s teachings. These lessons are shared with other members of the Nation.
22. Members of the Nation are taught through their lessons to teach their beliefs to others. This conforms with the definition of the Five Percent.
23. The Nation believes that all poor righteous teachers fall within the Five Percent. The Five Percent teach freedom, justice, and equality to all human families of the planet earth and do not believe in the teachings of the Ten Percent. The Nation teaches that the Ten Percent are those who live off of the labor of the remaining Eighty-Five percent, the poor and unconscious masses who the Ten Percent enslave and mollify with their Eurocentric belief system in a “mystery God” that they cannot see.
24. Therefore, while members of the Nation are commonly referred to as “Five Percenters,” membership in the Five Percent is broader than the Nation’s membership and encompasses all of the poor righteous teachers who struggle against the Ten Percent, including all Muslims.
25. The Nation is legally a religion, not a gang. The Nation does not partake in unlawful activities.
The Five Percenter Newspaper 26. Clarence 13X began the Allah Youth Center in Mecca, which is located in Harlem, New York, with the assistance of the City of New York and the Urban League.
27. It is from the Allah Youth Center in Mecca that The Five Percenter newspaper is published. This newspaper contains current events relevant to the Nation of Gods and Earths, information about community activities, letters to the editor, editorials, and important Five Percenter lessons, including teachings from the 120 Degrees and the Supreme Mathematics and Supreme Alphabet.
Plaintiff’s Membership in the Nation of Gods and Earth 28. Plaintiff is a member of the Nation.
29. He has been a member of the Nation since August 1994.
30. Plaintiff sincerely holds the beliefs described in paragraphs 11 through 25.
31. Plaintiff’s beliefs and way of life as a member of the Nation hold the same significance to him that Christianity does to an observant Christian, or that Judaism does to an observant Jew.
32. Plaintiff observes the holy days.
33. Plaintiff studies the lessons he has available to him, to which he has access only as a result of this pending lawsuit, on a daily basis.
34. Plaintiff needs access to the Five Percenter lessons, Supreme Mathematics, Supreme Alphabet, and 120 Degrees, and other teachings specific to the Nation, including The Five Percenter newspaper, to continue to grow and prosper in his way of life. There is no substitute for the lessons that these Five Percenter materials provide. Plaintiff has been denied access to all of these materials by DOCS officials.
35. The parties to this action have stipulated that prison officials will deny Plaintiff access to the Five Percenter newspaper at any correctional facility operated by DOCS where Plaintiff may be housed. (See Stipulation and Order of Dec. 17, 1999,

2000 WL 34474965
attached hereto as Exhibit A.)
36. Because of the restrictions DOCS and DOCS’ officials placed on activities concerning Five Percenters, Plaintiff is not permitted to actively communicate with other members of the Nation about Five Percenter activities, nor is he permitted to attend the rallies and Parliaments prescribed by the Nation’s teachings.
The Five Percenter Literature Sent to Plaintiff Through the Mail During His Incarceration
37. In March 1996, while incarcerated at Great Meadows, Plaintiff submitted a Disbursement Request to be paid to the Allah School in Mecca in order to obtain a subscription to The Five Percenter newspaper. This disbursement was approved by Great Meadows officials.
38. Plaintiff was transferred to Green Haven Correctional Facility in March 1996 and his subscription to The Five Percenter newspaper followed him. He received at least one issue while at Green Haven.
39. On March 27, 1996, while at Green Haven, Plaintiff received a Referral Notice stating that the March 1996 issue of The Five Percenter addressed to him arrived at the facility and was being held by the Media Review Committee. The notice stated that he could submit a written statement in support of his receiving the publication to Defendant G. Blaetz, Chairperson of the Facility Media Review Committee. The notice further advised that this needed to be done promptly, as the decision of whether or not to grant a prisoner access to his materials usually must be reached within ten working days of the notice.
40. Plaintiff promptly sent a response to the Media Review Committee.
41. On April 1, 1996, Plaintiff received a letter from Defendant Blaetz stating that The Five Percenter newspaper had been sent to the Coordinator for Islamic Affairs, but Plaintiff was not given his address or contact information.
42. Plaintiff received another Referral Notice dated April 25, 1996 that informed him that the April 1996 issue of The Five Percenter addressed to him was being held for review by the Media Review Committee and that he could submit a written statement to Defendant Blaetz in support of his receipt of the publication. The notice again advised Plaintiff that this would need to be done promptly since the Committee usually must reach a decision within ten working days of the date of the notice.
43. Plaintiff promptly responded to the Referral Notice and then received another notice stating that his Five Percenter newspaper had been sent to the Coordinator of Islamic Affairs.
44. Because Plaintiff did not have any contact information for the Coordinator for Islamic Affairs, he wrote to Commissioner Coombe explaining the events that transpired around his March and April 1996 issues of The Five Percenter and requesting his assistance, including an explanation as to why the ten-day Media Review Process was taking longer than ten days. Plaintiff also requested the address of the Coordinator for Islamic Affairs.
45. In June 1996, Defendant Broaddus, then Deputy Commissioner for Program Services, responded to Plaintiff’s letter to Commissioner Coombe. Defendant Goord, who was Acting Commissioner at the time, had referred Plaintiff’s letter to Broaddus. Defendant Broaddus’s response to Plaintiff stated that a member of his staff investigated Plaintiff’s complaint and determined that, pursuant to Muhammad v. Coughlin, all Five Percenter publications had to be sent to the Coordinator for Islamic Affairs. Broaddus’s letter further stated that the ten-day time limit for review of publications set forth in DOCS Directive 4572 was suspended in these instances.
46. Plaintiff was at Elmira when he received the letter from Defendant Broaddus.
47. Since Defendant Broaddus did not supply Plaintiff with the Coordinator for Islamic Affairs’ address, Plaintiff asked other inmates for the address. Upon learning the address, Plaintiff sent Defendant Umar, then the Coordinator for Islamic Affairs, a letter concerning the status of his Five Percenter newspapers. Defendant Umar never responded to this letter.

2000 WL 34474965
48. During this entire time period, Plaintiff believed his Five Percenter newspapers were in the Media Review Process, but that a decision was delayed because additional members of the Media Review Committee, including Defendant Umar, were reviewing the newspapers. Defendant Broaddus’s letter led Plaintiff to believe that the standard procedure for dealing with The Five Percenter newspaper was to send it to the Media Review Committee which included, pursuant to Muhammad v. Coughlin, sending it to the Coordinator for Islamic Affairs, and that because of this procedure, the response from the Media Review Committee would take longer than ten days.
49. Plaintiff was never informed as to what happened to his March and April 1996 editions of The Five Percenter.
50. Plaintiff was never given the opportunity to determine the disposition of either of these Five Percenter newspapers. In direct contradiction of 7 NYCRR Section 712.1-712.3 and of DOCS Directives 4422, 4572, and 4910, Plaintiff was never given the opportunity to have the objectionable portions of his newspapers redacted, or to have them sent to someone outside the facility at his own expense, or to have them destroyed.
51. At Elmira, Plaintiff again began receiving his subscription to The Five Percenter newspaper and received approximately four or five copies there.
52. While Plaintiff received several copies of The Five Percenter newspaper at Elmira, the June 1996 issue was withheld from him for review by the Facility Media Review Committee.
53. The Media Review Committee determined that the June 1996 issue was inconsistent with the Media Review guidelines and thus did not give it to Plaintiff. He was informed that he could appeal this decision, consistent with Media Review Directive 4572.
54. After the June 1996 issue was withheld at Elmira, Plaintiff did receive additional issues of The Five Percenter at Elmira.
55. Additionally, while at Shawangunk, as well as at other facilities, Plaintiff’s cell was searched and correctional officers examined Plaintiff’s Five Percenter literature, including copies of The Five Percenter newspaper, which has a banner proclaiming its name in largepoint type. These officers did not confiscate the literature or give Plaintiff tickets for having it in his possession.
FIRST CAUSE OF ACTION
FREE EXERCISE OF RELIGION AND OF ASSEMBLY AS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, PURSUANT TO 42 U.S.C. § 1983,
AS AGAINST DEFENDANTS
56. Plaintiff repeats and realleges paragraphs 1 to 55 as though fully set forth herein.
57. The policies, customs and practices in which Defendants engage under color of State law have deprived and continue to deprive Plaintiff of the right to free exercise of religion as secured to him by the First and Fourteenth Amendments to the United States Constitution.
58. As a result of this violation, Plaintiff has endured great and irreparable loss, damage and injury. Unless this Court orders Defendants to provide Plaintiff with access to The Five Percenter newspaper and other Five Percenter literature and to allow Plaintiff to congregate with other members of the Nation, Plaintiff will continue to suffer irreparable harm.
SECOND CAUSE OF ACTION
FREE EXERCISE OF RELIGION AS PROVIDED FOR BY THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000, 42 U.S.C. § 2000cc, AS AGAINST DEFENDANTS

2000 WL 34474965
59. Plaintiff repeats and realleges paragraphs 1 to 58 as though fully set forth herein. 60. The policies, customs and practices in which Defendants engage under color of State law impose a substantial burden on Plaintiff’s religious exercise in violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000-cc. 61. As a result of this violation, Plaintiff has endured great and irreparable loss, damage and injury. Unless this Court orders Defendants to provide Plaintiff with access to The Five Percenter newspaper and other Five Percenter literature and to allow Plaintiff to congregate with other members of the Nation, Plaintiff will continue to suffer irreparable harm.
THIRD CAUSE OF ACTION
FREEDOM OF EXPRESSION AS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, PURSUANT TO 42 U.S.C. § 1983, AS AGAINST DEFENDANTS
62. Plaintiff repeats and realleges paragraphs 1 to 61 as though fully set forth herein. 63. The policies, customs and practices in which Defendants engage under color of State law deprive Plaintiff of the right to free speech as secured to him by the First and Fourteenth Amendments to the United States Constitution. 64. As a result of this violation, Plaintiff has endured great and irreparable loss, damage and injury. Unless this Court orders Defendants to provide Plaintiff with access to The Five Percenter newspaper and other Five Percenter literature, Plaintiff will continue to suffer irreparable harm.
FOURTH CAUSE OF ACTION
DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, PURSUANT TO 42 U.S.C. § 1983, AGAINST DEFENDANTS
65. Plaintiff repeats and realleges paragraphs 1 to 64 as though fully set forth herein. 66. Under color of State law, Defendants, by their policies, customs, practices and omissions, have denied Plaintiff his Fourteenth Amendment rights by depriving Plaintiff of his property without due process. 67. As a result of Defendants’ actions and omissions, Plaintiff has endured great and irreparable loss, damage and injury. Unless this Court orders Defendants to provide Plaintiff with access to The Five Percenter newspaper and other Five Percenter literature, Plaintiff will continue to suffer irreparable harm.
FIFTH CAUSE OF ACTION
FREE EXERCISE OF RELIGION AS PROVIDED FOR BY THE NEW YORK STATE CONSTITUTION, ARTICLE I, SECTION 3 AND NEW YORK CORRECTIONAL LAW SECTION 610 AS AGAINST DEFENDANTS 68. Plaintiff repeats and realleges paragraphs 1 to 67 as though fully set forth herein. 69. Defendants’ conduct and policies deprive Plaintiff of his right to free exercise of religion as secured to him by Article I, Section 3 of the New York State Constitution and Section 610 of the New York Correctional Law. 70. As a result of this violation, Plaintiff has endured and continues to endure great and irreparable loss, damage, and injury.

2000 WL 34474965

Unless this Court orders Defendants to provide Plaintiff with access to The Five Percenter newspaper and other Five Percenter literature, and to allow Plaintiff to congregate with other members of the Nation, Plaintiff will continue to suffer irreparable harm.

71. Plaintiff demands a trial by jury.

JURY DEMAND

PRAYER FOR RELIEF 72. Plaintiff seeks judgment:
a. declaring that Defendants’ actions and omissions violated Plaintiff’s rights under the First and Fourteenth Amendments to the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000, Article I Section 3 of the New York State Constitution and Section 610 of the New York Correctional Law;
b. enjoining Defendants, preliminarily and permanently, from continuing to deny Plaintiff access to Five Percenter materials and the right to congregate with fellow members of the Nation of Gods and Earths;
c. awarding Plaintiff compensatory damages jointly and severally from each Defendant;
d. awarding Plaintiff punitive damages from each Defendant;
e. awarding Plaintiff attorney’s fees as well as costs and disbursements incurred in this action; and
f. granting such other and further relief as the Court may deem just and proper.

 
 200 F.Supp.2d 280 (2002)
Rashaad MARRIA, Plaintiff, v.
Dr. Raymond BROADDUS, Deputy Commissioner of Programs; G. Blaetz, Chairperson of Green Haven Correctional Facility Media Review Committee; Warith Deen Umar, Coordinator for Islamic Affairs; and Glen Goord, Commissioner of the New York State Department of Corrections,
Defendants.
No. 97 CIV. 8297(NRB).
United States District Court, S.D. New York.
March 27, 2002.
281*281 282*282 Rashaad Marria, Wallkill, NY, pro se.
Amy I. Kroe, Sullivan & Cromwell, Laurent Sacharoff, Elise S. Zealand, New York City, for Rashaad Marria.
Stephanie Vullo, Dennis C. Vacco, Attorney General of the State of New York, Alan R. Kusinitz, Eliot Spitzer, Attorney General of the State of New York, for Dr. Raymond Broaddus, G. Blaetz, Warith Deen Umar and Glenn Goord.
MEMORANDUM AND ORDER
BUCHWALD, District Judge.
Plaintiff, Rashaad Marria ("plaintiff" or "Marria"), has been an inmate in the custody of the New York State Department of Correctional Services ("DOCS") since June 1995. For the duration of his incarceration, plaintiff has been a member of the Nation of Gods and Earths ("Nation"), also referred to as the Five Percenters, the Five Percent, and the Five Percent Nation. Defendants are DOCS employees sued in their individual and official capacities: Defendant Glenn S. Goord ("Goord") is the Commissioner of DOCS; defendant Dr. Raymond Broaddus ("Broaddus") was the Deputy Commissioner for Programs Services of DOCS at all times relevant to this action; defendant G. Blaetz ("Blaetz") is a Senior Counselor and the Media Review Committee Chairperson at DOCS' Green Haven Correctional Facility ("Green Haven"); and defendant Warith Deen Umar ("Umar") was the Coordinator for Islamic Affairs at DOCS at all times relevant to this action (collectively, "defendants" or "DOCS"). Marria challenges DOCS' policy disallowing his receipt of Nation literature, including the newspaper The Five Percenter, and denying his request that he be allowed to assemble with other members of this group. He brings this action for declaratory and injunctive relief as well as monetary damages pursuant to 42 U.S.C. § 1983, the First and Fourteenth Amendments to the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), the New York State Constitution, and

state law. Defendants have moved for summary judgment on all claims and for the exclusion of the testimony and report of plaintiff's expert, Toni Bair ("Bair Report"). Plaintiff moves to exclude the report of defendants' expert, George Camp ("Camp Report").
For the reasons stated below, defendants' motion for summary judgment is denied on plaintiff's First Amendment and RLUIPA claims, and plaintiff's due process claim is dismissed on grounds of qualified immunity. Further, defendants' motion to exclude the Bair Report is denied, and plaintiff's motion to exclude the Camp Report is granted.
BACKGROUND[1]
In August of 1994, while incarcerated at Rikers Island, plaintiff became a member of the Nation of Gods and Earths ("the Nation"), or the Five Percenters as they are commonly called.[2] See Marria Decl. 283*283 ¶ 5; Pl.'s 56.1 Stmt. ¶ 1. As plaintiff describes the Nation, it is "a group of individuals who share a common way of life and culture predicated on a belief in God." See Marria Decl. ¶ 7. The Nation was founded more than thirty years ago by Clarence 13X Smith, who left the Nation of Islam ("NOI")[3] and, with the assistance of the City of New York and the Urban League, began the Allah Youth Center in Mecca of Harlem, New York ("Allah Youth Center"). See Blocker Decl. ¶ 7; Zealand Decl. Ex. M (history of Nation); Ex. N (article about Nation). The doctrine of Nation members is based upon the teachings of the Koran and the Bible, as well as the 120 Degrees, the Supreme Alphabet, and the Supreme Mathematics[4]. See Marria Decl. ¶¶ 13-14. Plaintiff asserts that to engage in violent or disruptive activities within the DOCS system goes against the teachings of the Nation, which focus largely on education, self-improvement, self-worth, and responsibility. See Pl.'s 56.1 Stmt. ¶¶ 2-3. Plaintiff has submitted the declarations of numerous Nation members, living both within and outside the DOCS system, asserting that the Nation is not a gang and does not promote violence. See Barnes Decl., Williams Decl. (asserting that Five Percenters are not a gang and do not engage in gang like activities); Jones Decl. (same); Buford Decl. (same); Clausen Decl. (same); Khalifah 284*284 Decl. (same); Pittman Decl. (asserting that the Nation is not a gang and that he has never been retaliated against in prison for ending his association with the Nation); and Lake Aff. (same).
Not surprisingly, DOCS' characterization of the Five Percenters[5] is drastically different from plaintiff's. "DOCS deems incarcerated Five Percenters an organized threat to the safety, order and security of their prison facilities." Defs.' 56.1 Stmt. ¶ 10. In support of its classification of the Five Percenters as a security threat group, DOCS has submitted such evidence as affidavits from DOCS personnel, internal memoranda and notes by DOCS personnel and inmates discussing Five Percenters, unusual incident and separatee reports noting the involvement of Five Percenters, and information characterizing Five Percenters as a gang from other corrections departments such as the New York City and New Jersey departments of corrections. See Artus Decl. Ex. F, H, J, K, M, N, and O; Zimpfer Decl.; Dubray Decl. DOCS has also submitted affidavits from former Five Percenters, who describe the group as a hierarchical gang headed by elders, the members of which extort and steal from other inmates and carry out violent acts using codes derived from the Supreme Alphabet and Mathematics. See S____ Decl.; H____ Decl.
DOCS' justification for their ban on literature and assembly of Five Percenters stems from their internal policy adopting a non-recognition strategy for security threat group

management. DOCS' position is that the Five Percenters are a gang and a threat to the internal management of DOCS' prisons. The non-recognition strategy is designed to diminish the power of the Five Percenters by refusing to legitimize their existence. See Defs.' Mot. at 2-9. DOCS argues that allowing Five Percenters to assemble and receive group literature would legitimize the status of the Five Percenters and interfere with DOCS' management of a security threat group. See id.
One piece of literature specifically at issue in this case is The Five Percenter, a newspaper published each month by the Allah Youth Center. It contains articles about current events relevant to the Nation, information about community activities, letters to the editor, editorials, and Five Percenter lessons, including teachings from the 120 Degrees, the Supreme Alphabet, and the Supreme Mathematics. Plaintiff asserts that members of the Nation are required to study these lessons on a daily basis in order to understand how to lead a righteous life. See Marria Decl. ¶ 13.
On March 27, 1996, while incarcerated at Green Haven, plaintiff received a notice informing him that a March 1996 issue of The Five Percenter addressed to him had arrived at the facility and was being held by the Media Review Committee. See Am. Compl. ¶ 16; Marria Decl. Ex. M. This notice further informed him of his option to promptly submit to Blaetz, Media 285*285 Review Committee Chairperson, a written statement in support of the admission of the publication, adding that a decision must usually be reached by the Media Review Committee within ten working days. See id. Plaintiff responded, and was subsequently sent a letter by the Media Review Committee stating that The Five Percenter newspaper had been sent to the Coordinator for Islamic Affairs. This letter did not contain the address or contact information for Umar, who was the Coordinator for Islamic Affairs at that time. See Marria Decl. ¶ 33, Ex. N, P.
When the same series of events occurred in April concerning the receipt of the April 1996 edition of The Five Percenter, plaintiff wrote to Acting Commissioner Coombe complaining about these events, and requesting an explanation as well as contact information for the Coordinator for Islamic Affairs. This letter was referred to Broaddus, Deputy Commissioner of Program Services, who informed plaintiff in a letter of June 7, 1996, that the ten day time limit imposed by DOCS Directive # 4572[6] for review of a publication is inapplicable in those cases where under Muhammed v. Coughlin,[7] the Coordinator for Islamic Affairs reviews all publications having to do with the Five Percenters. See Marria Decl. Ex. P (letter of June 7, 1996), Ex. Q (Directive # 4572). Broaddus further suggested that Marria contact the Chairperson of the Media Review Committee at Green Haven to obtain the address for the Coordinator for Islamic Affairs. See id.
Plaintiff received Broaddus's letter after his June 1996 transfer to Elmira Correctional Facility ("Elmira"). He inquired as to the contact information for the Coordinator for Islamic Affairs, and sent Umar a letter concerning the status of his newspapers. See Pl.'s 56.1 Stmt ¶¶ 22-24. Umar did not respond to this letter, and Marria has never been informed of what happened to his March and April 1996 editions of The Five Percenter or given an option to determine what should happen to them. See Pl.'s 56.1 Stmt. ¶ 25. While at Elmira, plaintiff again began receiving his subscription to The Five Percenter, though 286*286 the June 1996 issue was withheld.[8] In September 1997, plaintiff was transferred to Shawangunk Correctional Facility ("Shawangunk"). On September 22, 1998, Marria wrote a letter to

Umar requesting a copy of any directives, memos, rules, or regulations DOCS follows in the handling of Five Percenter literature. In a letter dated October 19, 1998, Umar responded as follows:
Dear brother:
This responds to your letter of September 22, 1998. There are no directives or rules and regulations regarding Five Percenters. The reason for this is because the courts have ruled that Five Percenters are not a legitimate religious group. The New York State Department of Correctional Services does not acknowledge the claims of inmates who designate themselves as Five Percenters. You may want to explore some of the teaching of the Muslims and the Nation of Islam in your facility.
Your brother in Islam, Imam Warith Deen Umar Ministerial Program Coordinator Ministerial and Family Services
This letter appears to represent the last contact between plaintiff and DOCS' with respect to The Five Percenter.
The parties later stipulated that defendants' policy is to deny plaintiff access to The Five Percenter at any DOCS facility. See Am. Compl. Ex. A., Stipulation dated December 17, 1999. Furthermore, on December 20, 2000, Marria made a formal request that staff and space be provided for gatherings called civilization classes, Parliaments, and the observation of Holy Days for Five Percenters. See Marria Decl. ¶ 28 and Ex. J. This request was denied. See id.
Plaintiff has asserted five causes of action in his amended complaint based on defendants' policy of denying him access to The Five Percenter and other literature, and the opportunity to congregate. First, Marria asserts that defendants' policy violates his right to free exercise of religion and of assembly as guaranteed by the First and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983. Plaintiff's second cause of action states a violation of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc, on the same factual grounds. Third, plaintiff alleges a violation of his right to free expression as guaranteed by the First and Fourteenth Amendments to the Constitution pursuant to 42 U.S.C. § 1983. Fourth, Marria asserts that defendants' acts have deprived him of his property without due process in violation of the Fourteenth Amendment to the Constitution, pursuant to 42 U.S.C. § 1983. Finally, plaintiff claims a violation of his right to free exercise of religion as provided for by Article I, Section 3 of the New York State Constitution and New York Correction Law Section 610.
287*287 I. Admissibility of Expert Reports
As a threshold matter, we first determine the admissibility of the reports of plaintiff's expert Toni V. Bair ("Bair") and defendants' expert George M. Camp ("Camp"). Because the purpose of summary judgment is to "weed out" cases in which there is no issue of material fact and where the moving party is entitled to judgment as a matter of law, it is appropriate to decide the admissibility of evidence, including expert reports, at the summary judgment stage. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997).

The admissibility of expert evidence is governed by Rule 702 of the Federal Rules of Evidence. This rule states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court mandated that the trial judge perform a "gatekeeping" function in assessing the admissibility of expert evidence under Rule 702. Such a task involves ensuring that the expert evidence is both relevant and reliable.[9] In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court applied the Daubert analysis to expert testimony by non-scientists, such as the testimony offered in this case.
A. Defendants' Motion to Exclude the Bair Report
By way of background, a brief description of the Bair Report is in order. In short, the Bair Report concludes that the presence of The Five Percenter in a prison facility does not threaten the order of that prison system. See Zealand Decl. Ex. E. More specifically, the report finds that the production of The Five Percenter is unconnected with inmate populations, and that the publication is innocuous on its face. Further, Bair concludes that the Supreme Alphabet and Mathematics, which are widely available for anyone to view, could not effectively be used by inmates as a code. The report also concludes that the Five Percenter belief that white man is the Devil is not new to prison group populations, and does not pose a security threat.
Defendants object to the Bair Report on the grounds that (1) Bair is not qualified as an expert on the matters in the report, (2) his conclusions are not reliable, and (3) the opinions expressed in the report are irrelevant to the issues in the case. First, we reject out of hand defendants' contention that Bair is not qualified to serve as an expert in this case. Given Bair's significant experience in corrections management[10], defendants' position that Bair is 288*288 unqualified to serve as an expert on the issue of whether The Five Percenter poses a management threat is unsupportable.
Defendants' second argument is that Bair arrived at the conclusions in his expert report without the benefit of a reliable methodology. The thrust of defendants' argument is that Bair is not knowledgeable in security threat group management in DOCS system, did not survey other prison systems, and did not consult literature on prison gang management in making his assessment.[11] We find this argument unpersuasive. In Kumho Tire, the Supreme Court stated, "[n]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience." 526 U.S. at 156, 119 S.Ct. 1167. As plaintiff argues, Bair is an expert in correctional management with over twenty years experience and he is qualified to testify as to why, as a warden, he would not have banned The Five Percenter newspaper based on its content. See Pl.'s Mem. in Opp'n at 17.

Finally, defendants also argue that Bair's testimony is irrelevant because the constitutionality of defendants' decision to ban Five Percenter literature rests on an analysis of DOCS' justification for this management decision. They argue that because Bair has no training in security threat group management, his testimony is both irrelevant and unhelpful to the finder of fact. In essence, defendants assert that because it is the presence of the literature rather than its content that are at issue in this case, Bair's analysis of the literature is irrelevant.
It is true that defendants' position in this case appears to be that it is not the content of The Five Percenter but rather its presence as a symbol of an unauthorized group that represents a danger to prison management. See Tr. of Oral Argt. at 37. However, simply because defendants have framed their defense in such a way does not render irrelevant plaintiff's position that the content of the materials themselves do not pose a threat to security. Because the issues of whether the publication supports, recruits, or encourages gang affiliation, enables inmates to communicate by code, or threatens the order of the prison through a message of black superiority are relevant issues in this case, the Bair report is relevant.
For these reasons, we find the Bair Report admissible and deny defendants' motion to exclude the report from consideration on summary judgment or at trial.
B. Plaintiff's Motion to Exclude the Camp Report[12]
Defendants' expert George Camp has approximately forty years of experience in criminal justice consulting and corrections management, including holding positions at numerous prisons and publishing several articles on violence in prisons and gang management. The opinions in the Camp Report incorporate conclusions 289*289 drawn from three separate sets of data as well as the experience of the author. First, Camp analyzed the data produced to plaintiff by DOCS counting the number of unusual incident reports[13] that expressly noted the involvement of a Five Percenter as well as those incidents that expressly involved members of five other groups.[14] Second, Camp performed the same analysis on separatee reports[15] produced for the same time period. Third, Camp conducted his own survey ("the Camp Survey"), sending a questionnaire by electronic mail to members of the Association of State Correctional Administrators, an organization of prison commissioners and directors. This questionnaire asked these administrators about the presence of Five Percenters in their systems and about their policies with respect to management of the group and dissemination of literature to them. See Zealand Decl. Ex. D, Camp Report (2), Attach. A. Because we conclude that the conclusions drawn in the Camp Report are both misleading and based on unreliable methodology, the Camp Report is inadmissible.
1. The Camp Survey
Plaintiff's first argument attacking the validity of the Camp report is that the Camp Survey was subjective and biased, and the results therefore do not bear the indicia of trustworthiness required to admit a survey into evidence. We agree with this contention. The trustworthiness of survey evidence depends in part on an assurance of objectivity in the

information gathering process, such as whether "the questions asked of interviewees were framed in a clear, precise, and non-leading manner." Toys "R" Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F.Supp. 1189, 1205 (E.D.N.Y.1983) (excluding a survey in part because one of the interviewers was aware that Toys "R" Us sponsored the survey, creating a possibility of bias); see also Shari Seidman Diamond, Reference Guide on Survey Research, in Reference Manual on Scientific Evidence 229, 248-264 (2d ed.2000) (discussing survey design).
The questionnaire on which the Camp Survey is based begins as follows:
Dear Members,
We need your help.
We are helping to defend the NYS Department of Correctional Service in a case that involves their policy on intercepting Five-Percenter literature. Your answers to the following questions will be helpful to us in preparing a defense.
Using this introduction, Camp e-mailed this questionnaire to prison administrators. The questionnaire not only makes clear that the information is being gathered to defend DOCS, but it also identifies the specific topic of the lawsuit and DOCS' actual position on the dissemination of Five Percenter literature. Because the biased nature of this survey renders its 290*290 results unreliable, the Camp Survey is inadmissible.
The Camp Survey has several other deficiencies as well. Of the approximately 50 systems about which Camp sought responses from prison administrators, including all the state systems and the federal prison system, he received responses representing 22 systems. While this shortcoming may not be fatal, his report does not account for how his results might be skewed based on the failure of over half of those surveyed to respond. Furthermore, some of the conclusions Camp draws from the data he collected using the survey are suspect. For example, one of the significant findings the Camp Report makes is the percentage of inmates in DOCS' facilities who are Five Percenters. To determine this percentage, Camp asked each respondent to his questionnaire to identify how many Five Percenters are confined in that system's facilities. However, Camp does not ask how they gathered this information. Then, using these questionable survey responses, Camp calculates the percentage of Five Percenters in the New York DOCS to be 1.4 percent of inmates by averaging the percentages of Five Percenters in the prisons of Massachusetts (.5%), Connecticut (1.2%), and New Jersey (2.6%). When asked at his deposition why he chose those three states but not other nearby states, Camp responded,
Well, I don't recall other than I thought that those three were closer in terms of a correctional system to New York. And New Hampshire is not boarding, Vermont is really an entirely different type of state and I think just from a correctional perspective, those states have more in common with New York.
Therefore, not only does Camp have no idea how respondents to his survey approximated the number of Five Percenters in their own state systems, his representation of the number of Five Percenters in the New York system is based on an average of three state chosen because Camp perceived that their correctional systems have "more in common" with New

York.[16] This methodology for determining the number of Five Percenters in New York prisons simply cannot be deemed reliable.
2. Statistical Analysis of Unusual Incident and Separatee Reports
Plaintiff also persuasively challenges Camp's statistical analysis of the data generated from the unusual incident reports and separatee reports. For example, one conclusion drawn by Camp in his report and illustrated in Charts 2-D and 3-D is that DOCS' policies with respect to Five Percenters "have had a salutary and significant impact on their prison environments." See Zealand Decl. Ex. D, Camp Report (2) at 5-6. As support, Camp explains that of all unusual incident reports mentioning one of the six analyzed groups, the percentage of unusual incidents involving Five Percenters dropped from 78.6 percent in 1990 to 2.0 percent in 1999. Similarly, with respect to separations, this percentage dropped from 85.4 percent to 3.7 percent. Camp places these percentages on a chart, making much of this drop-off in the percentage of such incidents among Five Percenters. However, as Camp later seems to acknowledge, these numbers actually reflect a rise in unusual 291*291 incidents and separations of the other identified groups, and not an appreciable improvement in the total numbers of such incidents involving Five Percenters.[17]
Furthermore, Camp does not account for the statistical significance of the numbers he has analyzed. As noted by plaintiff, "by shrinking the universe of unusual incident reports to those that include Five Percenters, Latin Kings, Bloods, Netas, Crips, or Nation of Islam... Mr. Camp has artificially inflated instances in which Five Percenters were mentioned in unusual incident reports." See Pl.'s Mem. in Opp'n at 15; Zealand Decl. Ex. D, Camp Report (2), Table 2. The number of total incident reports mentioning Five Percenters during the analyzed nine year period ranged from 11 to 2. Unacknowledged by Camp, during those years, the total number of unusual incidents ranged from just over 7,000 to around 12,300. For these reasons, not only are Camp's conclusions baseless, the graphs and charts he created making much of the relative percentages of incidents among the six groups surveyed are misleading and are thoroughly unhelpful to the trier of fact.[18]
In conclusion, because the Camp Report is misleading, unhelpful to the trier of fact, and founded on biased and therefore unreliable evidence, Camp's testimony is inadmissible.
II. Defendants' Motion for Summary Judgment
A. Standard for Summary Judgment
Summary judgment is properly granted where the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.'" R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997) (quoting Fed.R.Civ.P. 56(c)). The Federal Rules of Civil Procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of

proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In reviewing the record, we are required to assess the evidence "in the light most favorable to the non-movant and ... draw all reasonable inferences in [the non-movant's] favor." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir.1990). The mere existence, however, of an alleged factual dispute between the parties will not defeat a motion for summary judgment. In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for 292*292 trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505 (internal quotation omitted).
B. Sincerity and Religious Nature of Plaintiff's Beliefs
As a threshold matter, we discuss DOCS' position that plaintiff may not seek the protections of the First Amendment or RLUIPA because he has failed to demonstrate the sincerity[19] of his professed beliefs. In support of this argument, DOCS notes that Marria stated at his first deposition that the Five Percenters are not a religion, but rather a way of life. See also Artus Decl. Ex. Q (issue of The Five Percenter with headline and article entitled "We Are Not A Religion"). DOCS argues that Marria's statement at his second deposition that he believes Five Percenters to legally be a religion is merely a self-serving tactic to further this litigation. On this basis, DOCS argues that there is no genuine issue of material fact as to the sincerity of plaintiff's beliefs and that his claims must therefore be dismissed.
The Second Circuit has explained that a court's scrutiny of whether a plaintiff deserves free exercise protection "extends only to whether a claimant sincerely holds a particular belief and whether the belief is religious in nature." Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir.1996) (discussing this standard in the context of RFRA). In Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984), a case involving a constitutional challenge brought by a Five Percenter inmate, the Second Circuit addressed the propriety of granting summary judgment for failure to establish that beliefs and practices are religious in nature. In that case, the Court held that summary judgment was inappropriate because "subjective issues of sincerity of belief and the perceived nature of that belief" were questions of fact at issue, requiring the factfinder to "delve into the internal workings of [plaintiff's] mind and assess the credibility of his claims." Id. at 158.
Under this case law and given the record before the Court, the sincerity and religious nature of plaintiff's beliefs are clearly material facts in dispute. DOCS' argument is a semantic one, focusing on plaintiff's reluctance to call the Nation of Gods and Earths a "religion"—a reluctance that stems from Nation teachings that religions have historically been used to enslave followers by encouraging them to worship a God they cannot see. See Tr. of Oral Argt. at 29-35; Pl.'s Mot. in Opp'n at 23 ("[W]hen plaintiff states `We are not a religion,' he is not making a concession, but is articulating a central tenet of his belief system—a rejection of the traditional notion of `religion' that has served to suppress black people and incite violence among sects."). Plaintiff explains that although he would not use the word "religion" to describe the Nation, the Nation 293*293 holds the same significance in his life as Christianity to an observant Christian. See Marria Decl. ¶¶ 7-8; Vullo Decl. Ex. G, Marria

Depo. at 9-12. Further, as already described in some detail, plaintiff has submitted substantial evidence that he has been a member of the Nation since August of 1994 and that he lives by the Nation's teachings and observes the Nation's holy days to the extent possible under DOCS regulations.[20] For these reasons, we find that material issues of fact exist with respect to the sincerity and religious nature of plaintiff's beliefs.
B. First Amendment[21]
The adjudication of constitutional claims arising in the prison setting requires recognition of the value of inmates' constitutional rights as well as deference to the policy-making expertise of prison administrators. As is oft-quoted, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir.1995) (citing Turner). However, in recognition of the complexities of prison administration and the superior competence of the executive and legislative branches in guiding prison management, the judiciary affords substantial deference to appropriate prison authorities. Turner, 482 U.S. at 84-86, 107 S.Ct. 2254; Giano, 54 F.3d at 1053.
The proper inquiry in those cases where a prison regulation impinges on an inmate's constitutional rights is whether the regulation is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89, 107 S.Ct. 2254 (establishing this standard and applying it to a prison policy prohibiting correspondence among inmates of different institutions); Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (applying this analysis to a prison policy allowing the warden to reject publications sent to inmates in certain circumstances). This "reasonableness" test is "less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." O'Lone v. Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987).
In Turner, the Supreme Court laid out a four factor test to be applied by courts in determining the reasonableness of a prison regulation. First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forth to justify it. Turner, 482 U.S. at 89-90, 107 S.Ct. 2254. Since "the governmental objective must be a legitimate and neutral one," it is appropriate to inquire whether the regulation operates in a "neutral fashion, without regard to the content of the expression." Id. Second, while remaining mindful of the judicial deference owed to prison officials, a court should inquire as to whether alternative means of exercising the right remain open 294*294 to the inmate. Id. at 90, 107 S.Ct. 2254. Third, we consider the impact accommodating the asserted constitutional right would have on prison officials, other inmates, and prison resources. Id. Finally, mindful that prison officials are not required to show that the regulation is the least restrictive alternative, we consider whether there are ready alternatives that could be substituted for the contested regulation at a de minimus cost to penological goals. Id. at 91, 107 S.Ct. 2254.
In applying the Turner standards to this case, we conclude that it is inappropriate to award summary judgment on plaintiff's First Amendment claims of free exercise and freedom of expression. With respect to the first Turner factor, there is no question that prison safety and security are legitimate (as well as compelling) penological interests. See Giano v. Senkowski, 54 F.3d 1050, 1054 (2d Cir.1995); Breland v. Goord, No. 94 Civ. 3696(HB),

1997 WL 139533 (S.D.N.Y. March 27, 1997). Marria argues that DOCS' ban on Five Percenter literature and assembly is not rationally related to this legitimate interest because DOCS has not established that the Five Percenters have correctly been classified a security threat group.[22] In opposition to defendants' evidence that Five Percenters engage in violence in prison, plaintiff has submitted evidence that as a group, Nation members inside and outside of prisons are committed to righteousness and against violence. Plaintiff has also submitted evidence that the Supreme Alphabet and Supreme Mathematics are not a code, that Nation membership requires no initiation rights, and that members are free to leave the Nation whenever they wish without reprisal. Plaintiff argues that while evidence like the unusual incident reports submitted by DOCS demonstrates that some Five Percenters have committed violent acts in prison, DOCS' classification of the group as a whole is unjustified.[23] Further, while DOCS asserts that the literature and assembly ban is unrelated to the content of the expression but rather intended to further their nonrecognition strategy, plaintiff cites specific evidence in the record that challenges this characterization of DOCS' policy as content neutral. See Zealand Decl. Ex. S, Roy Depo. at 134-35 (stating that "to a degree," the reason Five Percenter literature is banned is because of language discussing the white man as a devil).
Two courts in this district have previously determined that summary judgment was inappropriate in Five Percenter cases with similar facts. Graham v. Cochran, No. 96 Civ. 6166(JSR)(RLE) (S.D.N.Y. March 30, 2000) (order adopting Report and Recommendation of February 14, 2000); Breland v. Goord, No. 94 Civ. 3696(HB), 1997 WL 139533 (S.D.N.Y. March 27, 1997) (denying summary judgment where DOCS' position was that Five Percenter literature may be banned because it incites violence).[24] In Breland, the Court evaluating the first prong of the Turner analysis focused on whether the defendants had proven a link between the violent incidents cited by DOCS and the content of the banned literature, 295*295 and held that DOCS' had not established such a link. In our case, DOCS seeks to circumvent the Breland Court's holding that such a link was not readily apparent by arguing that even though the literature itself is innocuous on its face, it is the presence of the literature in DOCS' facilities that encourages gang formation and leads to violent confrontations.
Even given the policy-making deference afforded prison administrators, we cannot say as a matter of law on this record that DOCS' has shown that its absolute ban on the literature and assembly of the Nation of Gods and Earths is rationally related to the legitimate purpose of prison security. See generally Allen v. Coughlin, 64 F.3d 77 (2d Cir.1995) (finding that fact questions precluded summary judgment in constitutional challenge to DOCS policy disallowing receipt of newspaper clippings by inmates); Benjamin v. Coughlin, 905 F.2d 571, 575-76 (2d Cir.1990) (characterizing the constitutional question of whether a DOCS regulation violates the Free Exercise Clause as applied to plaintiffs as "a mixed question of law and fact"). Initially, DOCS' argument that it bans Nation literature because of what it represents and not what it says seems disingenuous given DOCS' prior position in past litigation from the same time period that the literature itself encourages violence.[25] Further, DOCS' repeated references to the impact Five Percenter "rhetoric" has on inmate involvement in gang activities undercuts DOCS' position that the ban is unrelated to the literature's content. See generally Turner, 482 U.S. at 90, 107 S.Ct. 2254 ("We have found it important to inquire whether prison regulations restricting inmates' First Amendment rights operated in a neutral fashion, without regard to the content of the expression."). DOCS'

claim of content neutrality appears inconsistent with the language used in defendants' submissions —language that suggests that DOCS' ban on Five Percenter assembly and literature is at least in part motivated by a desire to suppress the ideas of Nation members as a group. For example, defendants make the seemingly value-based argument that authorizing access to Five Percenter literature and meeting space would undermine DOCS' policy of "promoting group activity that improves inmate attitudes, encourages constructive use of leisure time, and provides an educational and social experience." See Defs.' Mot. at 29; see also Def.'s Mot. at 6, 22 (arguing that the ban is content neutral while lamenting the use of "the group's rhetoric" to recruit inmates). Second, although DOCS bans possession of such literature as the 120 Degrees by Nation members, inmates who have registered as NOI may possess some of the exact same material. The position that DOCS has chosen to advance, namely, that one religious group may possess the same materials that if possessed by another contribute to gang formation, is, we think, a challenging one to sustain.[26] See supra, n. 3.
296*296 With respect to the second Turner factor, whether Marria has alternative means of exercising his rights, we find that there are disputed material issues of fact in this regard as well. As DOCS argued in Breland, defendants contend that plaintiff has alternative means of exercising his free speech and free exercise rights, such as by reading the materials and attending the religious services of other recognized groups (i.e. NOI), as well as discussing Five Percenter principles during meals and recreation. However, plaintiff has put forth substantial evidence that without access to Five Percenter literature and without the ability to discuss that literature with other inmates, he cannot study the lessons that are central to the practice of his religion.[27] While we understand that the law does not entitle plaintiff to every means of expression and free exercise, much of defendants' argument is tantamount to suggesting that if plaintiff can worship as a member of the NOI, constitutional safeguards are satisfied. Marria posits that DOCS' argument is equivalent to providing a Christian with the Old Testament and denying him access to the New Testament, and then arguing that reasonable avenues of speech and religious exercise have been provided. Further, some of the outlets for expression that defendants suggest are available are in fact barred under DOCS' regulations. For example, DOCS' suggestion that plaintiff can study the materials of the NOI is contradicted by the evidence that, in fact, DOCS only permits members of the NOI to have access to these materials and that NOI members are not permitted to show these materials to Nation members. See Blocker Decl.; supra n. 3.
Finally, under the third and fourth Turner factors, we consider the impact accommodation would have on prison resources as well as the existence of alternatives to the challenged regulation. DOCS' takes the position with respect to the third Turner factor that the impact of accommodating the asserted constitutional right would be a rise in gang violence with a deleterious impact on prison officials, other inmates, and prison resources. Further, DOCS argues that any alternatives to a complete ban on literature and assembly would still undermine DOCS' need to eliminate the presence of such literature from the facilities to prevent the Five Percenter rhetoric from being used to recruit inmates for criminal activities. Plaintiff maintains that materials issues of fact exist as to whether accommodation of the asserted right would indeed have the deleterious impact DOCS asserts. Marria further suggests the existence of such viable alternatives as redacting offensive emblems or language, submitting Five Percenter materials to a media review process, and providing plaintiff with a secluded place to read the literature. On the record before us and given the

presence of factual issues concerning DOCS' position that Five Percenter literature and assembly cause gang violence, these questions of accommodation and ready alternatives turn on issues of fact that must be resolved at trial. Breland, 1997 WL 139533 at *6; see also 297*297 Turner, 482 U.S. at 91, 107 S.Ct. 2254 ("[I]f an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimus cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.")
We recognize that prison officials are afforded great deference in formulating policies relating to the security of prison facilities. However, given the questions that remain with respect to the link between prison security and DOCS' absolute ban on Five Percenter literature and assembly, viewing the evidence presented in the light most favorable to plaintiff we cannot say that a reasonable finder of fact could not find in Marria's favor. See generally Show v. Patterson, 955 F.Supp. 182, 190-91 (S.D.N.Y.1997) (holding that fact issues existed as to whether strip search of Muslim inmates was reasonably related to legitimate penological interest); Francis v. Keane, 888 F.Supp. 568, 577 (S.D.N.Y. 1995) (denying summary judgment where two Rastafarian correctional officers challenged DOCS' grooming regulation disallowing dreadlocks, and stating that "grave questions remain with respect to the nexus, if any, between applying the directive to the plaintiffs and the defendants' asserted penological interests, making summary judgment inappropriate"). For this reason, summary judgment is denied with respect to plaintiff's First Amendment claims of free exercise and freedom of expression.
C. Religious Land Use and Institutionalized Persons Act
Congress enacted the Religious Land Use and Institutionalized Persons Act ("RLUIPA") in response to the Supreme Court's holding in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), declaring unconstitutional the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-1(b). RLUIPA applies both to programs or activities that receive federal financial assistance and to substantial burdens on religious exercise having an effect on interstate commerce. 42 U.S.C. § 2000cc-1(b); see Mayweathers v. Terhune, No. Civ. S961582LKKGGHP, 2001 WL 804140, *1 (E.D.Cal. July 2, 2001) (describing RLUIPA and sustaining its constitutional validity). The statute provides:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). See Kikumura v. Hurley, 242 F.3d 950 (10th Cir.2001) (discussing RLUIPA in the context of an inmate's challenge to a regulation limiting pastoral visits); Mayweathers at *2-8. Under RLUIPA, once a plaintiff produces prima facie evidence to support a free exercise violation, the plaintiff bears the burden of persuasion on whether the

regulation substantially burdens the plaintiff's exercise of religion and the state bears the burden of persuasion on all other elements. 42 U.S.C. § 2000cc-2(b).
By its terms, RLUIPA is to be construed to broadly favor protection of religious exercise. 42 U.S.C. § 2000cc-3(g). The statute defines religious exercise as "any exercise of religion, whether or not compelled by, or central to, a system of 298*298 religious belief." Id. § 2000cc-5(7)(A). This reflects an extension of the definition provided for in RFRA, which defined exercise of religion as "the exercise of religion under the First Amendment to the Constitution." 42 U.S.C. § 2000bb-2(4); Kikumura, 242 F.3d at 960 (noting the change in definition); Henderson v. Kennedy, 265 F.3d 1072, 1074 (C.A.D.C.2001) (noting that the definition of religious exercise in RLUIPA expanded upon the protections of RFRA). However, as suggested by both parties, the otherwise similar language of RFRA and RLUIPA suggests that cases decided under RFRA may guide this Court's inquiry in this case. See Wyatt v. Terhune, 280 F.3d 1238 (noting that RLUIPA provides rights similar to those delineated in RFRA); Henderson, 265 F.3d at 1074 (noting the expansion in the definition of religious exercise while holding that the amendments to the protections of RFRA "did not alter the propriety of inquiring into the importance of a religious practice when assessing whether a substantial burden exists").
Defendants move to dismiss plaintiff's RLUIPA claim on several grounds, some of which have already been addressed during the less demanding First Amendment analysis. Defendants assert that the record does not establish that DOCS ban on Five Percenter literature and access to meeting space substantially burdens the exercise of plaintiff's beliefs. DOCS further asserts that its regulations are in furtherance of a compelling governmental interest in prison security and that the ban on Five Percenter literature and access to facility meeting space is the least restrictive means of controlling security threat group behavior.
Like its predecessor RFRA, RLUIPA requires a plaintiff to demonstrate that his right to free exercise of religion has been substantially burdened. The Supreme Court has defined substantial burden as "[w]here the state... denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs." Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Jolly, 76 F.3d at 477 (citing this passage of Thomas with approval in considering Rastafarian inmate's RFRA claim). Defendants' argument that plaintiff has not demonstrated a substantial burden on his religious exercise is unpersuasive. Throughout this litigation, Marria has maintained that the study of the Supreme Mathematics, the Supreme Alphabet, the 120 Degrees, and other lessons found in The Five Percenter—both by himself and with other Nation members—is an integral part of the daily practice of Nation beliefs.[28] There is no question that under DOCS' regulations, plaintiff is denied the opportunity to possess these materials and study them with other inmates.
Having held that serious questions exist as to whether DOCS' absolute ban on Five Percenter literature and assembly is reasonably related to DOCS' legitimate interest in prison security, these same questions clearly preclude summary judgment under RLUIPA's requirement that a substantial burden of free exercise be in furtherance of a compelling governmental 299*299 interest. Further, on this record, the question of whether DOCS' ban

on the literature and assembly of Nation members is the least restrictive alternative raises questions of fact barring summary judgment. See Ramirez v. Coughlin, 919 F.Supp. 617, 621-22 (N.D.N.Y.1996) (denying summary judgment to DOCS on Satanist inmate's RFRA claim and holding that fact issues existed as to whether denial of access to three-inch metal bell for Satanist ceremonies was least restrictive alternative). Accordingly, summary judgment is denied with respect to plaintiff's claim under RLUIPA.
D. Due Process
In addition to his First Amendment and RLUIPA claims, plaintiff asserts a due process claim. Marria's due process argument is that his procedural due process rights were violated because his issues of The Five Percenter were not evaluated in accordance with Directive # 4572, entitled "Media Review."[29] Marria asserts that the media review regulation is the only operative procedure for evaluating a newspaper sent to an inmate by a publisher, and therefore, that DOCS' failure to abide by their own policy denied him due process of law. See supra n. 6; Blaetz Decl. Ex. A; see generally Allen v. Coughlin, 64 F.3d 77, 78-79 (2d Cir.1995) (discussing media review guidelines).
In response, DOCS challenges Marria's reliance on the media review directive as the exclusive basis for its evaluation of The Five Percenter. Rather, DOCS maintains that its internal regulations relating to contraband are applicable and that in any event, ample procedural safeguards were actually provided. Specifically, DOCS points to such internal regulations as Rule 105.12, which defines contraband,[30] DOCS Directive # 4422, which describes the procedures for searching inmate correspondence for contraband and then disposing of it,[31] and a central office memorandum to all prison superintendents, which describes the handling of Five Percenter materials.[32] 300*300 See Defs.' Reply Mem. at 27; Blaetz Decl. Ex. G. See generally Webster v. Mann, 917 F.Supp. 185, 187 (W.D.N.Y.1996) (discussing Directive # 4422 in the course of holding that even if internal regulations were violated by prison official's acts in reading and confiscating inmate's mail, such a violation was not a sufficient basis for a § 1983 claim); Minigan v. Irvin, 977 F.Supp. 607, 609 (W.D.N.Y.1997) (reviewing cases that have upheld the constitutional validity of Directive # 4422).
We reject Marria's argument for several reasons. First, the question of the adequacy of procedures for a content-based review seems to fall more appropriately within plaintiff's First Amendment argument. Second, defendants have submitted substantial evidence that the media review directive does not determine the procedures to be followed for the handling of incoming correspondence that has been classified as contraband,[33] and therefore, that they did not deliberately fail to follow internal policy. Thus, we come full circle. The treatment of The Five Percenter hinges on the sustainability of DOCS' classification of the Five Percenters as a security threat group and the related ban on all Five Percenter literature, issues that we have already found not ripe for resolution on summary judgment. However, as discussed in the next section, because plaintiff's due process claim is dismissed on the grounds of qualified immunity, we need not separately resolve defendants' motion for summary judgment on plaintiff's due process claim.
E. Qualified Immunity

The doctrine of qualified immunity has traditionally operated to shield state officials from liability "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In this case, plaintiff concedes that qualified immunity is appropriate with respect to his First Amendment and RLUIPA claims, and seeks monetary damages only for alleged violations of his procedural due process rights. As a preliminary consideration, we review the involvement of each of the defendants in the confiscation of plaintiff's literature. Defendant Blaetz, then Chair of the Media Review Committee at Green Haven, realized that plaintiff's March and April issues of The Five Percenter had been incorrectly submitted to the Media Review Committee. Pursuant to DOCS' policy, she forwarded the newspapers to Umar, then the Coordinator of Islamic Affairs, for a determination of whether the literature was permissible as NOI literature or contraband as material pertaining to a security threat group. See Blaetz Decl. Defendant Umar, in response and also pursuant to DOCS policy, reviewed the newspapers and determined that they were contraband under DOCS' policy. He then notified a counselor at Green Haven that the literature was contraband and that Marria was not permitted to receive it. See Umar Decl. Defendant Broaddus's involvement in the confiscation of defendant's literature was restricted to responding to plaintiff's inquiry as to the status of 301*301 his newspapers, informing him that media review was inapplicable to his publications and that they had been sent to Umar for review. Finally, defendant Goord, who did not commence his employment as the Commissioner of DOCS until after the March and April newspapers had been confiscated,[34] forwarded Marria's inquiry to Broaddus for response.
For a defendant to secure summary judgment on the ground of qualified immunity, he must show "that no reasonable jury, viewing the evidence in the light most favorable to the [p]laintiff, could conclude that the defendant's actions were objectively unreasonable in light of clearly established law." See Ford v. Moore, 237 F.3d 156, 162-63 (2d Cir.2001) (citing Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)). State officials seeking qualified immunity are shielded from liability for monetary damages if, at the time they acted, either (1) their conduct "did not violate clearly established rights of which a reasonable person would have known," or (2) "it was objectively reasonable to believe that [their] acts did not violate these clearly established rights." Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.1993) (internal quotations omitted) (quoting Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir.1990)); see also Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In determining whether a particular right was clearly established at the time defendants acted, a court considers the following factors:
(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993) (citing Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991), cert. denied, 503 U.S. 962, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992)).
Based on our discussion earlier in this Opinion, it is clear that the status of the Five Percenters as a security threat group is an unsettled question. Similarly, neither the

Supreme Court nor the Second Circuit have ruled on the constitutional protection to be accorded Five Percenter literature. See Graham at *8. Under these circumstances, the participation by these defendants in carrying out DOCS' policies for evaluating and confiscating The Five Percenter as contraband cannot be considered objectively unreasonable in light of clearly established law. See Green v. Bauvi, 46 F.3d 189 (2d Cir.1995) (noting that the fact that officials complied with state regulations is a factor in determining whether a reasonable official would have known his actions violated the Constitution). Summary judgment is therefore granted with respect to defendants' assertion of qualified immunity.
F. State Law
Defendants move to dismiss the claims asserted under the free exercise protections of Article 1 of the New York State Constitution and Section 610 of the New York Correction Law, arguing that claims for damages against DOCS employees in their personal capacities for acts conducted 302*302 within the scope of their employment are barred under New York Correction Law § 24.[35] Because plaintiff does not seek monetary damages under these provisions, we need not address this argument further. See Pl.'s Mem. in Opp'n at 9 n.2; Baker v. Coughlin, 77 F.3d 12 (2d Cir. 1996).
CONCLUSION
For the foregoing reasons, defendants' motion to exclude the Bair Report is denied and plaintiff's motion to exclude the Camp Report is granted. Further, defendants' motion for summary judgment is denied as to plaintiff's First Amendment and RLUIPA claims, and defendants' motion to dismiss plaintiff's due process claim on qualified immunity grounds is granted. A conference has been scheduled to discuss further proceedings in this matter for April 18, 2002, at 4:00 p.m.
IT IS SO ORDERED.
[1] Unless specifically noted, all facts stated herein are drawn from plaintiff's complaint and the parties' submissions in connection with the present motion. The latter include their Local Rule 56.1 Statements ("56.1 Stmt."), deposition transcripts, affidavits or declarations, and other exhibits attached thereto.
[2] "Five Percent" derives from the belief of Nation members that they should teach the Nation's lessons to others. As described by plaintiff, the 5% are the poor righteous teachers of freedom, justice, and equality who do not believe in the teachings of the 10%. The 85% percent believe the teachings of the 10% that a mystery God exists, and the 10% keep the 85% enslaved by having them worship a God they cannot see. See Marria Decl. ¶ 19. It is significant to note that while Nation members subscribe to this belief, and "Nation of Gods and Earths" is often used interchangeably with "Five Percenters," others such as the Nation of Islam also believe in this categorization and may therefore also be referred to as "Five Percenters."
[3] According to plaintiff, while the Nation shares some tenets with the NOI, including the beliefs that the white man is the devil and that the white man was made through a selective breeding process called grafting, there are marked differences in the teachings of the NOI and the Nation. See Marria Decl. ¶¶ 11-12. The most significant difference between the NOI and the Nation is that the NOI teaches that Allah appeared in the person of Master Fard Muhammed, whereas the Nation teaches that every black man is God with the proper name of Allah. The Nation also does not participate in Ramadan, Jumma, and some other traditional Islamic customs.

While the NOI and the Nation differ in their interpretation of the 120 Degrees, referred to as the Book of Supreme Wisdom by the NOI, both groups study the lessons contained inside. See Blocker Decl. ¶¶ 8-11. DOCS permits the Book of Supreme Wisdom to be issued to any inmate who is a registered member of NOI, but Nation members who have not registered as members of the NOI are not permitted to view these materials. See Blocker Decl. ¶¶ 10-11.
[4] Just as Nation members are required to fast on holy days and follow dietary restrictions such as not eating pork, they are also required to study the lessons in these teachings both individually and in group sessions. The 120 Degrees are lessons arranged in a question and answer format that represent the teachings of Master Fard Muhammad and Elijah Muhammad. See Marria Decl. ¶ 14. The Supreme Alphabet and Supreme Mathematics are numerology devices used "to understand man's relationship to the universe and Islam." See Marria Decl. ¶ 13 & Ex. B; Kahlifah Decl. ¶ 7. For example, the letter "A" stands for "Allah" and is defined as "the proper name of the original blackman who is God; Arm-Leg-Leg-Arm-Head." See Marria Decl. Ex. B (describing Supreme Alphabet). As another example, the number "1" represents "Knowledge," and is defined as follows:
1. Knowledge—is to know, look, observe and respect. Knowledge is the foundation of all things in existence just as the blackman is the foundation of his family and all civilization in existence. Thus making knowledge symbolic to the blackman.
See Marria Decl. Ex. B (describing the Supreme Mathematics).
[5] Defendants' submissions refer largely to "Five Percenters" and seem not to distinguish between Five Percenters and the Nation of Gods and Earths. It is not entirely clear from the terminology used in the parties' submissions that DOCS and plaintiff use these terms with the same meaning and to identify the same members. As previously noted, the term "Five Percenter," while commonly used to describe Nation members, can be used more generally to describe a person who subscribes to the belief that all people can be broken down into the five percent, the ten percent, and the eighty-five percent. See supra n. 2. Therefore, though the term "Five Percenter" is commonly used to describe Nation members, not every Five Percenter is actually a member of the Nation of Gods and Earths. See Tr. of Oral Argt. at 28-29.
[6] Directive # 4572, titled "Media Review," instructs that newspapers may only be received from the publisher or an approved distributor subject to Media Review guidelines. Further, it states that in the event that the Media Review Committee fails to respond to an inmate within 10 working days, the inmate has a right to appeal the lack of decision in writing to the Central Office Media Review Committee. See Marria Decl. Ex. Q. Should the Media Review Committee disapprove a publication, the inmate is to be notified in a Disposition Notice and told the precise reason why the publication violates the media review guidelines, including the page number, article title, and location on the page of the article objected to. See id. When an article is disapproved, the inmate has four options: (1) he may appeal to the Central Office Media Review Committee within 30 days; (2) in certain cases, he may receive the publication with the objectionable material removed; (3) he may have the publication sent at his own expense to another person outside the facility, either immediately or after 30 days; and (4) he may have the publication destroyed after 30 days. If the inmate does not make a choice among these options, the facility may dispose of the publication in any manner. Id.
[7] As a result of a settlement in Muhammed v. Coughlin, DOCS recognizes NOI as a religion and allows inmates to receive NOI literature. See Broaddus Decl. ¶¶ 5-6. As defendants now explain, plaintiff's copies of The Five Percenter were forwarded to the Media Review Committee because confusion arose as to whether the newspaper was authorized under Muhammed v. Coughlin as NOI literature, or contraband due to the Five Percenters' status as a security threat group. See id.; Blaetz Decl. ¶¶ 5-11. The forwarding of these materials to the Media Review Committee was an error because, according to defendants, literature defined as contraband does not fall under the jurisdiction of the Media Review Committee. See Blaetz Decl. ¶¶ 9-11.
[8] Unlike the April and June issues, the Media Review Committee at Elmira did determine and inform plaintiff that the June 1996 issue was inconsistent with media review guidelines. Plaintiff appealed the decision to the Central Office Media Review Committee ("COMRC"). He received no response to his appeal, and on August 14, 1996, wrote a letter to Elmira Superintendent Floyd Bennett ("Bennett") requesting investigation into the failure of the COMRC to respond to his appeal concerning the June issue. See Marria Decl. Ex. T. On August 16, 1996, Elmira Captain D.G. Aiedala ("Aiedala") responded on behalf of Bennett, informing Marria that Elmira had complied fully with DOCS Directive # 4572, and that he should write to Media Review in Albany to request information on the status of his appeal. See Marria Decl. Ex. U. On August 23, 1996, Marria sent such an inquiry to the COMRC. See Marria Decl. Ex. V.

[9] Factors that may be considered in determining the reliability of an expert's reasoning include whether the expert's theory can be tested, whether there has been peer review or publication, the existence of known or potential error rates and standards governing the technique's operation, and whether there has been general acceptance of the methodology in the scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786.
[10] Bair has been a corrections professional for more than twenty years, and his past positions have included serving as the warden of prisons in both Virginia and Utah. See Zealand Decl. Ex. E (including curriculum vitae). Further, Bair has a Ph.D. in Sociology with a concentration in Criminal Justice, and has taught college courses on prison related issues for almost ten years, including courses on criminal justice management and prison issues and dilemmas. See id.
[11] As the basis for his report, Bair consulted the complaint, the answer, nine editions of The Five Percenter, a number of Internet websites on the Five Percenters, DOCS Directives # 4572, DOCS Rule 105.12, depositions of several DOCS employees, and various Five Percenter literature. See Zealand Decl. Ex. E.
[12] Two almost identical reports prepared by Camp have been submitted by the parties, one dated March 13, 2000 (hereinafter cited as "Camp report (1)"), and the other March 24, 2000 (hereinafter cited as "Camp report (2)"). See Zealand Decl. Ex. C and D.
[13] The figure representing the total number of unusual incident reports includes incidents of violence reported to DOCS, but may also include non-violent incidents, such as a staff member causing damage to a state vehicle at a correctional facility for example. See Artus Decl. Ex. K, Artus. Decl. in Production ¶ 7.
[14] During discovery, defendants produced to plaintiff, using a computer program plaintiff provided, a breakdown of the total number of unusual incident reports and separatee reports for each year from 1990 to 1999, the number and substance of reports mentioning Five Percenters, and the number and substance of reports mentioning five other groups. These groups are the Latin Kings, the Bloods, the Crips, Neta, and the Nation of Islam. See Artus Decl. Ex. K. This production was used by Camp in preparing his expert report.
[15] Separatee reports recount occasions on which certain inmates had to be separated from each other.
[16] Moreover, neither Camp's responses at his deposition nor the Camp survey demonstrate that Camp performed any kind of census or statistical analysis to support his conclusion of commonality between New York's corrections system and those of New Jersey, Massachusetts, and Connecticut. For example, there is no indication that Camp considered a statistical analysis of the racial compositions of the prison populations in these four states, a factor that would tend to support his perception of commonality.
[17] For instance, the 78.6 percent of unusual incident reports involving Five Percenters in 1990 as relative to other identified groups reflects the following breakdown: 11 unusual incidents involving Five Percenters, 3 involving the Latin Kings, and none involving the Bloods, Neta, the Crips, and N.O.I. By contrast, the 2.0 percent of such reports involving Five Percenters in 1999 as relative to other identified groups reflects this breakdown: 2 involving Five Percenters, 15 involving Latin Kings, 65 involving the Bloods, 8 involving Neta, 8 involving the Crips, and 3 involving N.O.I. This illustrates that the drop noted by Camp does not reflect the drop in incidents involving Five Percenters so much as it reflects the increase in the activities of these other groups. See Zealand Decl. Ex. D, Camp Report (2), Table 2.
[18] Plaintiff points out that in 1990, for example, a year in which 11 unusual incident reports mentioned Five Percenters, there were 7,083 total reports. By these numbers, the percentage of reports mentioning Five Percenters is sixteen hundredths of one percent. See Pl.'s Mem. in Opp'n at 15.
[19] Defendants actually use the words "sincerity" and "legitimacy" interchangeably in making this argument, demonstrating their misunderstanding of the appropriate scope of this Court's inquiry into plaintiff's religious belief. As stated by the Second Circuit:
It cannot be gainsaid that the judiciary is singularly ill-equipped to sit in judgment on the verity of an adherent's religious beliefs. Mindful of this profound limitation, our competence properly extends to determining "whether the beliefs professed by a [claimant] are sincerely held and whether they are, in his own scheme of things, religious."

Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984) (citing United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)).
[20] In support of its position that plaintiff has failed to demonstrate the sincerity of his religious beliefs, DOCS makes the wholly untenable argument that "plaintiff has never participated in a parliament, a fundamental ritual, before or after his incarceration, which is similar to a Catholic never going to Mass." Defs.' Reply Mem. at 9. As the record makes clear, however, plaintiff did not become a member of the Nation until after his incarceration began, and DOCS has denied plaintiff's request to hold Parliaments. See Marria Reply Decl. ¶ 6.
[21] The First Amendment of the United States Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
[22] DOCS admits that if the Five Percenters were improperly classified as a security threat group, defendants would have no interest in banning Five Percenter literature. See Tr. of Oral Argt. at 37-38.
[23] Plaintiff points out that according to the unusual incident reports collected by DOCS over a nine year period, the most unusual incident reports mentioning Five Percenters in any given year was 11 reports, constituting sixteen hundredths of one percent of unusual incident reports for that year.
[24] Although these cases dealt with claims similar to Marria's, both were settled, thus leaving the constitutionality of DOCS' ban unresolved.
[25] Beyond DOCS' apparent litigation-driven shift in the justification for same policies previously litigated, it is further difficult to ascertain the terms and justification for DOCS' policy because there is no one regulation or directive that states DOCS' policies with respect to Five Percenters. See Tr. of Oral Argt. at 5-7.
[26] To justify this policy, DOCS argues that "[i]f inmates were allowed to receive Five Percenter literature, the likelihood that the literature would be circulated among inmates undermines DOCS' management of security threat groups... The literature will be used to recruit members, and inmates who possess or display the literature will be identified as members of the Five Percenter [sic] and expose themselves to harm from rival gang members." See Defs.' Mot. at 28-29 (internal citations to the record omitted).
[27] With respect to the ban on Five Percenter assembly, DOCS relies on Benjamin v. Coughlin, 905 F.2d 571, which upheld the constitutionality of DOCS' directive requiring a religious leader to act as a sponsor for inmate organizations. Benjamin fails to support defendants' point, however, because Marria's request for the opportunity to assemble with other Nation members included a request for a spiritual leader, and DOCS' denial of his request was not under the directive requiring a spiritual leader, but rather because "[t]he Nation of Gods and Earths... has been determined by the Department to be an unauthorized, disruptive inmate organization." See Marria Decl. Ex. J.
[28] Defendants argument that Marria conceded at his deposition that he has been able to practice his Five Percenter beliefs both mischaracterizes Marria's deposition testimony and contradicts the submitted evidence. For example, Marria never conceded that he can receive NOI lessons, and has further submitted evidence that under DOCS regulations, only registered members of NOI have access to such materials. See Vullo Decl. Ex. G., Marria Depo. at 24-27; Blocker Decl.
[29] Plaintiff is not challenging the loss or destruction of his property. While there is no question that he has a property interest in the newspapers, even if they were of minimal monetary value, Parratt v. Taylor, 451 U.S. 527, 536, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the loss or destruction due to the negligence of the defendants would not rise to the level of a constitutional deprivation under § 1983. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Herrera v. Scully, 815 F.Supp. 713, 721-24 (S.D.N.Y.1993).
[30] In its entirety, Rule 105.12 of the Standards of Inmate Behavior provides,
Unauthorized Organizational Activity Inmates shall not engage or encourage others to engage in unauthorized organizational activities or meetings, display, wear, possess, distribute, or use unauthorized organizational insignia or materials.

An unauthorized organization is any gang; [sic] or organization which has not been approved by the Deputy Commissioner for Program Services.
See Blaetz Decl. Ex. E.
[31] Section G of Directive # 4422, which is entitled "Inmate Correspondence Program," governs procedures for incoming mail. In Part 1, it provides that all incoming mail is opened and inspected for certain items including contraband, but then refers the reader to Directive # 4572 for publications deemed to be unacceptable. When unauthorized items (i.e. contraband) are found in inmate correspondence, an inmate is given the choice of returning the items to the sender or otherwise disposing of them at his own expense. If, after 30 days the inmate is unable to pay for the disposal of the contraband, it is donated or destroyed. See Blaetz Decl. Ex. G.
[32] Promulgated after the facts that gave rise to this cause of action took place, this memorandum informs superintendents that Five Percenter materials are deemed contraband under Rule 105.12, are not subject to media review, and should be confiscated pursuant to contraband procedures. See Blaetz Decl. Ex. F.
[33] Surely, for example, DOCS would not be obligated to direct literature promoting the Latin Kings through the media review process for a determination of whether the materials' content furthers gang activity. Cf. Nogueras v. Coughlin, No. 94 Civ. 4094(JSM), 1996 WL 487951, *3 (S.D.N.Y. Aug. 27, 1996) (discussing Latin Kings literature and holding that under the Turner factors, "the Department's policies requiring groups to be authorized and deeming unauthorized groups' materials contraband are reasonably related to the valid penological interests of... containing gang activity and inmate violence.")
[34] We note the well-established rule that liability for damages under § 1983 requires personal involvement by the individual defendant in the alleged constitutional violation. Gaston v. Coughlin, 249 F.3d 156 (2d Cir.2001); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). Clearly, Goord cannot be liable for acts occurring prior to his employment.
[35] New York Correction Law § 24 provides in pertinent part:
1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the [Department of Correctional Services], in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the [Department of Correctional Services] shall be brought and maintained in the court of claims as a claim against the state.

 
 Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
KeyCite Yellow Flag - Negative Treatment Declined to Follow by Harrison v. Watts, E.D.Va., March 26, 2009
2003 WL 21782633 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Rashaad MARRIA, Plaintiff, v.
Dr. Raymond BROADDUS, Deputy Commissioner of Programs; G. Blaetz, Chairperson of Green Haven Correctional Facility Media Review
Committee; Warith Deen Umar, Coordinator for Islamic Affairs; and Glenn Goord, Commissioner of the New York State Department of Corrections,
Defendants.
No. 97 Civ.8297 NRB. | July 31, 2003.
Prisoner brought action against New York State Department of Correctional Services (DOCS) and various officials alleging violation of his rights under First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA). The District Court, Buchwald, J., held that: (1) prisoner’s beliefs as a member of the Nation of Gods and Earths were both sincere and “religious in nature” and therefore entitled to Religious Land Use and Institutionalized Persons Act (RLUIPA) and First Amendment, and (2) DOCS’ classification of Nation of Gods and Earths as a security threat group and its absolute ban on Nation literature violated prisoner’s free exercise rights under First Amendment and RLUIPA.
Order in accordance with opinion.
West Headnotes (4)
[1] Constitutional Law Beliefs Protected;   Inquiry Into Beliefs
A court’s scrutiny of whether a plaintiff deserves free exercise protection extends only to whether a claimant sincerely holds a particular belief and whether the belief is religious in nature. U.S.C.A. Const.Amend. 1.
2 Cases that cite this headnote

[2] Constitutional Law Beliefs Protected;   Inquiry Into Beliefs
Analysis of whether a claimant sincerely holds a particular belief and whether the belief is religious in nature, and thus subject to protection under free exercise clause of First Amendment, seeks to determine the subjective good faith of an adherent in performing certain rituals and can be guided by such extrinsic factors as a purported religious group’s size and history, whether the claimant appears to be seeking material gain by hiding secular interests behind a veil of religious doctrine, and whether the claimant has acted in a manner inconsistent with his professed beliefs; however, courts are not permitted to ask whether a particular belief is appropriate or true, however unusual or unfamiliar the belief may be. U.S.C.A. Const.Amend. 1.
2 Cases that cite this headnote
[3] Constitutional Law Prisons and Pretrial Detention
Prisons Religious Practices and Materials
Prisoner’s beliefs as a member of the Nation of Gods and Earths were both sincere and “religious in nature” and therefore entitled to Religious Land Use and Institutionalized Persons Act (RLUIPA) and First Amendment protection under the free exercise clause; despite Nation members’ reluctance to call the Nation of Gods and Earths a “religion,” prisoner lived by the Nation’s teachings and observed the Nation’s holy days to the extent possible under corrections regulations, Nation carried the same significance for its members as Christianity, Judaism, and Islam did for their adherents, and Nation’s contrasting belief system meant that one could not be a part of those religions and the Nation simultaneously. U.S.C.A. Const.Amend. 1; 42 U.S.C. § 2000cc-3(g).
12 Cases that cite this headnote
[4] Constitutional Law
1

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
Prisons and Pretrial Detention Prisons
Religious Practices and Materials
Department of Correctional Services’ (DOCS) classification of Nation of Gods and Earths as a security threat group and its absolute ban on Nation literature violated prisoner’s free exercise rights under First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA); Department failed to establish that its complete ban on Nation materials, literature, and activities furthered a compelling security interest and was the least restrictive means of doing so under RLUIPA. 42 U.S.C. § 2000cc-1(a).
21 Cases that cite this headnote
Opinion

other members of the group. He seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments to the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), the New York State Constitution, and state law. Plaintiff’s federal due process and analogous state law claims were dismissed on qualified immunity grounds at the summary judgment stage of this case. See Marria v. Broaddus, 200 F.Supp.2d 280, 301-302 (S.D.N.Y.2002).
The Court held a five-day bench trial during which the parties presented evidence bearing on the issue of whether plaintiff’s beliefs as a member of the Nation are entitled to Constitutional protection and, if so, what proper the scope of protection would be. Having reviewed the testimony and evidence that has been presented, we find that plaintiff’s sincerely-held beliefs as a member of the Nation are entitled to First Amendment and RLUIPA protection, and thus grant plaintiff’s requested injunctive relief in part and remand in part for further consideration and action by DOCS not inconsistent with this decision.2 Our findings of fact and conclusions of law are set forth below.

OPINION AND ORDER
BUCHWALD, J.
*1 Plaintiff Intelligent Tarref Allah, formerly known as Rashaad Marria1 (hereinafter “plaintiff”), has been an inmate in the custody of the New York State Department of Correctional Services (“DOCS”) since June 1995. For the duration of his incarceration within DOCS, plaintiff has been a member of the Nation of Gods and Earths (“Nation”), which he joined in August of 1994 while awaiting trial at Rikers Island. Defendants are DOCS employees sued in their individual and official capacities: defendant Glenn S. Goord (“Goord”) is current the Commissioner of DOCS; defendant Dr. Raymond Broaddus (“Broaddus”) was the Deputy Commissioner for Program Services of DOCS at all times relevant to this action; defendant G. Blaetz (“Blaetz”) was a Senior Counselor and the Media Review Committee Chairperson at DOCS’ Green Haven Correctional Facility (“Green Haven”); and defendant Warith Deen Umar (“Umar”) was the Coordinator for Islamic Affairs at DOCS at all times relevant to this action (collectively, “defendants” or “DOCS”).
Plaintiff challenges DOCS’ policy classifying the Nation as an “unauthorized” or “security threat” group and DOCS’ consequent prohibition on his receipt of Nation materials and literature, including the group’s central texts and its newspaper, and ban on formal gatherings with

BACKGROUND
The Nation’s history, teachings, and practices are largely not contested, nor are the existence and application of DOCS’ policies concerning the Nation.
A. The Nation of Gods and Earths The Nation, whose adherents are commonly referred to as “Five Percenters,” the “Five Percent”, or the “Five Percent Nation,” was founded in New York nearly 40 years ago. The Nation traces its roots to the Black Muslim movement that emerged in the midtwentieth century and most directly to the Nation of Islam (“NOI”)-a group that DOCS classifies as a religion pursuant to the settlement in Muhammad v. Coughlin, No. 91 Civ. 6333 (S.D.N.Y), and one with which the Nation shares some teachings and its central text (known to Nation members as the 120 Degrees).3 See Trial Tr. at 162:11-17; Trial Tr. at 56:18-23. The concept of the “Five Percent” from which the Nation derives its colloquial name was first set forth by NOI leader Elijah Muhammad, who separated the world’s population into three categories: the Five Percent, the Ten Percent, and the Eighty-Five Percent. See Trial Tr. at 54:6-20. According to Elijah Muhammad, the Ten Percent teach the Eighty-Five Percent to believe in the existence of a “mystery God” and thereby keep the Eighty-Five Percent enslaved by having them worship something that they cannot see. See id. Muhammad
2

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
characterized the remaining Five Percent as the poor, righteous teachers who do not believe in the teachings of the Ten Percent and instead teach the identity of the true and living God, as well as freedom, justice, and equality to all human families of the planet earth. See id. The term “Five Percenter,” while commonly used to describe members of the Nation, can be used more generally to describe a person who subscribes to the belief that humankind can be broken down into the Five Percent, the Ten Percent, and the Eighty-Five Percent. Thus, not all people who might nominally identify themselves as “Five percenters” are necessarily members of the Nation of Gods and Earths. See Trial Tr. at 55:15-25.
*2 The Nation of Gods and Earths began in 1964 when its founder Clarence 13X Smith broke with the NOI. See Trial Tr. at 56:18-23. In contrast to the NOI’s belief that Allah (God) appeared on Earth solely in the person of its founder Master Fard Muhammad, Smith and his followers professed the central belief that every black man is an embodiment of God with the proper name Allah and that every black woman is “Earth,” from which life springs. See Trial Tr. at 56:24-57:7. Thereafter, with the assistance of the City of New York and the Urban League, Smith and his followers created the “Allah School in Mecca,” a headquarters that also houses the “Allah Youth Center in Mecca,” in Harlem, New York as a street academy designed to bring the Nation’s message to urban youth. See Trial Tr. at 56:18-23; see also generally April 30, 2001 Decl. of Elise Zealand (“Zealand Decl.”) Ex. N (article discussing the history of the Nation); April 27, 2001 Decl. of Rashaad Marria (“Marria Decl.”) ¶ 15 & Ex. D (discussing the Nation’s relationship with the Urban League and New York City). The Center, which enjoys 501(c)(3) not-for-profit tax status and a favorable ninety-nine year lease from the City paid at the rate of twenty dollars per month, continues to operate in Harlem as do several similar centers elsewhere. See Trial Tr. at 316:9-13. Among the activities sponsored by the Allah School and Youth Center are substance abuse programs, after-school tutoring for children, and youth trips to show children that “there is more to life than what they see in the ghettos.” See Trial Tr. at 313:17-315:21. Aside from its headquarters in Harlem, the Nation does not have a formal structure or hierarchy beyond preaching respect for “elders”-i.e ., those with the most extensive knowledge of the group’s beliefs and lessons. See Trial Tr. at 94:12-24.
As we previously mentioned, some of the Nation’s beliefs and practices overlap with those of the NOI as a result of the two groups’ shared belief in the lessons that comprise the 120 Degrees. Both groups, for example, believe that the black man is the “original Asiatic man.” Both the Nation and NOI also believe that the white man is “the devil,” made through a selective breeding process referred to as “grafting,” as all of these teachings are set forth in the 120 Degrees. See Trial Tr. at 165:12-21; Trial Tr. at

302:15-20; Pl. Trial Ex. 180 (anthropological “syncretism” created by plaintiff witness Ted Swedenberg comparing the Nation of Gods and Earths to various religious traditions); Blocker Decl. ¶ 8. Members of both groups also observe dietary restrictions, such as refraining from eating pork, and fast on holy days.4 Finally, the Nation’s emblem, known to members as the “Universal Flag,” is reminiscent of the one used by NOI. Compare Pl. Trial Ex. 1 (cover of Five Percenter newspaper containing the “Universal Flag”) with http:// www.noi.org/ (visited May 26, 2003) (NOI web page displaying crescent emblem).
*3 Although plaintiff asserts that his belief system as a member of the Nation would be commonly understood as a religion, he and other nation members reject the label “religion” in describing the Nation because they believe that the term “religion” connotes “belief in the mystery God”-i.e., the false religious belief systems promulgated by the Ten Percent to enslave the minds of others. See Trial Tr. at 106:13-16. Therefore, plaintiff and other Five Percenters commonly describe the Nation as a “way of life or culture,” not a “religion.” See Trial Tr. at 58:2-13.
The 120 Degrees, along with two numerology devices known as the Supreme Alphabet and Supreme Mathematics, forms the core of the Nation’s literature. The 120 Degrees are lessons arranged in a question and answer format that represent the teachings of NOI founder Master Fard Muhammad and Elijah Muhammad. The Supreme Alphabet and Supreme Mathematics assign a word to each letter of the alphabet (almost all of which begin with the letter to which they correspond) and ten “righteous” principles to each number from 0 to 9. They are used as the keys “to understand[ing] man’s relationship to the universe and Islam,” as well as to understanding and interpreting the 120 Degrees.5 Marria Decl. ¶ 13. There is no dispute that the Supreme Alphabet and Mathematics have not changed since they were created by Clarence 13X Smith in the 1960’s and are made widely available by the Nation and others. Members of the Nation use these sources in conjunction with one another to attain “knowledge of self,” which is central to their membership in the Nation, and they must be understood and applied on a daily basis in order to live righteously. Hence, just as Nation members are required to fast on holy days and follow dietary restrictions, they are also required to study the lessons in these teachings on a regular basis both individually and in group sessions. The Nation’s beliefs are also based on the Koran and the Bible, which serve as secondary texts, see Trial Tr. at 65:7-66:15, and “plus lessons” consisting of written commentary by Five Percenters aimed at fostering further insight into the group’s texts and teachings. See Trial Tr. at 64:17-20, 64:25-65:6.
One additional piece of Nation literature specifically at issue in this case is The Five Percenter, a monthly
3

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
newspaper published by the Allah Youth Center. It contains articles about current events relevant to the Nation, information about community activities, letters to the editor, editorials, and Five Percenter lessons and “plus lessons,” including teachings from the 120 Degrees, the Supreme Alphabet, and the Supreme Mathematics. See e.g., Pl. Trial Ex. 3 (copy of the October 1995 issue of The Five Percenter received in evidence); Pl. Trial Ex. 6 (copy of the June 1996 issue of The Five Percenter received in evidence). Some of The Five Percenter’s content is directed specifically towards prison inmates, including messages advising them to better themselves and follow prison rules while incarcerated.6 Plaintiff asserts that The Five Percenter also serves as the principal and vital link for him to communicate with members of the Five Percenter community outside prison. See Trial Tr. at 69:24-70:17; see also Trial Tr. at 154:24-155:6 (plaintiff’s expert anthropologist Ted Swedenberg explaining that The Five Percenter shows Nation members how the group’s abstract principles can be applied in life); Trial Tr. at 292:17-293:15 (Nation representative Cee Aaquil Allah Barnes discussing the importance of The Five Percenter as a link to the community for prison inmates who are members of the Nation); Pl. Trial Ex. 4 (December 1995 issue of The Five Percenter containing a “Correspond with a God Column” for readers who wish to correspond with incarcerated members of the Nation).
*4 Practicing members of the Nation also have various congregative gatherings. For example, the Nation conducts “Civilization Classes,” in which more senior members-i.e., those who have studied the lessons longer than others-educate newer members about the lessons and how they can be applied. See Trial Tr. at 291:17-23. Such classes are held regularly at the Allah Youth Center. See Trial Tr. at 314:25-315:3. Nation members also gather regularly for “Parliaments” and “Rallies.” During these gatherings, members come together to help one another learn their lessons, to educate one another by conversing about the lessons’ meaning and application (which they call “building”), and to make decisions as a community. See Trial Tr. at 59:25-60:10; Trial Tr. at 287:25-288:8; Trial Tr. at 291:2-10.
Finally, as we mentioned earlier, the Nation has an official symbol referred to as the a Universal Flag, consisting of an eight-pointed star containing a number 7, a crescent, a smaller five-pointed star, and the words “In the Name of Allah.” See Trial Tr. at 155:16-23.
B. DOCS’ Policies Concerning the Nation DOCS deems the “Five Percenters” to be an “unauthorized” or “security threat” group, which is the nomenclature that DOCS uses to describe a gang or other group that it views as an organized threat to prison safety

and security.7 As a result, though DOCS’ correctional philosophy is primarily “behavior based,” Nation members like plaintiff are regarded as gang members within the New York State correctional system and are consequently prohibited from receiving or possessing any of the group’s literature or symbols, as well as from engaging in any organized activities associated with the Nation.
DOCS’ policies concerning the Nation stem from its nonrecognition policy designed for security threat group management, which seeks to diminish gangs’ power and importance by refusing to legitimize their existence. DOCS does not officially recognize unauthorized or security threat groups, even by tracking their activities internally, because it believes that “to do so would give them undue credibility and attention and embellish their importance.” Def. Findings at ¶ 45 (citing Trial Tr. at 340:18-341:19). Pursuant to its non-recognition policy, and to further prevent the growth and/or proliferation of security threat groups through recruiting, DOCS implemented Rule 105.12 of its Standards of Inmate Behavior, which states that inmates “shall not engage or encourage others to engage in unauthorized organizational activities or meetings, display, wear, possess, distribute, or use unauthorized organizational insignia or materials.” Def. Trial Ex. I. Rule 105.12 defines an unauthorized organization as “any gang, or organization which has not been approved by the Deputy Commissioner for Program Services.” Id. Materials violating Rule 105.12 are considered contraband and are not subject to the “Media Review” process DOCS has implemented for determining the acceptability of the majority of other printed and written materials received by prisoners. See Trial Tr. at 360:21-361:9. DOCS has also implemented a zero-tolerance gang policy, under which any kind of behavior deemed to be part of gang activity, including possession of written materials or gang-associated emblems or logos, will subject an inmate to discipline. See Trial Tr. at 342:13-19.
*5 Applying its complete ban on “Five Percenter” literature pursuant to its non-recognition policy, DOCS forbids plaintiff from having lessons from the 120 Degrees, possessing the Supreme Alphabet and Mathematics, or receiving or possessing The Five Percenter and other materials that are either associated with the Nation or contain its symbols.8 DOCS’ designation of the Nation as an unauthorized group also means that plaintiff can meet with no more than four other Five Percenter inmates at a time, and can only do so sporadically. See Trial Tr. at 63:6-18. He is thus prohibited from attending or organizing Civilization Classes, Parliaments, or Rallies. Finally, plaintiff is not permitted to eat his meals after sundown on fast days or to meet with other inmates on those days in order to break the fast, privileges that are extended to inmates who adhereJuly 16, 2003 to authorized religions like Nation of
4

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
Islam members and Orthodox Muslims. See Trial Tr. at 62:11-63:5.
Because DOCS’ procedures for becoming “authorized” explicitly exclude religious groups, there does not appear to be an established process by which an unrecognized group like the Nation can attain recognition as a religion from DOCS in order to avoid gang treatment .9 We surmise from the trial testimony, however, that a religious group cold become effectively “authorized” in a manner equivalent to becoming an authorized group directly through the Department of Program Services by attaining a favorable recommendation for accommodations from DOCS’ Division of Ministerial and Family Services that is subsequently approved by executive level DOCS officials. See Trial Tr. 525:25-526:15, 530:3-6 (former Director of Ministerial and Family Services John LoConte describing his role in investigating and making subsequent recommendations to executive level DOCS officials concerning inmate requests for religious accommodations). It has apparently been DOCS’ practice upon receiving an inmate request for religious accommodations to attempt to “verify the religious practice, whether or not it is something that is understandable in light of organized operational religious communities,” Trial Tr. 512:17-21, and to “reach out to the outside religious community of the inmates [making the claim]” in order to confirm the practices’ legitimacy and seek assistance in providing accommodations. Trial Tr. at 513:1-2. However, DOCS did not introduce any evidence to indicate that it has made such investigative or outreach efforts with respect to the Nation, despite having received a number of requests for religious accommodation.10 Moreover, in defending this lawsuit, DOCS has consistently avoided this issue by insisting that plaintiff cannot seek religious recognition because the Five Percenters are, in its view, a gang and not a religion.
C. Conflicting Claims About the Nature of the Nation While plaintiff claims that DOCS’ ban on Nation materials and gatherings violates his free exercise rights under the Constitution and RLUIPA, DOCS argues that his beliefs and practices as a member of the Nation are not protected because they are not sincere or religious in nature, and in any event that its ban of the Nation’s literature is justified by violence associated with Five Percenter inmates. The parties’ conflicting claims boil down to widely disparate characterizations of the nature of the Nation of Gods and Earths.
*6 DOCS, on the one hand, takes the position that “the Five Percenters,” including purported members of the Nation of Gods and Earths, is a violent organization that, like some other gangs, utilizes symbols and seemingly innocuous literature touting the group’s positive aspects to identify its members and “territory,” as well as to

recruit new members into its violent and illegal activities.11 Such activities include assaults, intimidation, extortion, drug dealing, and retaliation against fellow members who attempt to leave the group or act against other Five Percenters. See Def. Findings ¶¶ 56-58. DOCS additionally asserts that Five Percenters utilize the Supreme Alphabet and Mathematics as a code in furtherance of its disruptive activities. See Def. Findings ¶¶ 61-63, 103-104. DOCS’ stance in this case represents a shift from its previous litigation position that the content of the Nation’s literature itself is dangerous.12 Here, DOCS concedes that the Nation’s literature is innocuous, but claims that its ban on Nation materials is still necessary to preserve prison safety and security because the materials are used to facilitate the recruiting efforts and illegal activities of a violent and disruptive organization. Furthermore, according to DOCS, it would give the Five Percenters and other security threat groups increased legitimacy and status, contrary to its non-recognition strategy, if inmates were permitted access to the groups’ materials. See Def. Findings ¶¶ 42, 52, 90-92, 94-95 (outlining this justification for DOCS’ non-recognition strategy in general and for its specific application to the Five Percenters).
Plaintiff, on the other hand, asserts that the Nation is not a gang, but rather a legitimate religious group whose beliefs extol lawfulness, righteousness, freedom, justice, equality, and peace and whose literature focuses largely on positive messages, such as education, self-improvement, self-worth, and responsibility. See Pl. Proposed Findings of Fact (“Pl.Findings”) ¶¶ 19-21, 35-36. According to plaintiff and other Nation members, “[a]ny purported member who engages in violent or disruptive activities is violating the tenets of the Nation.” Pl. Findings ¶ 35; see also Trial Tr. at 287:9-288:8. He further asserts that the Supreme Alphabet and Mathematics are a religious numerology system, not a secret code, see Pl. Findings ¶¶ 16-19; see also Trial Tr. 47:13-16, and that Nation members are allowed to leave the group without reprisals.13 See Pl. Proposed Conclusions of Law (“Pl.Conclusions”) 26; see also Trial Tr. at 96:4-23; Trial Tr. at 385:6-386:11. Plaintiff thus argues that allowing him to receive the group’s literature poses no threat to prison safety or security.
In evaluating these contradictory positions, we make further factual findings below as they become relevant.
DISCUSSION
A. Sincerity and Religious Nature of Plaintiff’s Beliefs *7 As a threshold matter, we discuss DOCS’ position that plaintiff may not seek the protections of the First
5

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
Amendment or RLUIPA because he has failed to demonstrate either the sincerity of his professed beliefs or that they otherwise merit religious protection.
[1] [2] The Second Circuit set forth the scope of this Court’s inquiry into a plaintiff’s beliefs in Patrick v. LeFevre, a previous free exercise case brought by a Five Percenter inmate, by emphasizing the “limited function of the judiciary in determining whether beliefs are to be accorded first amendment protection” as follows:
It cannot be gainsaid that the judiciary is singularly ill-equipped to sit in judgment on the verity of an adherent’s religious beliefs. Mindful of this profound limitation, our competence properly extends to determining “whether the beliefs professed by a [claimant] are sincerely held and whether they are, in his own scheme of things, religious.”
Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984) (quoting United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)). Hence, a court’s scrutiny of whether a plaintiff deserves free exercise protection “extends only to whether a claimant sincerely holds a particular belief and whether the belief is religious in nature.” Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir.1996) (discussing this standard in the context of a free exercise claim brought under the Religious Freedom Restoration Act). Sincerity analysis “seeks to determine the subjective good faith of an adherent in performing certain rituals” and can be guided by such extrinsic factors as a purported religious group’s size and history, whether the claimant appears to be seeking material gain by hiding secular interests behind a veil of religious doctrine, and whether the claimant has acted in a manner inconsistent with his professed beliefs. Int’l Soc’y for Krishna Consciousness v. Barber, 650 F.2d 430, 441 (2d Cir.1981). However, “courts are not permitted to ask whether a particular belief is appropriate or true-however unusual or unfamiliar the belief may be.” Jolly,, 76 F.3d at 476. Patrick v. LeFevre further instructs us that deciding such subjective issues as the sincerity and the perceived nature of beliefs requires the factfinder-the Court in this case-to assess the claimant’s demeanor at trial and “delve into the internal operations of the claimant’s mind and in turn assess the sincerity of the held beliefs and the place occupied by such beliefs in the plaintiff’s life.” Patrick, 745 F.2d at 158; see also id. at 159. In this regard, the Circuit has cited with approval the definition of religion espoused by philosopher William James-“the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.” Id. at 158 (quoting W. James, The Varieties of Religious Experiences 31 (1910)). Having heard plaintiff’s testimony and observed his demeanor throughout the week-long trial, we find that plaintiff meets the two Patrick v. LeFevre criteria.

i. Sincerity Analysis *8 [3] We find that the trial record contained ample evidence of plaintiff’s sincerity in his beliefs and that DOCS’ arguments to the contrary are unpersuasive. Plaintiff, who is incarcerated for murder, testified that the Nation had “resurrected” him “from ... a life of total unrighteousness.” Trial Tr. at 100:8-9. He also described the manner in which his life is guided by his Five Percenter beliefs-specifically the 120 Degrees, Supreme Alphabet, and Supreme Mathematics-and his efforts to conform his life to his beliefs as follows:
When I look at that first degree in the student enrollment [the first few lessons of the 120 Degrees] and I see the black man is the God of the universe, it’s endowed me with the power to know the sky’s the limit. I manifested, I make changes in my life. I don’t do things I did before. I became a vegan, stopped eating animals. I enhanced my discipline level. My mother’s, she’s amazed I’ve been locked up so long and haven’t even had a fight. I learn to conduct myself in matters where people respect me for who I am. I don’t have to be bothered no more because people respect intelligence, and once they see you living what you say, they respect that. And I learn to conduct myself in a manner which I don’t put myself in predicaments that would lead to altercations and things of that nature.
Trial Tr. at 100:14-101:1. He reports that in doing so he has gone from being a person who was “trying to take things to the extreme, you know, on a negative aspect” to being a “very disciplined person, a person that’s constantly striving to obtain righteousness” who has “learned and grown to have respect for other people’s feelings.” Trial Tr. at 43:5-17. Examples of ways in which plaintiff has conformed his life and daily activities with his beliefs as a member of the Nation include memorizing and studying his lessons to the extent possible under DOCS’ complete ban, eschewing pork and pork byproducts, fasting on holy days, and officially changing his name from Rashaad Marria to a “righteous” one reflecting Nation values and custom (Intelligent Tarref Allah), not to mention diligently pursuing this litigation since 1997 and engaging in a letter-writing campaign to recover confiscated copies of The Five Percenter prior to that. See Trial Tr. at 38:14-18; 100:17-20. When one
6

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
considers the totality of plaintiff’s testimony, it is apparent that he has structured his daily lifestyle in conformity with the rigors of membership in the Nation for some time. This conclusion is underscored by plaintiff’s record of conduct as a prisoner, which includes earning his GED, participating in numerous other classes and programs, serving on the Inmate Liaison Committee,14 and no incidents of violence or disruptive conduct. See Trial Tr. at 126:12-14; June 18, 2001 Reply Decl. of Rashaad Marria Exs. F-J (certifications and letter of commendation documenting various classes and programs in which plaintiff participated while incarcerated).
*9 Plaintiff’s sincerity was further substantiated at trial by the largely unchallenged testimony of Cee Aaquil Allah Barnes and Born Justice Allah, representatives of the Allah Youth Center, concerning the Nation’s apparent legitimacy outside prison.15 See Trial Tr. at 296:17-298:13 (DOCS’ extremely limited cross examination of Mr. Barnes); Trial Tr. at 323:10-12 (DOCS declining to cross examine Mr. Justice Allah). There was no suggestion by DOCS that either of these representatives was involved in a criminal organization. Nor did DOCS contest the testimony that the Nation’s non-incarcerated members include police officers, doctors, lawyers, and other professionals who would presumably not be part of a violent gang. See Trial Tr. at 294:17-21. Moreover, the Allah Youth Center’s 501(c)(3) tax status and the favorable lease that it continues to receive from New York City, neither of which DOCS disputes, are strong indications that the Nation itself is not believed to be a criminal organization outside prison.16 The various community-oriented programs and activities the representative described as taking place at the Allah School and Youth Center are also consistent with plaintiff’s claims that the Nation is a sincere, legitimate religious group. See Trial Tr. at 290:16-25 (Cee Barnes testifying about health and book fairs taking place at the Allah Youth Center), 292:1-16 (Cee Barnes testifying about the Nation’s prison outreach and assistance given to former inmates); Trial Tr. at 313:17-315:19 (Born Justice Allah testifying about the youth programs run at the Allah School).
The Nation thus appears to be in the somewhat unique position of having a legitimate existence outside prison while being classified exclusively as a security threat group within DOCS.17
In support of its position that plaintiff is insincere, DOCS makes a series of unpersuasive arguments. Several concern instances in which DOCS claims plaintiff did not conform his conduct to his professed Five Percenter tenets and thereby suggests that he is essentially faking them in order to gain the legitimacy that religious protection would afford his gang participation. See Def. Findings ¶¶ 21-32. DOCS first cites three instances in which plaintiff was disciplined by prison authorities for nonviolent

conduct: (1) giving false information to a corrections officer, to wit, falsely telling the officer that he had received legal pads from the prison commissary; (2) failing to obey a direct order from a guard who apparently told him to stay away as he was attempting to observe another inmate’s grievance meeting in the sergeant’s office as the representative of the Inmate Liaison Committee; and (3) possessing an “altered item”-a toothbrush that plaintiff testified he used as a makeshift screwdriver by outfitting it with the sliding metal piece from the inside of a pair of headphones-that could be used as a weapon. See Def. Findings ¶¶ 29-31; Trial Tr. at 124:22-129:9. Whether or not one believes plaintiff’s assertions that he was disciplined unjustly in the first two instances, they are a far cry from the kind of marked or regular departure from professed beliefs that would lead us to find a plaintiff insincere. Cf. Int’l Soc’y for Krishna Consciousness v. Barber, 650 F.2d 430, 441 (2d Cir.1981) (citing, as an example of the type of inconsistent act that would lead a court to find an adherent insincere, a Jewish adherent claiming a free exercise violation from being compelled to appear in court on the Sabbath who otherwise works on Saturdays). In the case of the altered item, which no one disagrees constituted contraband, we find credible plaintiff’s explanation that he was simply using it as a makeshift screwdriver, given that he did not alter the rounded, blunt tip of the headphone piece and made no real attempt to conceal the item, which was found in a bucket filled with radio parts and other knick-knacks where it was regularly kept. See Def. Trial Exhibit OO (photocopy of “altered item”).18
*10 Other evidence of inconsistent conduct, according to DOCS, includes plaintiff’s mentioning only that the Nation’s dietary restrictions require him to eschew pork while Cee Barnes testified that the Nation’s tenets require one “not to eat pork and if you go a little bit further ... not to eat any type of scavenger, and a scavenger is like shrimp or tuna fish,” Def. Findings ¶ 28; see also Trial Tr. at 287:7-8, plaintiff’s allowing his subscription to The Five Percenter lapse for a time in 1996, see Def. Findings at ¶ 26, and plaintiff’s adopting a NOI religious designation during a period in which he attended a number of NOI services. See Def. Findings ¶ 27. The purported inconsistencies raised by the first two arguments seem sufficiently minor that we need not address them in detail here, except to note that DOCS does not contest plaintiff’s testimony that he has adhered to a vegan diet since becoming a Nation member (meaning that he does not eat shrimp or tuna) and that the lapse in plaintiff’s subscription occurred during a period in which DOCS began to confiscate the newspaper as illegal contraband.19
With respect to DOCS’ argument about the NOI designation, plaintiff testified that he sporadically attended both NOI and other groups’ services while remaining a member of the Nation in order to “get an
7

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
understanding of what separates the two and why people think the way they think,” Trial Tr. at 67:3-5, but that NOI was the only group for which DOCS required him to sign a religious designation form in order to be allowed to attend the services. See Trial Tr. at 67:22-68:16. He emphatically, and credibly, denied that his attendance at any other group’s services constituted a commitment to be a part of a religious community other than the Nation. See id. We find it unsurprising that a member of the Nation, which builds on related religious traditions, like plaintiff would seek to attend NOI services and correspondingly sign up as a NOI adherent when DOCS treats the Nation itself as an unauthorized group, especially since this is exactly what DOCS encouraged him to do in response to his requests for religious accommodations.20 Cf. Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y.1994) (finding “not persuasive” DOCS’ attempt to cast doubt on the sincerity of Santeria adherents’ religious beliefs because they had previously self-identified as “Catholic”). Moreover, DOCS’ argument that we should find plaintiff insincere because he signed up for and attended NOI services is in tension with its claim, discussed infra, that plaintiff’s beliefs are not substantially burdened by its policies because he can gain access to the Nation’s lessons through the NOI (presumably in part by attending their services).
Ultimately, the point of sincerity analysis is to “provide[ ] a rational means of differentiating between those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud.” Patrick, 745 F.2d at 157 (citation omitted). Having engaged in such an analysis, and while we do not find it inconceivable that a gang or other group might seek to cloak itself in a purported “religion” in order to increase its legitimacy, we find DOCS’ attempt to cast doubt upon the sincerity of the plaintiff’s beliefs in this case singularly unpersuasive.
ii. Religious Nature of Plaintiff’s Beliefs *11 DOCS’ claims that plaintiff’s beliefs are not “religious in nature” are similarly unpersuasive. DOCS’ argument on this issue throughout this litigation has been a semantic one, focusing on plaintiff’s and other Nation members’ reluctance to call the Nation of Gods and Earths a “religion.” See Marria v. Broaddus, 200 F.Supp.2d 280, 292 (S.D.N.Y.2002). DOCS asserts that Nation members’ refusal to call the group a “religion” indicates that it should not be treated as one and that plaintiff’s statements that he believes that the Nation fits the legal definition of a religion are merely a self-serving tactic to further this litigation. See Def. Findings ¶¶ 3-7, 23-25. In support of this argument, DOCS notes that plaintiff stated at his first deposition that the Five Percenters are not a religion, but rather a way of life. See id. ¶ 24; see also Feb. 12, 2001 Decl. of Dale Artus Ex. Q

(issue of The Five Percenter with headline and article entitled “We Are Not A Religion”).
The weakness of DOCS’ semantic argument is evident. While it is somewhat understandable that a group that refuses to describe itself as a “religion” did not inspire immediate outreach from DOCS officials, the law of the Free Exercise Clause does not turn on mere semantic distinctions. Cf. Graham v. Cochran, 96 Civ. 6166, 2000 U.S. Dist. LEXIS 1477, at *30 (S.D.N.Y. February 14, 2000) (Ellis, M.J.) (noting, in a similar case brought by a Five Percenter inmate, that “just as calling one’s beliefs a ‘religion’ does not make it such for constitutional purposes, failure to label one’s beliefs a ‘religion’ does not prohibit constitutional protection”). The significance of plaintiff’s beliefs in his life is considerably more relevant than what plaintiff and other members of his community choose to call their beliefs-“a rose by any other name,” as the saying goes, “would smell as sweet.” As already described in some detail, plaintiff has submitted substantial evidence that he has been a practicing member of the Nation since August of 1994 and that he lives by the Nation’s teachings and observes the Nation’s holy days to the extent possible under DOCS regulations. Furthermore, plaintiff, the Allah School representatives, and an expert cultural anthropologist all testified that the Nation carries the same significance for its members as Christianity, Judaism, and Islam do for their adherents, and that the Nation’s contrasting belief system means that one could not be a part of those religions and the Nation simultaneously. Overall, plaintiff has convincingly demonstrated the central significance of the Five Percenter belief system in his daily life and his understanding of that which he considers divine, which is in accordance with the William James definition of religion. Finally, it would be incongruous for us to reject the notion that the Nation’s belief system is “religious in nature” when it is, in several respects, more orthodox in both its practices and notions of the “divine” than the belief systems espoused by other groups that currently receive religious protections.21
*12 For these reasons, we find that plaintiff’s beliefs as a member of the Nation of God’s and Earths are both sincere and “religious in nature” and therefore entitled to RLUIPA and First Amendment protection under the free exercise clause. Cf. Patrick v. LeFevre, 745 F.2d 153 (2d Cir.1984) (finding for summary judgment purposes that an inmate’s beliefs as a Five Percenter were constitutionally protected); Breland v. Goord, No. 94 Civ. 3696, 1997 WL 139533 (S.D.N.Y. March 27, 1997) (same); Graham v. Cochran, No. 96 Civ. 6166, 2000 U.S. Dist. LEXIS 1477, (S.D.N.Y. February 14, 2000) (same); Lord Natural-Self Allah v. Annucci, No. 97 Civ. 607, 1999 WL 299310 (W.D.N.Y. March 25, 1999) (Heckman, M.J.) (finding, for purposes of a preliminary injunction, that “Five Percenterism, in its pure uncorrupted form, represents a system of beliefs which, outside the prison
8

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
context, does not advocate or promote violence”).
B. Religious Land Use and Institutionalized Persons Act Congress enacted the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) in response to the Supreme Court’s holding in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), declaring unconstitutional the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1(b).22 RLUIPA applies both to programs or activities that receive federal financial assistance and to substantial burdens on religious exercise having an effect on interstate commerce. 42 U.S.C. § 2000cc-1(b). Although other courts have debated the statute’s constitutionality, see e.g., Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.2002) (finding RLUIPA constitutional); Madison v. Riter, 240 F.Supp.2d 566 (W.D.Va.2003) (ruling that RLUIPA violates the Establishment Clause), defendants in this case have never made such a constitutional challenge. RLUIPA’s constitutionality, moreover, was assumed in our earlier opinion at the case’s summary judgment stage, see Marria v. Broaddus, 200 F.Supp.2d 280 (S.D.N.Y.2002), without subsequent objection by either side, and we maintain that assumption for purposes of this decision. RLUIPA provides:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person -
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). Under RLUIPA, once a plaintiff produces prima facie evidence to support a free exercise violation, the plaintiff bears the burden of persuasion over whether the regulation substantially burdens his or her exercise of religion and the state bears the burden of persuasion on all other elements. 42 U.S.C. § 2000cc-2(b). By its terms, RLUIPA is to be construed to favor broad protection of religious exercise. See 42 U.S.C. § 2000cc-3(g). The statute defines religious exercise as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Id. § 2000cc-5(7)(A). This reflects an extension of the definition provided in RFRA, which defined exercise of religion as “the exercise of religion under the First

Amendment to the Constitution.” 42 U.S.C. § 2000bb-2(4); Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir.2001) (noting the change in definition); Henderson v. Kennedy, 265 F.3d 1072, 1073-74 (D.C.Cir.2001) (noting that the definition of religious exercise in RLUIPA expanded upon the protections of RFRA). The otherwise similar language of RFRA and RLUIPA, however, suggests that cases decided under RFRA may guide this Court’s inquiry in this case. See Wyatt v. Terhune, 315 F.3d 1108, 1115 (9th Cir.2003) (noting that RLUIPA “provides rights similar to those delineated in RFRA”).
*13 In seeking to defeat plaintiff’s RLUIPA claim, DOCS argues that the record does not establish that its ban on Five Percenter literature and gatherings substantially burdens the exercise of plaintiff’s beliefs. See Def. Findings ¶¶ 9-20. DOCS further asserts that its regulations are in furtherance of a compelling governmental interest in prison security and that the ban on Five Percenter literature and congregative gatherings is the least restrictive means of effectively controlling security threat group behavior. See Def. Findings at 24-25.
C. Evaluating DOCS’ Treatment of the Five Percenters Under RLUIPA
i. Substantial Burden [4] Like its predecessor RFRA, RLUIPA requires a plaintiff to demonstrate that his right to free exercise of religion has been substantially burdened. The Supreme Court has defined a substantial burden in this context as “[w]here the state ... denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs. While the compulsion may be indirect, the infringement upon free exercise in nonetheless substantial.” Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Jolly, 76 F.3d at 477 (citing this passage of Thomas with approval in considering Rastafarian inmate’s RFRA claim). Despite DOCS’ treatment of the Nation exclusively as a security threat group and complete ban on Nation materials and literature, defendants argue that plaintiff’s Five Percenter beliefs are not substantially burdened because he can still practice certain aspects of his beliefs. These include possessing the Bible and Koran, gathering informally with five or fewer Five Percenters at certain times of day, learning the Supreme Alphabet and Mathematics orally, gaining access to lessons through NOI, celebrating certain holidays informally, and communicating with Nation members outside prison (though not through the Five Percenter newspaper). See Def. Findings ¶¶ 9-20.
Defendants’ arguments are untenable. Throughout this
9

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
litigation, plaintiff has credibly maintained that the study (alone and with others) of the 120 Degrees, Supreme Mathematics, the Supreme Alphabet, as well as other lessons found in The Five Percenter, is an integral part of the daily practice of the Nation’s beliefs, and his testimony was substantiated by that of other Nation representatives. Furthermore, in a religious community that lacks both a formal organizational structure and a fixed place of worship, The Five Percenter newspaper serves as a central link and mechanism of communication, clearly falling within RLUIPA’s broad protections of religious exercise “whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). There is no question that under DOCS’ regulations plaintiff may not possess these materials and study them with other inmates and is denied the opportunity to gather with other Nation members other than informally.23 The evidence at trial also established that the Bible and Koran serve only as secondary religious sources for Nation members, refuting DOCS’ argument that plaintiff can meaningfully practice his religion while possessing only these texts.24 Finally, DOCS’ contentions that plaintiff is able to obtain the 120 Degrees through NOI and fast on holy days contradict the evidence that plaintiff cannot receive the lessons from NOI without being an official member registered with an NOI temple outside prison,25 see Trial Tr. at 57:8-15; Blocker Decl. ¶¶ 10-11, and that he is not permitted to eat his prison meal after sundown on holy days or gather for that meal (as are NOI and Orthodox Muslim inmates), but must do so using food he has saved from the prison commissary. See Trial Tr. at 62:11-63:5.
*14 We thus find that plaintiff’s free exercise of his religious beliefs are substantially burdened by DOCS’ current policies concerning Five Percenters.
ii. Compelling Interest and Least Restrictive Means Tests Moreover, DOCS has failed to establish that its complete ban on Five Percenter materials, literature, and activities furthers a compelling security interest and is the least restrictive means of doing so under RLUIPA. It is undisputed that maintaining the safety, security, and internal order of prisons is a compelling governmental interest. See Campos v. Coughlin, 854 F.Supp. 194, 207 (S.D.N.Y.1994) (“prison security and penological institutional safety goals are indeed a most compelling governmental interest”); Muhammad v. Coughlin, 904 F.Supp. 161 (S.D.N.Y.1995) (finding compelling interest in internal order in prisons); Breland v. Goord, No. 94 Civ. 3696, 1997 WL 139533, at *4 (S.D.N.Y. March 27, 1997) (“[t]here is no question that prison safety and security are legitimate penological interests”). We are also mindful of the well-established judicial tradition of giving heightened deference to the experience and judgment of

prison officials on such “central” issues in the context of inmate First Amendment claims. Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir.2002) (citing Giano v. Senkowski, 54 F.3d 1050, 1054 (2d Cir.1995) and Thornburgh v. Abbott, 490 U.S. 401, 415, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) quoting Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) for the proposition that prison security is “central to all other corrections goals”). However, it is equally well-established that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and our tradition of deference on security matters does not require this Court to altogether abdicate its role in constitutional cases brought by inmates. Hence, while prison officials “must be given latitude to anticipate the probable consequences of certain speech, and must be allowed to take reasonable steps to forestall violence,” Giano v. Senkowski, 54 F.3d 1050, 1055 (2d Cir.1995), they “cannot merely brandish the words ‘security’ and ‘safety’ and expect that their actions will automatically be deemed constitutionally permissible conduct.” Campos, 854 F.Supp. at 204. Cf. Jolly v. Coughlin, 76 F.3d 468, 479 (2d Cir.1996) (“The DOCS policy is not insulated from scrutiny merely because the defendants brandish the concepts of public health and safety.”). Congress also made it clear in enacting RFRA/RLUIPA that “inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the [A]ct’s requirements.” Campos, 854 F.Supp. at 207 (quoting the Senate Report to RFRA); Jolly, 76 F.3d at 479 (1996) (same). Even the less restrictive test set forth in Turner v. Safley that governed prisoner free exercise claims prior to the enactment of RFRA/RLUIPA recognized that deference is not warranted when a prison regulation represents an exaggerated response to security objectives. See Turner, 482 U.S. at 97-98 (“No doubt legitimate security concerns may require placing reasonable restrictions upon an inmate’s right to marry, and may justify requiring approval of the superintendent. The Missouri regulation, however, represents an exaggerated response to such security objectives.”).
*15 Here, DOCS proposes to treat exclusively as a gang a group that has had a law-abiding existence outside prison for the better part of 40 years, that is an offshoot of another group that DOCS considers a religion, and that has practices that largely resemble those of recognized religious groups, with the consequence that DOCS has banned literature which it concedes is facially innocuous as well as any other expression of religious identity associated with the group. In order for such a ban to be upheld, there ought to be some sense that DOCS is substantially correct in its decision to treat the group exclusively as a gang and not a religion. Cf. Jolly, 76 F.3d at 479 (holding in a RFRA analysis that “the connection
10

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
between the application of a policy to an individual and the furtherance of the government’s goals must be clear”).26 The evidence DOCS presented at trial, however, failed to justify such treatment.
First, DOCS failed to provide any evidence that its decision to treat “Five Percenters” as a security threat group was either reasoned or informed. The trial record is almost entirely devoid of evidence concerning DOCS’ initial decision to treat the Nation as a gang and not a religion. DOCS possesses no records whatsoever setting forth the basis for its decision or even documenting its decision-making process concerning the Five Percenters. None of the DOCS officials who testified at trial were the decision-makers, nor could they do more than speculate about who the decision-makers were, when the decision was made, how it was made, or what information was deemed relevant.27 Moreover, DOCS admits that its classification of Five Percenters as a security threat group is not based on any guidelines or specific criteria. See Trial Tr. at 340:16. Nor, pursuant to its non-recognition policy, does DOCS maintain statistics concerning gang activity or even the rough number of gang members in the system. See Trial Tr. at 341:16-19, 345:10-13. Rather, its decision to label the Nation itself as a security threat was based on the subjective sense of the decision-makers-whomever they were-that the group as a whole was a gang. However, it is clear that DOCS knows little about the Nation’s seemingly legitimate existence outside prison,28 and DOCS failed to present any evidence concerning how it came to the conclusion that the Nation of Gods and Earths is not a religion in spite of the fact that several inmates have sought religious accommodations for their beliefs as members of the Nation. See Footnote 10 supra. It is also worth noting that DOCS’ previous litigation position claiming that the Nation’s literature contained violent messages indicates that it was misinformed about at least that aspect of the Nation at the time it made its classification and suggests that its treatment of the Nation exclusively as a gang may be based on either exaggerated fears or speculation.
Lacking a record for its decision, DOCS has attempted to justify its absolute ban post hoc by arguing that the evidence it has compiled in preparation for this litigation demonstrates that “the Five Percenters” are indeed a security threat group, and hence that the mere presence of the Nation’s materials in the prison setting or any other forms of “recognition” pose a security threat by legitimating the group and facilitating its recruiting efforts. Several DOCS corrections officers and officials who testified at trial professed a general understanding from their training and experience that Five Percenters in prison were associated with violence and disruption, but had personal knowledge of only a few incidents involving inmates identified as Five Percenters despite their decades of combined experience.29 See Def. Findings ¶¶ 66-68, 70-71, 74. Ron Holvey, a corrections official from the

New Jersey Department of Corrections with expertise in gangs and related security issues, testified that the New Jersey prison system considers the Five Percenters to be its largest security threat group and that, after reviewing the materials and statements DOCS compiled for this litigation, he would support New York’s ban on the Nation’s literature as a security threat. See Trial Tr. at 710:1-2, 722:17-21. Mr. Holvey, however, admitted that he had never spoken with a member of the Nation of Gods and Earths in New York or set foot inside a DOCS prison. See Trial Tr. at 729:24-730:5. Moreover, he went on to testify that his perception of the Nation outside prison is that it is not a religion because “[t]hey don’t have temples or mosques or churches. They don’t have a minister that comes in. There is nothing formal about their organization. They don’t have priests. They don’t have rabbis. They don’t have imams. They don’t-they worship-they consider themselves to be God.” See Trial Tr. at 741:10-14. Additional DOCS evidence concerning alleged Five Percenter gang activity came from two inmate-witnesses who claimed to have experienced violence and threats at the hands of Five Percenters. Their testimony, however, lacked consistency and credibility, leaving us with little reliable evidence beyond the fact that these two inmates regarded the Five Percenters as a gang.30
*16 DOCS’ principal form of “hard evidence” concerning the nature of the Five Percenters consisted of compilations of facility reports concerning unusual incidents, inmate transfer requests, and inmate separation requests that contain gang-like references to Five Percenters and sometimes report violent acts attributed to individuals or groups identified as Five Percenters. See Trial Tr. at 363:23-364:10, 472:9-10, 502:5-8; Def. Trial Exhibit A (inmate transfer requests not received into evidence); Def. Trial Ex. B (sample separatee reports not received into evidence); Def. Trial Exhibit C (unusual incident reports not received into evidence); Def. Trial Exhibit D (protective custody reports received into evidence); Def. Trial Ex. M (summary of separatee report “hits” for “Five Percenters” and other groups from 1990 to 1999 not received into evidence). Although there is no evidence to suggest that DOCS’ decision-makers ever reviewed these reports, DOCS argues that they constitute the kind of evidence that its decision-makers would have known about when determining that the Five Percenters were a security threat group and provide an objective basis for its decision to treat the Nation exclusively as a gang. See Def. Findings ¶¶ 77-78, 82. The transfer reports were excluded at trial because they contained hearsay within hearsay and did not otherwise exhibit indicia of reliability.31 See Trial Tr. at 434:11-453:3; Fed. R. Enid. 802; Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991) (quoting with approval the Ninth Circuit’s opinion in United States v. Passant, 703 F.2d 420, 424 (9th Cir.1983) stating that “[it is well established that entries in a police report which result from the officer’s own
11

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not.” (emphasis added by Second Circuit)); Giles v. Rhodes, No. 94 Civ. 6835, 2000 WL 1425046, at *8-*9 (S.D.N.Y. Sept.27, 2000) (ruling that prison unusual incident reports are inadmissible hearsay not subject to the Business Record Exception under Fed. R. Enid. 803(6)). There are, in fact, several additional reasons to doubt their reliability, as well as the reliability of the reports underlying DOCS’ summary chart of separatee “hits” for the term “Five Percenters,” which was similarly excluded due to DOCS’ failure to comply with the Federal Rules of Evidence by providing plaintiff with the underlying documents.32 See Trial Tr. at 468:17-480:25; Fed. R. Enid. 1006 (stating that voluminous evidence “may be presented in the form of a chart, summary or calculation,” but that the underlying documents “shall be made available for examination or copying, or both, by other parties”). Among the unusual incident reports-which document occurrences of violence or other serious disturbances-the number of relevant “hits” for references to Five Percenters was only 67 out of approximately 102,000 incidents over the ten year period from 1990 to 1999. See Trial Tr. at 241:13-24.
*17 Thus, DOCS’ post hoc justifications for its ban are inadequate to establish that it has a principled basis for labeling the Nation a security threat group. Finding DOCS’ absolute ban to be justified based on the episodic accounts of its witnesses and unreliable facility reports would require us to make a speculative leap concerning the nature of an entire group based on spotty evidence about some of its supposed members that would be in tension with what we have learned about the group’s legitimate existence outside prison. We stress that we are not saying that there are not prisoners who would describe themselves as Five Percenters who have committed crimes or otherwise violated prison regulations. However, the limitations of this “fact” should be obvious. Cf. Breland v. Goord, No. 94 Civ. 3696, 1997 WL 139533, at *5 (S.D.N .Y. March 27, 1997) (“The mere fact that inmates identified as Five Percenters have been involved in altercations with other inmates and guards does not establish that the literature at issue here caused those incidents.”). There are prisoners who would describe themselves as Catholics, Protestants, Jews, Muslims, NOI, etc. who likewise violate prison regulations, and it is easy to imagine a situation where the common ethnic or religious bond shared by members of a group could serve as the impetus for some to band together and at times act cohesively, but no one would suggest that such facts preclude the classification of these recognized groups as religions deserving of First Amendment protection.33
A hypothetical dealing with a more mainstream group further illustrates the point: imagine, for example, that one or several gangs of inmates were to form within the New York State Correctional system each of whose

membership is united by a common religious/ethnic identity-Judaism. The gangs could either be formal disruptive organizations or simply the result of an agreement among some Jewish inmates to “get each other’s back” in a pinch. Imagine further that the members of the Jewish gang(s) identify themselves by displaying the Star of David, utilize Hebrew letters (which also stand for numbers) as a “code” similar to Five Percenters’ alleged use of the Supreme Alphabet and Mathematics, and sometimes recruit new members by using the Bible and other traditional Jewish texts. DOCS’ records would soon be replete with reports containing statements that “the Jews” were involved in violent and disruptive activities and such groups would clearly pose a security threat to prison staff and inmates. But would this transform Judaism from a religion into a security threat group? Would DOCS, in such a situation, ban anyone who identified themselves as a Jew from possessing a Hebrew Bible and Alphabet or from displaying a Star of David? The trial testimony of DOCS officials convinces us that it would not, or that it would at least exhaust other avenues of redress before subjecting the “sincere believers” of a mainstream group to the type of blanket treatment that Nation members currently receive.34
*18 While we do not question the sincerity of the witnesses who testified as to their belief that there is a Five Percenters gang, their convictions alone are not sufficient. There must be admissible evidence to justify DOCS’ policies, and no such evidence was introduced. Particularly lacking was evidence concerning the structure of the alleged Five Percenters gang. We are also troubled by the “Catch-22” aspect of its policies concerning the Nation, whereby the group’s “unauthorized” classification leads DOCS to train its employees to recognize Five Percenters exclusively as gang members and otherwise innocuous literature and activities as threatening.35 As such, we find the anecdotal evidence that DOCS has presented insufficient to justify after the fact its decision to treat the Nation solely as a gang under RLUIPA. Moreover, the trial testimony and submissions throughout this case suggest that, while DOCS now formally concedes that the Nation’s literature does not contain violent or disruptive content, its officials’ perception of the threat posed by the Nation and its literature was and potentially still is affected by their belief that it espouses an objectionable racist ideology.36 Cf. Marria v. Broaddus, 240 F.Supp.2d 280, 295 (S.D.N.Y.2002) ( “ “DOCS’ argument that it bans Nation literature because of what it represents and not what it says seems disingenuous given DOCS’ prior position in past litigation from the same time period that the literature itself encourages violence.”). Whether or not these lingering objections are justified as a matter of principle, they raise questions about whether DOCS’ absolute ban on Nation literature is unrelated to the literature’s content. See generally Turner, 482 U.S. at 90 (“We have found it important to inquire whether prison regulations restricting
12

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.”); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (“The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must ... ensure that the sole reasons for imposing the burdens of law and regulation are secular.”).
As a result of the foregoing, we cannot find, based on the trial record, that DOCS’ classification of the Nation as a security threat group and absolute ban on Nation literature further a compelling security interest and is the least restrictive means of doing so.37
D. Relief This case, like others in which prison inmates have asserted their First Amendment right to practice non-mainstream religions while incarcerated, “underscores the complex nature and difficulty of accommodating various religious belief systems and tenets within a prison system, wherein violence is a real and daily threat.” Campos v. Coughlin, 854 F.Supp. 194, 197 (S.D.N.Y.1994). We have found that plaintiff is a sincere adherent to a religious belief system that qualifies for First Amendment protection, but are also prepared to accept for the purposes of this decision DOCS’ claims that prison inmates identified as “Five Percenters” have been associated with instances of violence and disruption. This raises the possibility that “the Five Percenters” may somewhat uniquely connote both a religion and a gang in the New York State prison system (though the sincere religious adherents and gang members may not be the same inmates).
*19 It is apparent, however, that in pursuing its non-recognition policy DOCS has never fully considered the possibility or the policy consequences of the Nation qualifying for First Amendment protections, and did not do so at any time during the pendency of this case. Based on our review of the evidence and applying RLUIPA’s compelling interest and least restrictive means tests in light of our determination that plaintiff is entitled to free exercise protection, we have concluded that plaintiff has clearly established his right to some of the relief requested. With respect to other of plaintiff’s requests, given the tradition of judicial deference to the considered judgment of correction officials and the indications that there are some nominal Five Percenter inmates who violate prison rules, we remand them to DOCS in order for DOCS to reevaluate its policies in light of our free exercise ruling and to determine the appropriate

accommodations that can be made consistent with security needs.38 Our conclusions are set forth below.
i. 120 Degrees In our summary judgment opinion we noted that DOCS’ position concerning the 120 Degrees, “namely, that one religious group may possess the same materials that if possessed by another contribute to gang formation” was “a challenging one to sustain.” See Marria v. Broaddus, 200 F.Supp.2d 280, 295 (S.D.N.Y.2002). Based on the trial evidence, DOCS cannot properly prevent plaintiff from receiving and possessing the 120 Degrees consistently with the Free Exercise clause and RLUIPA. As the book serves as the central text in plaintiff’s religious belief system, he is clearly substantially burdened if he is denied access to it. In any event, its content is identical to the texts DOCS currently permits NOI to use and possess. Thus, because the 120 Degrees is associated with more than one group, including a currently “authorized” religious group, DOCS cannot tenably argue that its mere presence in prison legitimizes gang activity. Therefore, we order DOCS to permit plaintiff to possess a copy of the 120 Degrees in accordance with his beliefs as a member of the Nation of Gods and Earths, and that his access cannot be conditioned upon his joining the Nation of Islam.39
ii. Supreme Alphabet and Mathematics We similarly grant plaintiff’s request to be allowed to possess a copy of the Supreme Alphabet and Mathematics. As we noted earlier, these numerological devices are central aspects of the Nation’s beliefs and practices, have remained unchanged since the 1960’s, and are widely available to law enforcement on the Internet and elsewhere. DOCS admits that the alleged “code” is a simple one that can be learned by inmates orally even under its current ban, but maintains that the Supreme Alphabet and Mathematics are sometimes used by Five Percenter inmates to send coded messages to one another in furtherance of gang activities and would require the expenditure of significant resources to train officers to recognize and decode if they were disseminated among the inmate population (DOCS has also argued that the Five Percenter newspaper poses a security threat because it contains “code”). See Def. Findings ¶¶ 60-63, 103-104; Trial Tr. 407:13-15; Trial Tr. 665:14-19; Trial Tr. 692:9-693:8. While the Supreme Alphabet and Mathematics may indeed be susceptible to being used as a code, DOCS’ arguments are unpersuasive. Toni Bair, a professor of criminal justice, former Warden of Virginia’s Mecklenberg Correctional Center “Supermax” facility, and former assistant commissioner of the New York City Department of Corrections who testified as plaintiff’s expert on prison security, succinctly refuted DOCS’
13

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)
claims that the Supreme Alphabet and Mathematics threaten prison security:
*20 It’s published. The code is published. It is on the Internet. It is in the newspapers. It’s everywhere. In order for a code to be effective and used, you know, covertly to be subversive or create problems in the institution, the code must be unbreakable and must not be, you know, common knowledge.... To ban the Mathematics and Alphabet because it is a code, you know, would be ludicrous. If we do that, why don’t we ban Spanish, for example, because I would daresay that there is not a tremendous number of correctional officers in DOCS that are bilingual and yet we allow Spanish not only to be spoken but documents inside institutions that are Spanish ... and they are much more difficult to translate than this code would be.
Trial Tr. at 246:17-247:12.
We are persuaded that the Supreme Alphabet’s and Mathematics’ primary purpose is a religious one, and that, to they extent inmates might attempt to use them as a code, messages could be translated with minimal effort and training. Furthermore, the ability of inmates to communicate with each other by using the Supreme Alphabet and Mathematics in covert fashion would appear to be more challenging and limited than conversations in a foreign language not spoken by guards. Hence, we see no connection between DOCS’ current ban on possessing the Supreme Alphabet and Mathematics and a compelling security interest, and order that plaintiff be permitted to possess them.40
iii. Other Materials and Symbols, Gatherings, and Fasts We remand the remainder of plaintiff’s claims to DOCS to reevaluate its policies concerning the Nation and determine what materials and religious practices it can accommodate in light of our ruling that plaintiff’s beliefs as a member of the Nation are entitled to free exercise and RLUIPA protection. It is incumbent upon DOCS to make a determination about the feasibility of allowing sincere adherents like plaintiff to possess literature and to engage in religious practices in light of its security concerns.
In particular, DOCS must reevaluate how, if at all, it can accommodate plaintiff’s request to receive The Five

Percenter. In this regard, plaintiff has proposed two suggestions addressing DOCS’ concerns about permitting security threat group members to use innocuous literature to recruit, control, and intimidate as less restrictive alternatives to a complete ban on the Nation’s literature. First, plaintiff suggests that DOCS utilize the existing media review committee process to redact symbols that it views as posing a security threat. Alternatively, plaintiff proposes that DOCS maintain a copy of The Five Percenter in the prison library that plaintiff can presumably sign for and read individually during normal library time without removing the copies from the library. At trial, DOCS’ efforts to address the library suggestion were particularly unconvincing.41 On remand, because plaintiff has established that his religious beliefs are substantially burdened by DOCS’ current ban on The Five Percenter, DOCS bears the burden of demonstrating why his proposals are infeasible on remand.
*21 On the issue of congregative gatherings, such as parliaments, rallies, and civilization classes, DOCS has thus far dismissed the possibility of allowing such activities on the assumption that any sanctioned congregation of members of an unauthorized group would elevate that group’s status and permit the group’s members to conspire to engage in violent activities. Here again, DOCS’ position suffers from the incorrect assumption that all Five Percenters are gang members. DOCS has also pinned its objections in part on the assumption that the gatherings would be unsupervised. See Def’s. Findings at ¶ 122 (“Permitting plaintiff to participate in unsupervised inmate led parliaments would create a security risk in the prison by allow [sic ] Five Percenters to organize, recruit additional members and serve as a forum for criminal conspiracy.”) (emphasis added); Trial Tr. at 461:3-11 (Dale Artus stating that his understanding of a parliament is “an unsupervised meeting place for the individuals who wish to be involved in this type of activity to be allowed to meet and learn” that he would view as “detrimental to the safety and security of the facility and the department”). Plaintiff’s counsel, however, has made it clear that he is not requesting unsupervised parliaments, and we note that Born Justice Allah from the Allah Youth Center testified at trial that he and other Nation members from outside prison would volunteer to assist DOCS in accommodating rallies and parliaments through advice and supervision. See Trial Tr. at 316:20-317:9. We recognize, however, that DOCS must consider security concerns, as well as considerations of limited time, space, and resources, in evaluating whether and how accommodations can be made for such gatherings.
Finally, DOCS must determine what can be done consistent with security concerns with respect to plaintiff’s requests to receive late meals and gather with other inmates when he fasts in observance of Holy Days.
14

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)

CONCLUSION
Based on the foregoing, it is ordered that DOCS conform its policies concerning the group known as the Nation of Gods and Earths with this ruling, and further that DOCS

report the results of that policy reevaluation to the Court in sixty days.42
IT IS SO ORDERED.
	  

Footnotes

1

Plaintiff legally changed his name in December 2001. See Trial Transcript (“Trial Tr.”) at 38:14-18. Apparently, he had also

sought to do so approximately two years earlier, but without success. See id. at 38:21-39:7.

2

It should be clear that in protecting plaintiff’s constitutional rights to practice his adopted religion, we are fulfilling our sworn duty

and in no way endorsing or heralding the Nation’s tenets, several of which we find repugnant to the principles of tolerance and

equality that are fundamental to our Constitution and the ethos of our country. See Thomas v. Review Board of Indiana

Employment Security Division, 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (“religious beliefs need not be

acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”).

3

While the NOI and the Nation differ in their interpretation of the 120 Degrees, referred to as the “Book of Supreme Wisdom” or

“Lost-Found Muslim Lessons” by the NOI, both groups study them. See April 12, 2001 Decl. of A. Blocker (“Blocker Decl.”) ¶¶

8-11. DOCS permits the Book of Supreme Wisdom to be issued to any inmate who is a registered member of NOI, but Nation

members who have not registered as members of the NOI are not permitted to view these materials. See id.

4

Holy days observed by the Nation include the anniversaries of the birth and death of Clarence 13X Smith and the birthdays of

Elijah Muhammad and Fard Muhammad. See Trial Tr. at 62:6-8, 18. The Nation, however, does not participate in Ramadan,

Jumma, and some other traditional Islamic customs practiced by NOI members. See Pl. Trial Ex. 180.

5

For example, in the nomenclature of the Supreme Alphabet, the letter “A” stands for “Allah,” “B” stands for “Be,” and “C” stands

for “See” or “Cee.” In the Supreme Mathematics, the number “1” represents “Knowledge,” the number “2” represents “Wisdom,”

and the number “3” represents “Understanding.” See id. One example of how Nation members apply this numerological system to

their lives, according to plaintiff, is that “1” (“Knowledge”) and “2” (“Wisdom”) must precede “3” (“Understanding”). See Trial

Tr. at 98:8-24 (plaintiff explaining how he uses the Supreme Alphabet and Mathematics to understand the world).

6

One such article instructs inmates: “ ‘Don’t serve time, but make time serve you.’ is the principle that you should adopt internally

in order to return back to your family and community as an asset and not a continued liability ... When you serve time negatively,

you waste precious moments of your life.” See Pl. Trial Ex. 3 at Bates No. 240 (article entitled “Belly of the Beast” from the

October 1995 issue of The Five Percenter ). The article further instructs inmates to “participate to the best of your ability within

the rules of your respective prison and reap what you sow in this righteousness.” See id.

7

In doing so, DOCS does not distinguish between “Five Percenters” and members of the Nation of Gods and Earths. See e.g., Def.

Proposed Findings of Fact and Conclusions of Law (“Def.Findings”) ¶ 36 (“Plaintiff is able to participate in DOCS’ educational

and rehabilitative programs in spite of the fact that he is a member of the Five Percenters.”). As previously noted, however, DOCS

and plaintiff do not necessarily use the term “Five Percenter” to identify the same individuals.

8

According to plaintiff and a supporting affidavit submitted for summary judgment purposes by an inmate NOI minister, members

of the Nation are also unable to obtain the 120 Degrees in bound format from NOI members, as only inmates registered with an

NOI temple outside of prison are permitted to have those lessons. See Trial Tr. at 57:8-15; Blocker Decl. ¶¶ 10-11.

9

DOCS Directive 4670, which deals with inmate organizations, makes it clear that religious groups seeking to meet regularly for

worship or prayer services cannot apply for inmate organization status. See Def. Trial Ex. F2 (Directive 4670) at ¶ II(C)(2). Trial

testimony reflected some confusion concerning exactly how a group claiming to be religious in nature like the Nation can become

“authorized.” Compare Trial Tr. at 390:18-25 (DOCS official Richard Roy testifying that he did not know the answer to plaintiff’s

counsel’s question about whether there was a way for a group claiming religious status to become authorized by DOCS short of

litigation) with Trial Tr. 416:9-22 (Richard Roy testifying that, though he was not familiar with the details, there is a procedure by

which religious groups can become recognized within DOCS through the Division of Ministerial and Family Services) and Trial

Tr. at 525:25-528:7 (former DOCS Director of Ministerial and Family Services John LoConte discussing generally how he handled

requests for religious accommodation within DOCS, but stating that he did not make the final decision about accommodating

religious requests and that “[o]ur recognition I don’t believe is that important.”). The evidence introduced at trial also indicates that

at least two other Black Muslim groups, the Nation of Islam and Moorish Science Temple, resorted to litigation similar to this one

before DOCS ceased treating them as “unauthorized groups” and began classifying them as religious groups. Both cases were

settled without court rulings on the plaintiffs’ claims for injunctive relief from DOCS’ non-recognition of the groups in question.

15

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)

See Trial Tr. 389:6-20; 533:8-535:25; see also Muhammad v. Coughlin, No. 91 Civ. 6333 (S.D.N.Y.) (Nation of Islam); Gilmore-Bey v. Coughlin, No. 93 Civ. 6592 (S.D.N.Y.) (Moorish Science Temple).

10

See e.g., Breland v. Goord, No. 94 Civ. 3696, 1997 WL 139533 (S.D.N.Y. March 27, 1997); Graham v. Cochran, No. 96 Civ.

6166, 2000 U.S. Dist. LEXIS 1477, (S.D.N.Y. February 14, 2000) (Ellis, M.J.); Lord Natural-Self Allah v. Annucci, No. 97 Civ.

607, 1999 WL 299310 (W.D.N.Y. March 25, 1999) (Heckman, M.J.); Pl. Trial Exhibit 182 (October 29, 1996 letter from DOCS

Deputy Commissioner for Program Services Raymond Broaddus to an inmate regarding a request for religious accommodations

stating “I have been informed that the Five Percent Nation is not a religion. Therefore, there is no religious faith to practice.”); Pl.

Trial Ex. 81 (October 19, 1998 letter from defendant Warith Deen Umar, DOCS coordinator for Islamic Affairs, to plaintiff stating

that “there are no directives or rules and regulations regarding the Five Percenters. The reason for this is the courts have ruled the

Five Percenters are not a legitimate religious group”).

11

According to DOCS, “[j]oining a gang such as the Five Percenters is about money, power and respect,” Def. Findings ¶ 87, and

“[t]he Five Percenter newspaper is used as a tool by inmates to recruit other gang members and sometimes inmates are recruited

into joining the Five Percenters without realizing that they may be asked to participate in violent or illegal activities.” See id. ¶ 91.

12

In previous litigation arising from the same time period as this one, DOCS claimed that Five Percenter literature incited violence

against white people with messages like “kill the White devils and their families” and asserted that a statement urging Nation

members to “struggle to get out of prison houses” through education was an incitement to escape (in full, the statement read:

“we’ve experienced the trials and tribulations of his prison house and we must now struggle to get out of his prison houses and

remove the veil that has been placed over our people’s minds. This can only be done through education, i.e., proper education.”).

See Breland v. Goord, No. 94 Civ. 3696, 1997 WL 139533, at *2 (S.D.N .Y. March 27, 1997). DOCS’ content-based justification

for banning the Nation’s literature was rejected by Judge Baer of this Court, who found that the Nation’s literature contained no

such incitements to violence and that DOCS had “unfairly characterized the material at issue” and “unfortunately focused on the

non-traditional nature of plaintiff’s religion.” See id. at *2, *6.

13

At the summary judgment stage of this case, plaintiff submitted the declarations of numerous Nation members, living both within

and outside the DOCS system, asserting that the Nation is not a gang and does not promote violence or retaliate against members

who leave. See June 26, 2001 Decl. of Cee Aaquil Allah Barnes (detailing the activities of the Allah Youth Center and asserting

that the Five Percenters are not a gang); April 12, 2001 Decl. of Wendell Williams (asserting that Five Percenters are not a gang

and do not engage in gang like activities); April 13, 2001 Decl. of Terayus Jones (same); April 25, 2001 Decl. of Rahiem Buford

(same); April 18, 2001 Decl. of Gabriel Clausen (same); October 6, 200 Decl. of H. Khalif Khalifah (same).

14

We note that, according to DOCS witness Superintendent Joseph Smith, serving on the Inmate Liaison Committee is the kind of

“positive” activity through which a charismatic inmate can become a “stabilizing influence” within a prison facility. Ironically,

Smith sought to contrast this kind of positive activity with his negative perception of Five Percenter inmates. See Trial Tr. at

652:25-653:7.

15

Mr. Barnes is the Center’s Chairman and Mr. Justice Allah serves as an elder and administrator.

16

DOCS does argue that “Five Percenters outside of prison have engaged in criminal activity.” See Def. Findings ¶ 80. However, this

argument-relying solely on Shawangunk Superintendent Joseph Smith’s recollections of supervising several Five Percenters as a

probation officer in the 1970’s, Investigator Ron Holvey’s experiences with alleged Five Percenter gangs in New Jersey, and an

inmate’s testimony that he participated in Five Percenter gang activities outside prison after joining the group in a boys home-does

not really address or challenge the Nation representatives’ testimony to the effect that the Nation is a legitimate organization

engaged in constructive and lawful activities outside prison.

17

According to DOCS’ former Director of Ministerial and Family Services John LoConte, the existence of an established, legitimate

religious community outside of prison would have been an important factor is his determination of whether a prisoner deserved

religious accommodations during his tenure as DOCS Director of the Division of Ministerial and Family Services. See Trial Tr. at

536:23-538:8, 538:17-840:2; see also Trial Tr. 543:4-13 (LoConte testifying that DOCS recognizes Wiccans as a religion because

of their “visible presence,” complete with articulated doctrine, dogma, traditions, and rituals, outside prison).

18

Plaintiff’s expert on prison administration, former federal prison warden Toni Bair, reached a similar conclusion upon examination

of the photocopy during his testimony. See Trial Tr. at 220:18-221:15.

19

In a similar vein, we reject DOCS’ argument that plaintiff’s insincerity is evidenced by his failure to formally request parliaments

and other gatherings until 2000, see Def. Findings ¶ 22, since DOCS’ complete ban on the Nation’s materials and previous denials

of plaintiff’s requests to receive them made it fairly clear that such a request would not have been granted and plaintiff has

represented that he did so merely to ensure that he had exhausted his administrative remedies.

20

In response to his inquiries concerning confiscated copies of the Five Percenter newspaper, DOCS Coordinator for Islamic Affairs,

Warith Deen Umar responded as follows:

16

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)

Dear brother: This responds to your letter of September 22, 1998. There are no directives or rules and regulations regarding Five Percenters. The reason for this is because the courts have ruled that Five Percenters are not a legitimate religious group. The New York State Department of Correctional Services does not acknowledge the claims of inmates who designate themselves as Five Percenters. You may want to explore some of the teaching of the Muslims and the Nation of Islam in your facility.
Your brother in Islam, Imam Warith Deen Umar Ministerial Program Coordinator Ministerial and Family Services Pl. Trial Ex. 81 (emphasis added). We note that, to the Court’s knowledge, no case law existed to substantiate Imam Umar’s assertion that “the courts have ruled that Five Percenters are not a legitimate religious group.”

21

Despite markedly different conceptions of “the divine” from most Americans, heterodox groups like Rastifarians, Wiccans, and

Hare Krishnas have all been afforded free exercise protection. Here, the Nation’s doctrine is predicated on a an essentially

monotheistic belief in God, its central and secondary texts-including the 120 Degrees, Bible, and Koran-are largely identical to

those of other accepted religions, the Supreme Mathematics and Supreme Alphabet are reminiscent of other religions’ use of

numerology devices to understand the world, and the nature of its observances is far from uncommon. Moreover, the Nation

appears to be a close relative of an officially recognized religion, the Nation of Islam.

22

The constitutional controversy surrounding RFRA and the subsequent congressional enactment of RLUIPA have been discussed

extensively elsewhere, see e.g., Madison v. Riter, 240 F .Supp.2d 566, 568-70 (W.D.Va.2003), and familiarity with RLUIPA’s

history is assumed.

23

According to John LoConte, DOCS’ former Director of Ministerial and Family Services, such informal gatherings “wouldn’t be

enough” to allow Catholic inmates to practice their religion while in prison. See Trial Tr. at 532:11-17. Moreover, DOCS admitted

the importance of formal gatherings in plaintiff’s belief system at an earlier stage of this litigation when, in attempting to show that

plaintiff is not a sincere believer in the Nation’s tenets because he has never attended a parliament (despite having banned him

from doing so), DOCS asserted that parliaments are “a fundamental ritual” for Nation members that, if consistently skipped, would

be equivalent to “a Catholic never going to Mass.” Defs.’ Summ. J. Reply Mem. at 9.

24

DOCS’ argument is tantamount to arguing that a Christian’s or Muslim’s beliefs would not be substantially burdened if he or she

were permitted to possess the Jewish Bible, but not the New Testament or the Koran. The courts have recognized, however, that it

is the free exercise of a plaintiff’s religion, not someone else’s, that the First Amendment and RLUIPA protect. See Breland v.

Goord, No. 94 Civ. 3696, 1997 WL 139533, at *5 (S.D.N .Y. March 27, 1997) (citing Thornburgh v. Abbott, 490 U.S. 401, 418,

109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) and O’Lone v. Shabaaz, 482 U.S. 342, 352, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987)). But

cf. Fraise v. Terhune, 283 F.3d 506, 519-20, (3d Cir.2002) (accepting such an argument in ruling that alternatives means existed

for inmates to practice their beliefs under New Jersey’s treatment of Five Percenters exclusively as a security threat group).

25

In making its argument that plaintiff can gain access to the 120 Degrees from NOI members, DOCS apparently relies on plaintiff’s

testimony that NOI conducts introductory classes for non-members, similar to the Nation’s civilization classes, at which the

lessons are sometimes discussed. See Trial Tr. at 60:20-61:14; Def. Findings ¶ 19. However, plaintiff’s immediately following

testimony makes it clear that he is not able to obtain the 120 Degrees, or even consistent study of them, merely by attending such

classes. See Trial Tr. at 61;15-24.

26

DOCS places undue reliance on the Second Circuit’s decision in Giano v. Senkowski, 54 F.3d 1050 (2d Cir.1995), which held that

it was unnecessary for DOCS to establish an explicit link between such “emotionally charged” materials as nude photographs of

inmates’ wives and girlfriends and violence in order to justify its ban on such materials. See Giano, 54 F.3d at 1055; Def. Findings

at 20-21. Here, unlike instances in which common sense would indicate that prohibited materials may pose a threat to security,

DOCS predicates its policy banning any and all religious expressions associated with the Nation on the group’s allegedly violent

nature, which is not simply a matter of common sense.

27

Although DOCS claims that its classification of the Five Percenters as a gang is based on a history of violence and disruptive

activities associated with the group, as well as its employees’ day-to-day reporting of such activities, Def. Findings ¶ 53; Trial Tr.

at 378:7-15, DOCS official Richard Roy testified that there was probably no stack of materials that was reviewed by DOCS’

decision-makers at the time they classified the Nation as unauthorized. See Trial Tr. at 408:2-18.

28

DOCS official Richard Roy, for example, testified that he did not believe that there was a connection between the members of

DOCS’ alleged “Five Percenters” prison gang and an outside organization called the Nation of Gods and Earths, see Trial Tr. at

346:16-19, while another official, Dale Artus, testified that “[t]he term “Nation of Gods and Earths” is not in my vocabulary. It is

nothing I’ve been-it is just-it doesn’t come about in the course of my private life or in my professional life other than this

litigation.” See Trial Tr. at 481:8-10.

29

The most credible of these accounts in light of the evidence concerning the Nation’s legitimate existence outside prison was that of

Deputy Superintendent for Security Services at Collins Correctional Facility Sibato Khahaifa, who testified that, as an Orthodox

Muslim who grew up in Brooklyn, he understood the Nation to be a religious group that had split from the NOI prior to joining

DOCS. See Trial Tr. at 756:3-9. In recounting his experiences as a corrections officer in several DOCS facilities, Khahaifa also

drew a distinction between some Five Percenter inmates who he perceived as sincere adherents of the Nation and others who

17

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)

appeared to be behaving in a gang-like fashion. See Trial Tr. at 757:11-758:5. 766:11-18.

30

One, who claimed to be a former member and participant in illegal activities on behalf of the Five Percenters, also admitted to

having participated in numerous stabbings and other acts of violence, including altercations with members of the Latin Kings gang

and inmates he identified as “the Muslims,” even after the period he was allegedly a Five Percenter. See Trial Tr. at 814:9-816:7,

818:3-820:12, 823:8-824:8, 826:5-20. Yet, he claimed that his safety is at risk because Five Percenters were seeking to retaliate

against him for “going against” the gang in a fight and thereafter leaving the group. See Trial Tr. at 799:22-800:2; Trial Tr. at

805:18-806:11. The other, a former Latin Kings gang “captain,” admitted to having “snitched” on four other Latin Kings members

after they had killed a fellow prisoner who was a Five Percenter, making it difficult for us to gauge his claims that he feared for his

safety because of the potential for retaliation from Five Percenters in addition to the Latin Kings. See Trial Tr. at 846:10-20,

851:20-852:1, 853:7-854:1.

31

We note that, according to plaintiff’s prison security and administration expert Toni Bair, such reports are “[o]ne of the most

unreliable sources of information we have in prisons” because they are obtained from individuals (“snitches”) who are often

desperate to get themselves out of some kind of trouble and view it as beneficial to name groups rather than individuals in order to

insure that they be placed in protective custody. Trial Tr. at 244:10-245:14.

32

First, there are a substantial number of duplicates among the transfer requests that DOCS submitted as trial exhibits, see e .g., Def.

Trial Ex. A at Bates Nos. 018 & 023, 019 & 024, 010 & 026, 012 & 027, 013 & 028, and it is possible that such duplicates could

be affecting the number of “hits” contained in DOCS’ separatee chart as well. Second, some of the transfer requests and unusual

incident reports were of questionable relevance to the Five Percenter gang activities that were alleged, raising similar concerns

about the relevance of the separatee reports underlying DOCS’ summary chart of relevant “hits.” See e.g., Def. Trial Ex. A at Bates

Nos. 032, 109, 116 (transfer requests); Def. Trial Ex. C. at Bates Nos. 006, 043 (unusual incidents). Third, DOCS has defined the

Five Percenters as a security threat group for some time and apparently trains its employees to recognize them as such, which

undoubtedly affects the reports. See Trial Tr. at 488:12-19 (Dale Artus explaining that DOCS’ crisis intervention unit devotes a

four-hour portion of its two week basic training specifically to unauthorized groups); Trial Tr. at 632:19-23 (Superintendent Joseph

Smith testifying that his understanding of the Five Percenters as a gang came in part “from training”). Fourth, because DOCS treats

any organizing activity associated with an unauthorized group as a threat to prison safety and security, its classification of the Five

Percenters as “unauthorized” is in some sense self-fulfilling. Activities that would be permissible were they conducted by a

religious group, such as recruiting, gathering, passing on literature, are deemed threatening and fuel both the group’s and

individuals’ negative reputations reflected in the various reports. See e.g., Trial Tr. 521:20-24 (John LoConte explaining that, at the

time he first learned about the Nation, he was hearing that “[both the Nation of Islam, the Nation of Gods and Earths ... they were

attempting to infiltrate the Muslim community in order to establish a congregation the opportunity to the [sic ] meet together. They

were problematic.”); Def. Trial Ex. D at Bates No. 014 (stating-with a negative connotation-that the Five Percenters were going to

“take some action to establish themselves in the facility”); Def. Findings ¶¶ 89-90 (treating as negative the notion that plaintiff’s

alleged religious beliefs would require him to teach civilization to others).

33

For example, one of the inmates who testified on DOCS’ behalf in this case referred repeatedly to altercations between himself and

“Muslims” and replied “Yes sir” when he was asked whether there were any Muslim gangs. See Trial Tr. at 814:9-10. We also note

that a number of the unusual incident reports containing the term “Five Percenter” proffered by DOCS also contain the term

“Muslim.” See Trial Tr. 243:16-21. Clearly, however, none of this would lead us to conclude either that Islam is not a religion or

that Muslims would properly be classified by DOCS as a security threat group.

Additionally, at least one Second Circuit decision appears to document a street gang whose teenage founders were apparently

Five Percenters, but nonetheless existed separately from the Nation of Gods and Earths. See United States v. Miller, 116 F.3d

641 (2d Cir.1997) (discussing the formation of the “Supreme Team” gang by a group of teenage Five Percenters in the

mid-1980’s).

34

The Court posed a similar hypothetical to Shawangunk Superintendent Joseph Smith, see Trial Tr. at 646:2-21, who replied: “[are

we going to say that we are no longer going to permit religious services or participation in religious holidays, I would say, no, that

would be very unlikely, because I am going to go on a limb and say that this group that you have described would be limited to a

few, and that once we were able to take proper action we should be able to go on as business as usual.” Trial Tr. at 646:22-647:3.

Superintendent Smith added, with regard to the Five Percenters: “Well, I can only answer that as we deal with them today. They

are not an authorized religion at this point within our system.” Trial Tr. at 647:25-648:2. Similarly, plaintiff’s counsel posed

hypothetical questions concerning violence by members of the NAACP to Dale Artus, the former director of DOCS’ crisis

intervention unit, who testified that he would recommend that the violent individuals “be held individually accountable for their

acts” and “would not recommend that the overall program be disbanded” because he viewed the overall NAACP program as

positive and it was, unlike the Five Percenters, an authorized organization. See Trial Tr. at 491:13-493:13. The DOCS officials’

testimony stands in sharp contrast to that of Ron Holvey, who DOCS called as an expert on gangs and gang management, as well

as the status Five Percenters in the New Jersey State Correctional system (which segregates those identified as “core members”

from the rest of its prison population). When asked whether he would declare the Catholic Church to be a security threat group if

numerous prisoners identified as Catholics were being written up for violent acts, he responded: “Within the prison, we would have

to, yeah, oh yeah, and I’m sure I would be sitting in another courtroom for that one.” Trial Tr. at 748:23-749:4.

35

For example, in addition to testifying that his perception of the Five Percenters as a gang came in part “from training,” see Trial Tr.

18

Marria v. Broaddus, Not Reported in F.Supp.2d (2003)

632:19-23, Shawangunk Superintendent Joseph Smith agreed that the Nation’s unauthorized status makes it “easy” for him to treat the whole group as a gang when he would otherwise seek to distinguish sincere believers from disruptive members of a mainstream religious group. Trial Tr. at 647:25-648:6. Similarly, in response to plaintiff’s counsel’s questioning about DOCS’ basis for treating the Nation as a gang in comparison to other authorized groups, DOCS official Richard Roy responded: “I would go the other way; they were not an authorized organization, so therefore they could not participate as an organization.” Trial Tr. at 390:10-12.

36

DOCS official Richard Roy, for example, testified that he found an article in The Five Percenter expressing the opinion that the

death penalty was a form of legalized genocide and that the white man has always used his laws to justify “devilishment”

potentially dangerous to prison security because it was hateful toward members of another race, and moreover that he and other

DOCS employees reviewed the content of The Five Percenter when DOCS was making the decision to ban the Nation’s materials.

See Trial Tr. 419:15-412:14. Joseph Smith also agreed that he believes that the Five Percenter materials are dangerous. See Trial

Tr. 673:16-18. Ron Holvey-though not a DOCS official-testified that he found the racist aspects of the Nation lessons a threat to

prison security and that he objected to the Nation’s beliefs because “the overall nature of the group promotes violence,” but that

these views had nothing to do with his characterization of the Nation as a security threat group. See Trial Tr. at 737:7-738:19.

37

We acknowledge that there is some case law in tension with our decision in this case. See Fraise v. Terhune, 283 F.3d 506 (3d

Cir.2002) (finding the New Jersey Department of Corrections’ treatment of Five Percenters as a security threat group justified for

summary judgment purposes under a Turner v. Safley analysis); In re Long Term Administrative Segregation of Inmates

Designated as Five Percenters, 174 F.3d 464 (4th Cir.1999) (same with regard to the South Carolina Department of Corrections);

Lord Natural-Self Allah v. Annucci, No. 97 Civ. 607, 1999 WL 299310 (W.D.N.Y. March 25, 1999) (Heckman, M.J.) (finding for

preliminary injunctive purposes that DOCS’ ban on Five Percenter materials was justified under Turner ); Buford v. Goord, 258

A.D.2d 761, 686 N.Y.S.2d 121 (3d Dep’t.1999) (dismissing, in an Article 78 proceeding, a pro se litigant’s claim that DOCS’

policies banning his receipt of Five Percenter materials violated his first amendment rights). Each of these cases, however, applied

a more deferential standard of review than the RLUIPA analysis we apply in this decision, and the three federal case involving free

exercise claims all assumed that Five Percenter beliefs would receive free exercise protection, which accords with our ruling in this

case. Moreover, these other courts do not appear to have had an equally well-developed evidentiary record concerning the Nation’s

legitimate existence outside prison as we did in this case. Finally, we simply disagree with some of the findings and conclusions

reached by those courts, most fundamentally the notion that prison policies classifying and treating an entire group as a gang can

be upheld despite the fact that they are predicated on a faulty assumption that the group has no legitimate existence as a religion.

38

Such a remand, which was requested by DOCS at trial, see Def. Findings at 26, is consistent with both the federal courts’ tradition

of deference and the Supreme Court’s guidance concerning their appropriate supervisory role in prisoner litigation: “We have said

that ‘[t]he strong considerations of comity that require giving a state court system that has convicted a defendant the first

opportunity to correct its own errors ... also require giving the States the first opportunity to correct the errors made in the internal

administration of their prisons.” ’ Preiser v. Rodriguez, 475 U.S. 475, 492 (1973).

39

In accordance with our remand of plaintiff’s requests to possess Nation symbols and other materials, we make no ruling at this time

concerning what symbols, if any, DOCS must permit plaintiff to receive and display along with the 120 Degrees.

40

Again, in accordance with our remand of the remainder of plaintiff’s claims to DOCS, we make no ruling at this time about

whether plaintiff can possess or display Five Percenter symbols in conjunction with his possession of the Supreme Alphabet and

Mathematics.

41

DOCS’ claims that maintaining a library copy of The Five Percenter would be infeasible because it would entail “separating

plaintiff from other inmates” and “designating a separate room for plaintiff, and a separate secure space to secure the newspapers,

assigning one or more staff members to supervise his movement to and from the room and assigning one or more members to issue

him the Newspaper [sic ] and to retrieve it,” as well as elevating the group’s statute through such special treatment. See Def.

Findings ¶¶ 106-108. This “parade of horribles” seems rather exaggerated.

42

We would also be remiss if we failed to express the Court’s gratitude to pro bono counsel for their excellent effort and

professionalism throughout this case and to Sullivan & Cromwell for its sponsorship of their pro bono positions.

	  

19

 
 Marria v. Broaddus, Not Reported in F.Supp.2d (2004)
KeyCite Yellow Flag - Negative Treatment Declined to Extend by Joseph v. Fischer, W.D.N.Y., October 24, 2012
2004 WL 1724984 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Rashaad MARRIA, Plaintiff, v.
Dr. Raymond BROADDUS, Deputy Commissioner of Programs; G. Blaetz, Chairperson of Green Haven Correctional Facility Media Review
Committee; Warith Deen Umar, Coordinator for Islamic Affairs; and Glenn Goord, Commissioner of the New York State Department of Corrections,
Defendants.
No. 97Civ.8297(NRB). | July 30, 2004.
Attorneys and Law Firms
Damore Viola, Sullivan & Cromwell, New York, New York, for Plaintiff.
Benjamin Lee, AAG, State of New York Office of the Attorney General, New York, NY, for Defendant.
Opinion
OPINION AND ORDER
BUCHWALD, J.
*1 Plaintiff Intelligent Tarref Allah, formerly known as Rashaad Marria, brought this suit against defendant Glenn S. Goord, Dr. Raymond Broaddus, G. Blaetz, and Warith Deen Umar (both in their individual capacities and in their official capacities as decisionmakers at the New York State Department of Correctional Services (“DOCS”)), alleging that defendants had violated the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) and other laws by refusing to accommodate his religious beliefs as a member of the Nation of Gods and Earths (“Nation”), also known as the Five Percenters. On July 31, 2003, we issued an opinion holding that the Nation was a religion whose sincere adherents were entitled to accommodations under RLUIPA (consistent with legitimate security concerns), granting plaintiff certain of the accommodations he sought, and remanding the remainder of his claims to defendants to reevaluate their policies in light of our holding. Marria v. Broaddus, No. 97-8297, 2003 WL 21782633.1 Consistent with our directive, DOCS engaged

in a reevaluation process and produced a set of proposed protocols which DOCS has furnished to plaintiff and the Court. See Appendix. Now pending is defendants’ application for an order adopting these protocols. For the reasons set forth below, defendants’ application is granted.
DISCUSSION
In our July 31, 2003 opinion, we held that plaintiff was entitled to receive and possess the group’s central text, the 120 Degrees, along with copies of two numerology devices, the Supreme Alphabet and the Supreme Mathematics. We remanded to DOC’s for reevaluation plaintiff’s remaining requests for other materials and symbols, gatherings, and fasts.2
Defendants have submitted protocols that provide for access to the 120 Degrees and the Supreme Alphabet and Mathematics, as well as to the Five Percenter newspaper.3 The Protocols also provide guidelines for handling any other material identified by the Nation as having religious significance. They provide that DOCS will consider accommodations for religious fast days identified by the Nation. Finally, they allow for one-on-one meetings between inmates and outside volunteers affiliated with the Nation.
Plaintiff has agreed that these policies are consistent with our rulings and otherwise unobjectionable, except in one respect: they do not allow meetings, classes or congregate services for inmates. Defendants argue that allowing Nation members to congregate would pose an unmanageable security risk, and therefore that their prohibition of congregation satisfies the test under RLUIPA, i.e., is the “least restrictive means” of furthering “compelling state interest[s].”4 Plaintiff responds that allowing meetings would not pose a risk sufficient to justify such a restriction of his religious practice.
As we acknowledged in our earlier opinion, defendants did produce some evidence that “prison inmates identified as ‘Five Percenters’ have been associated with instances of violence and disruption” and that the term “Five Percenters” “may somewhat uniquely connote both a religion and a gang in the New York State prison system.” Marria, 2003 WL 21782633 at *18. While we directed defendants to provide access to Nation literature because defendants failed to show that such access would give rise to significant security concerns, we recognized that plaintiff’s other requests, such as the request to congregate, might pose more serious problems, and therefore remanded the case to defendants for further consideration of its policies with respect to these requests.
1

Marria v. Broaddus, Not Reported in F.Supp.2d (2004)
*2 The supplementary record that defendants have since submitted to support their proposed protocols satisfies us that allowing plaintiff and other members to congregate would, in fact, pose serious security problems.5 Deputy Commissioner for Correctional Facilities Lucien LeClaire has attested that group meetings would raise the risk of immediate group violence, Dec. ¶ 18, development of hierarchies that might undermine the authority of prison staff and might lead to violent competition, Dec. ¶ 19, and criminal conspiracies, Dec. ¶ 21. Mr. LeClaire has provided further support for defendants’ claim that the Nation has been associated with violence in the New York prison system by identifying specific large-scale disturbances in the past two decades in which Nation members were involved.6
Defendants’ other declarant, Deputy Commissioner and Counsel for DOCS Anthony J. Annucci, has provided evidence of the fiscal hardship that would be posed by the requested meetings. Specifically, because of a state budget crisis, defendants are presently operating under a hiring freeze, with strict orders to minimize overtime expenditures. Although it is unclear what role, if any, financial hardship should play in comprising a “compelling state interest” under RLUIPA, defendants’ financial situation is part of the reality of whether defendants could effectively manage the security challenge of Nation meetings.
We find, therefore, that the evidence supports defendants’ determination that the law does not require them to allow Nation congregation. In reaching this conclusion, we find it significant that the protocols do provide for one-on-one meetings with outside volunteers.
CONCLUSION
Based on the foregoing, defendants’ application for an order adopting DOCS’s proposed protocols is granted. All issues now having been resolved, the Clerk of the Court is respectfully requested to close this case on the Court’s docket.
IT IS SO ORDERED.
APPENDIX
PROTOCOLS FOR SINCERE ADHERENTS OF NATION OF GODS AND EARTHS RELIGIOUS
PRACTICES

The following protocols, which have been accepted by the appropriate federal court, shall be in effect as provided herein:
1) Any inmate who professes to be a sincere religious adherent of the Nation of Gods and Earths and who wishes to be afforded the accommodations provided herein shall submit his or her name and department identification number (DIN) to the facility deputy superintendent for programs or functional equivalent.
2) DOCS will allow any inmate who professes to be a sincere adherent of the Nation of Gods and Earths to possess the 120 degrees for personal study, provided however, that such inmate will not be permitted to display the 120 degrees nor to remove from the 120 degrees the Universal Flag, or any other Nation of Gods and Earths symbol or emblem, for any separate display, copying or other use. Furthermore, if any such materials are sent to an inmate who has not submitted his or her name as a sincere adherent to the deputy superintendent for programs, then such materials will be returned by the facility to the sender.
*3 3) DOCS will allow any inmate who professes to be a sincere adherent of the Nation of Gods and Earths to possess the Supreme Alphabet and Mathematics for personal study, provided however, that such inmate will not be permitted to display the Supreme Alphabet nor to remove from the Supreme Alphabet and Mathematics the Universal Flag, or any other Nation of Gods and Earths symbol or emblem for any separate display, copying or other use. Furthermore, if any such materials are sent to an inmate who has not submitted his or her name as a sincere adherent to the deputy superintendent for programs, then such materials will be returned by the facility to the sender.
4) DOCS will arrange for the Five Percenter newspaper to be maintained within the law library at each correctional facility law library through a facility subscription, provided however, that the newspaper shall first have been reviewed and processed in accordance with the media review guidelines as set forth in 7 N.Y.C.R.R. Part 712 and Directive # 4572. To ensure uniformity, all media review determinations will be conducted by a Central Office Media Review Committee. If any redactions are required, the Central Office Committee will send the appropriate notice to all facilities and to the editor of the Five Percenter Newspaper. A copy of any such notice shall thereafter be posted in each facility’s law library and general library.
5) DOCS will apply the above-referenced media review guidelines to any other documents or literature which are identified by an outside Nation of Gods and Earths organization as having religious significance for sincere adherents, provided that such outside organization is
2

Marria v. Broaddus, Not Reported in F.Supp.2d (2004)

identified by the Office of Ministerial and Family Services in accordance with Directive # 4202 and provided further that the Universal Flag, or any other Nation of Gods and Earths symbol or emblem may not be removed from such documents or literature for any separate display, copying or other use. Furthermore, if any such materials are sent to an inmate who has not submitted his or her name as a sincere adherent to the deputy superintendent for programs, then such materials will be returned by the facility to the sender.
6) DOCS will consider a request from an approved outside organization of the Nation of Gods and Earths in connection with the identification of days to be observed as religious fast days for sincere adherents within the confines of their individual housing locations.

7) DOCS will allow an inmate who professes to be a sincere adherent of the Nation of Gods and Earths to meet one-on-one in the facility legal visiting room during normal visiting hours with an outside volunteer affiliated with the Nation of Gods and Earths, who has been identified and designated as a volunteer by the Office of Ministerial and Family Services in accordance with Directive # 4202.
8) DOCS will ensure that each facility posts and maintains a copy of this document in the law library and general library.
	  

Footnotes

1

That opinion contains a fuller account of the Nation’s beliefs and practices.

2

We note that DOCS had not, as an administrative matter, previously performed the balancing required by RLUIPA as, pursuant to

its non-recognition policy, it had treated the Nation as a gang and not a religion.

3

Specifically, inmates who identify themselves to DOCS may possess the 120 Degrees and the Supreme Alphabet and Mathematics,

provided they do not display them or any symbols taken from them or transfer them to inmates who have not so identified

themselves. Moreover, the newspaper will be available in prison law libraries, subject to standard media review.

4

See 42 U.S.C. § 2000cc-1(a) (“No government shall impose a substantial burden on the religious exercise of a person residing in or

confined to an institution ... unless the government demonstrates that imposition of the burden on that person (1) is in furtherance

of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”)

5

Because we find defendants’ submission persuasive, we do not address the question of which burdens apply at this stage in the

litigation.

6

We also take note that other courts have found the Nation to be a security threat based on the record before them. E.g., Fraise v.

Terhune, 283 F.3d 506 (3d Cir.2002) (quotation omitted) (“[E]vidence links the group with numerous incidents of prison violence.

Indeed, according to the Holvey report, many in the law enforcement community consider the Five Percent Nation to be ‘one of the

greatest threats to the social fabric’ of the prisons.”); Self-Allah v. Annucci, No. 97-607, 1999 WL 299310 (W.D.N.Y. March 25,

1999) (“Defendants have clearly shown that the Five Percenters act as an organized group within the prison system to receive new

members, intimidate members of rival groups, and participate in criminal activity, including extortion, robbery, assaults and drug

trafficking.”).

	  

3

 
 SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

CASREF, CLOSED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:97-cv-08297-NRB

Marria v. Broaddus, et al Assigned to: Judge Naomi Reice Buchwald Demand: $600,000 Cause: 42:1983 Prisoner Civil Rights
Plaintiff Rashaad Marria

Date Filed: 11/10/1997 Jury Demand: Both Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question
represented by Rashaad Marria Shawangunk Correctional Facility (95-A-4315) Box 700 Wallkill, NY 12589-0700 PRO SE
Amy I. Kroe Sullivanm & Cromwell 125 Broad Street, 26th Floor New York, NY 10004 (212) 558-7342 LEAD ATTORNEY
Benjamin J. Lee Office of the Attorney General State of New York 24th Floor New York, NY 10271 (212) 416-8922 LEAD ATTORNEY
Elise Suzanne Zealand Gibson, Dunn & Crutcher LLP (NYC) 200 Park Avenue, 48th Floor New York, NY 10166 212-351-2368 Fax: 212-351-5218 Email: ezealand@gibsondunn.com LEAD ATTORNEY
Laurent Sacharoff Brune & Richard LLP 80 Broad Street, 30th Floor New York, NY 10004

1 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report
V. Defendant Dr. Raymond Broaddus Deputy Commissioner of Programs
Defendant G. Blaetz Chairperson of the Green Haven Correctional Facility Media Review Committee
Defendant Warith Deen Umar Coordinator for Islamic Affairs (D.O.C.S.)
Defendant
2 of 17

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...
212-558-4279 LEAD ATTORNEY
represented by Alan R. Kusinitz Eliot Spitzer Attorney General of the State of N.Y. 120 Broadway 24th Flr. New York, NY 10271 (212) 416-8746 LEAD ATTORNEY
Stephanie Vullo Dennis C. Vacco, Attorney General of the State of New York 120 Broadway, 24th Floor New York, NY 10271 LEAD ATTORNEY
represented by Alan R. Kusinitz (See above for address) LEAD ATTORNEY
Benjamin J. Lee (See above for address) LEAD ATTORNEY
Stephanie Vullo (See above for address) LEAD ATTORNEY
represented by Alan R. Kusinitz (See above for address) LEAD ATTORNEY
Benjamin J. Lee (See above for address) LEAD ATTORNEY
Stephanie Vullo (See above for address) LEAD ATTORNEY
11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

Glenn Goord Acting Commissioner of D.O.C.S.

represented by Alan R. Kusinitz (See above for address) LEAD ATTORNEY
Benjamin J. Lee (See above for address) LEAD ATTORNEY
Stephanie Vullo (See above for address) LEAD ATTORNEY

Date Filed 11/10/1997 11/10/1997 11/10/1997 11/10/1997
11/10/1997
11/10/1997 12/01/1997 12/29/1997 04/06/1998
04/16/1998 09/21/1998

#

Docket Text

1 DECLARATION IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS by Rashaad Marria . (jp) (Entered: 11/18/1997)
2 COMPLAINT filed (jp) (Entered: 11/18/1997)
Magistrate Judge Bernikow is so Designated. (jp) (Entered: 11/18/1997)
3 ORDER OF DISMISSAL Accordingly, the complaint, filed in forma pauperis under 28 U.S.C. 1915(a), is dismissed pursuant to 28 U.S.C. 1915(d). We certify pursuant to 28 U.S.C. 1915(a) that any appeal from this order would not be taken in good faith. SO ORDERED. ( signed by Chief Judge Thomas P. Griesa ) (jp) (Entered: 11/18/1997)
4 JUDGMENT for Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord . Ordered, Adjudged and Decreed: That the complaint be and it is hereby dismissed. 28 U.S.C. 1915 (d). We certify that any appeal from the Court's order would not be taken in good faith. SO ORDERED. ( signed by Chief Judge Thomas P. Griesa ). (jp) (Entered: 11/18/1997)
Case closed (jp) (Entered: 11/18/1997)
5 NOTICE of Change of Address by Rashaad Marria . (pl) (Entered: 12/01/1997)
7 NOTICE OF APPEAL by Rashaad Marria .; from [6-1] order plaintiff's request for an extension of time to appeal is granted . Copies of notice of appeal mailed to Attorney(s) of Record: Sua Sponte, Fees Due. (as) (Entered: 04/15/1998)
6 Filed Memo-Endorsement on memo addressed to Judge Griesa from Stanley Pugliese, Pro Se Writ Clerk, dated 3/26/98, plaintiff's request for an extension of time to appeal is granted ( signed by Chief Judge Thomas P. Griesa ) (kw) (Entered: 04/13/1998)
8 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: [7-1] appeal by Rashaad Marria . (as) (Entered: 04/16/1998)
9 MANDATE OF USCA (certified copy) Re: Dismissed [7-1] appeal by Rashaad Marria. (98-2349) Caroyln Clark Campbell, CLerk, USCA. (as) (Entered: 09/22/1998)

3 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

10/16/1998 10/29/1998
10/29/1998 11/03/1998 12/30/1998
03/26/1999 03/31/1999 03/31/1999 03/31/1999 04/12/1999 04/12/1999 04/21/1999 05/07/1999 05/21/1999

Indexed record on appeal files (98-2349) returned from the U.S.C.A. (dt) (Entered: 10/26/1998)
10 ORDER; we hereby vacate our 11/10/97 Order for the limited purpose expressed in the Second Circuit's September 11th Mandate and reassign this action to a district court judge as provided by the Rules Governing the Division of Business among Judges ; a summons shall be issd. from this Court and served upon the defts according to the provisions of Rule 4 of the F.R.C.P. ; pltff is granted leave to proceed in forma pauperis ; the Pro Se Office is directed to expedite service by forwarding to pltff the necessary materials to have the U.S. Marshal Service serve a copy of this Order, the Summons and the Complt. upon defts in compliance w/ Rule 4 of the F.R.C.P. ; nothing herein shall preclude defts from making any such motion to dismiss the complt. as they may be advised to make ; ( signed by Chief Judge Thomas P. Griesa ); copies mailed; on 10/29/98 forwarded copy of Order to Case Assignment Clerk (ls) Modified on 10/29/1998 (Entered: 10/29/1998)
Case reopened (ls) Modified on 10/29/1998 (Entered: 10/29/1998)
12 Notice of reassignment to Judge Barbara S. Jones Copy of notice and judge's rules mailed to Attorney(s) of record: Rashaad Marria . (bm) (Entered: 01/15/1999)
11 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial/Including Initial Case Management Conference (signed by Judge Barbara S. Jones ) Referred to Magistrate Judge Kevin Nathaniel Fox (lam) (Entered: 01/05/1999)
13 NOTICE of attorney appearance for Rashaad Marria by Laurent Sacharoff. (kw) (Entered: 03/29/1999)
14 Affidavit of service as to Raymond Broaddus by Maryanne Richards, Sec. on 3/30/99. Answer due on 4/19/99 for Raymond Broaddus. (lam) (Entered: 04/07/1999)
15 Affidavit of service as to Warith Deen Umar by Connie Sgarlata, Sec. on 3/30/99. Answer due on 4/19/99 for Warith Deen Umar. (lam) (Entered: 04/07/1999)
16 Affidavit of service as to Glenn Goord by Donald Matusik, Asst. Counsel on 3/30/99. Answer due on 4/19/99 for Glenn Goord. (lam) (Entered: 04/07/1999)
17 RETURN OF SERVICE executed as to G. Blaetz by Sandra Renihan, Principal Clerk on 3/31/99. Answer due on 4/20/99 for G. Blaetz. (lam) (Entered: 04/13/1999)
17 RETURN OF SERVICE executed as to G. Blaetz by mail on 4/1/99. Answer due on 4/21/99 for G. Blaetz. (lam) (Entered: 04/13/1999)
18 Affidavit of service as to Warith Deen Umar by personal service on 4/16/99. Answer due on 5/6/99 for Warith Deen Umar. (kw) (Entered: 04/27/1999)
19 ANSWER to Complaint by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord; by attorney Alan R. Kusinitz. (ri) (Entered: 05/14/1999)
20 ORDER, for a conference, pursuant to Rule 16(b), on 6/9/99 at 11:45 a.m. ( signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed (kw) (Entered: 05/24/1999)

4 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

05/28/1999 06/29/1999 06/29/1999 06/30/1999 06/30/1999
07/29/1999

21 Filed Memo-Endorsement on letter from Laurent A. Sacharoff, atty for pltff dated 5/26/99, reset initial pre-trial conference for 11:45 6/29/99 ; pltff's counsel is to notify opposing counsel of the new date and time ( signed by Magistrate Judge Kevin Nathaniel Fox ) (lam) (Entered: 05/28/1999)
24 Filed Memo-Endorsement on letter addressed to Magistrate Judge Kevin Fox from Laurent A. Sacharoff, dated 6/28/99, counsel, for plaintiff, requests an extension to file the proposed scheduling order until tomorrow morning. Application granted ( signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed. (kw) (Entered: 07/01/1999)
Initial Pretrial Conference held before Magistrate Judge Kevin Nathaniel Fox . (jp) (Entered: 07/06/1999)
22 CONFIDENTIALITY STIPULATION and ORDER; regarding procedures that will govern the handling of confidential documents. ( signed by Judge Barbara S. Jones ). (emil) (Entered: 07/01/1999)
23 SCHEDULING ORDER: Deponents to be taken in Aug. and Sept. subject to the schedules of the officials - i) Plaintiff, ii) Ronald Holvey, iii) Paul Annetts, iv) Smith, director of the crisis intervention unit for DOCS - Sept. 7, v) Richard Roy, vi) Deft Warith Deen Umar, vii) Deft Raymond Broaddus, viii) Deft G. Blaetz, ix) Deft Glenn Goord, x) Any other witnesses who are identified through discovery; On 7/12/99, the pltff shall serve on defts interrogatories and documents requests; 7/19/99, the defts shall serve on the pltff interrogaties and documents requests; On 8/12/99, defts shall answer pltff's interrogatories and produce the requested documents, subject to objections; On 8/19/99, pltff shall answer defts' interrogatories and produce the requested documents, subject to objections; Each party shall supply its adversary any expert reports by 9/30/99; The parties will schedule depositions of the experts within a month of receiving the expert reports, consistent with the schedules of the experts. The pltff's expert will be deposed before the defts'; The parties' experts will be permitted to supplement their reports if necessary by 10/15/99; Telephone conference to be held on 10/13/99 at 11:45 a.m.; Discovery ends 11/30/99; Settlement conference to be held on 12/7/99 at 2:30 p.m.; Pltff will supply his pretrial order materials to defts by 12/10/99; Parties will submit pretrial order, briefs and other materials to Court by 1/14/99; Final pretrial conference to be held on 1/25/00 at 11:00 a.m.; The parties anticipate a five day trial before jury. ( signed by Magistrate Judge Kevin Nathaniel Fox ) ; Copies mailed (emil) (Entered: 07/01/1999)
25 AMENDED SCHEDULING ORDER: depositions as set forth in this document; interrogatories and document production as set forth in this document; each party shall supply its adversary any expert reports by 11/1/99. The parties will schedule depositions of the experts within two weeks of receiving the expert reports, consistent with the schedules of the experts. The plaintiff's expert will be deposed before the defendants'. Telephone conference set for 12/1/99 at 11:45 a.m.; discovery ends 12/15/99; settlement conference set for 1/4/00 at 2:30 p.m. If the defendants move for summary judgment: the defendants must serve their motion and supporting papers on plaintiff by January 28; the plaintiff must serve his opposition on defendants by 2/18/99; the reply by 2/28/99. If the defendant does not move for summary judgment: plaintiff will supply his pre-trial order materials to defendants by 12/23/99; parties will submit pre-trial order, briefs and other

5 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

07/29/1999 07/29/1999 09/24/1999 09/27/1999 09/29/1999
10/04/1999
11/04/1999 11/16/1999

materials to Court by 1/21/00; final pre-trial conference set for 2/1/00 at 11:00 a.m. ( signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed (kw) (Entered: 08/02/1999)
Telephone Conference set for 11:45 a.m. on 12/1/99 before Magistrate Judge Kevin Nathaniel Fox. (kw) (Entered: 08/02/1999)
Settlement Conference set for 2:30 p.m. on 1/4/00 before Magistrate Judge Kevin Nathaniel Fox. (kw) (Entered: 08/02/1999)
USCA appeal fees received $ 105.00 September 23, 1999 on receipt # E 355393. (dt) (Entered: 09/24/1999)
Tele. Status Conference held before Magistrate Judge Kevin Nathaniel Fox (ls) (Entered: 10/12/1999)
26 ORDER that the case management order previously issued by the Court is modified; the parties shall complete all depositions relevant to this action by 12/31/99 ; reset defts' answers to pltff's interrogatories due for 10/29/99 ; reset defts' response to pltff's request for production of documents due for 10/29/99 ; defts shall serve their interrogatories and document request on pltff by 10/29/99 ; pltff shall answer defts' interrogatories and respond to defts' document requests by 11/12/99; expert reports shall be provided by each party to the adversary party by 1/5/00 ; expert depositions shall be conducted by the parties by 1/19/00 ; reset telephone status conference for 1:15 1/24/00 ; reset all discovery due for 2/10/00 ; reset settlement conference for 2:30 3/1/00 ; defts shall serve any motion for summary jugment by 3/13/00; pltff shall serve any response to the motion by 3/27/00; and defts shall serve any reply papers by 4/3/00 ( signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed by Chambers. (lam) (Entered: 09/30/1999)
27 AMENDED ORDER, by 12/31/99 the parties shall complete all depositions relevant to this action ; by 10/29/99 defendants shall answer plaintiff's interrogatories and shall respond to plaintiff's request for the production of documents ; by 10/29/99 defendants shall serve their interrogatories and document requests on plaintiff ; by 11/12/99 plaintiff shall answer defendants' interrogatories and shall respond to defendants' documents requests; by 1/5/00 expert reports shall be provided by each party to the adversary party; by 1/19/00 expert depositions shall be conducted by the parties ; a telephonic status conference shall be held on 1/24/00 at 1:15 p.m. counsel to the plaintiff shall initiate the conference; all discovery shall be initiated so as to be completed by 2/10/00 ; set settlement conference for 2:30 p.m. on 3/1/00 ; by 3/13/00 defendants shall serve any motion for summary judgment; by 3/27/00 plaintiff shall serve any response to the motion; and by 4/3/00 defendants shall serve any reply papers ( signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed. (kw) (Entered: 10/06/1999)
28 Notice of attorney appearance for Rashaad Marria by Amy I. Kroe. (kg) (Entered: 11/05/1999)
29 Notice of reassignment to Judge Naomi R. Buchwald Copy of notice and judge's rules mailed to Attorney(s) of record: Amy I. Kroe, Laurent Sacharoff, Rashaad Marria . (bm) (Entered: 11/23/1999)

6 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

12/02/1999 12/06/1999
12/20/1999
01/25/2000 01/25/2000 02/16/2000
02/18/2000 04/20/2000 06/05/2000

Telephone Conference held before Magistrate Judge Kevin Nathaniel Fox. (pl) (Entered: 01/10/2000)
30 ORDER, an Assistant Atty Genl may take the deposition of plntf Marria before a notary public, or some other officer authorized to administer oaths by the laws ofthe US or of the State of NY, at any correctional facility operated and controlled by the NYS Dept of Correctional Services, upon 14 day notice to plntf's attorneys and the superintendent of the correctional facility, and, upon three day notice to plntf ( signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed. (cd) (Entered: 12/07/1999)
31 STIPULATION and ORDER; that the Complt. is deemed to be amended and supplemented to allege that the pltff is being denied access to the Five Percenter newspaper at Shawangunk Correctional Facility and would be denied access to the Five Percenter newspaper at any other correctional facility operated and controlled by DOCS; that the Complt. is deemed to be amended and supplemented to allege that the denial of access to the Five Percenter newspaper violates pltff's federal constitutional rights ; that this stipulation and order has no effect on any other material allegation contained in the Complt. ; that the Answer is deemed to be amended and supplemented to admit that the pltff is being denied access to the Five Percenter newspaper at Shawangunk Correctional Facility and would be denied access to the Five Percenter newspaper at any other correctional facility operated and controlled by DOCS; that the Answer is deemed to be amended and supplemented to deny that the defts have violated the pltff's federal constitutional rights ; that this Stipulation and Order has no effect on any other response contained in the Answer ; ( signed by Magistrate Judge Kevin Nathaniel Fox ) (ls) (Entered: 12/21/1999)
32 ORDER; reset settlement conference for 2:30 3/9/00 at 40 Centre Street, Courtroom 519 . ( signed by Magistrate Judge Kevin Nathaniel Fox ); Copies mailed. (pl) (Entered: 01/26/2000)
Status Conference held before Magistrate Judge Kevin Nathaniel Fox. (pl) (Entered: 02/08/2000)
33 Memo-Endorsement on letter addressed to Judge Buchwald from Amy I. Kroe, dated 2/14/00, re: granting the plaintiff's request for an extension on the following documents: expert reports due on 3/10/00; expert depositions to be completed by 3/20/00 ; reset settlement conference with Mag. Judge Fox on 3/20/00; Final extensions. A report to the Court on the conference before Judge Fox must precede any motions . ( signed by Judge R. Buchwald ); Copies mailed. (pl) Modified on 02/18/2000 (Entered: 02/17/2000)
34 Amended STIPULATION and ORDER of Confidentiality; regarding procedures that will govern the handling of all "documents" provided by any party or non-party in connection with this action ; (signed by Magistrate Judge Kevin Nathaniel Fox) (djc) (Entered: 02/22/2000)
Telephone Conference held before Judge Naomi R. Buchwald . (djc) (Entered: 04/26/2000)
35 Memo-Endorsement on letter addressed to Judge Buchwald from Stephanie Vullo, dated 6/2/00; granting defts' request for an extension of the twenty-five

7 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

09/06/2000 09/06/2000 09/06/2000 09/06/2000 09/06/2000 09/06/2000 09/06/2000 09/06/2000

page limit to no more than thirty-five pages for defts' combined motion for summary jdgmt. and to disqualify pltff's expert ; ( signed by Judge Naomi R. Buchwald ); Copies mailed. (lf) Modified on 06/07/2000 (Entered: 06/06/2000)
36 (REDACTED) NOTICE OF MOTION (Filed on Service Date) by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts ; and for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report ; Return date not indicated. Rule 56.1 Statement in support attached. (sac) (Entered: 10/02/2000)
37 (REDACTED) MEMORANDUM OF LAW by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support of [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
38 (REDACTED) DECLARATION of Stephanie Vullo by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
39 (REDACTED) DECLARATION of Virginia A. Blaetz by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
40 (REDACTED) DECLARATION of Imam Warith Deen Umar by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
41 (REDACTED) DECLARATION of Dr. Raymond Broaddus by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
42 (REDACTED) DECLARATION of Keith Dubray by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
43 (REDACTED) DECLARATION of Dale Artus by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of

8 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

09/06/2000 09/06/2000 09/06/2000 09/06/2000 10/04/2000
10/10/2000
10/18/2000 10/25/2000

Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
44 (REDACTED) DECLARATION of Randy Zimpfer by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
45 (REDACTED) DECLARATION by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
46 (REDACTED) DECLARATION by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
47 (REDACTED) DECLARATION by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support Re: [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report. (sac) (Entered: 10/02/2000)
48 Memo-Endorsement on letter addressed to Judge Buchwald from Amy I. Berman, dated 10/3/00; granting for pltff's request for the following: a 10-page extension of the 25 page limit to respond to defts motion for summary judgment and to exclude pltff's testimony and report ; pltffs' response to motion reset to 10/9/00 for [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, reset to 10/9/00 for [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report ; ( signed by Judge Naomi R. Buchwald ); Copies mailed. (lf) Modified on 10/06/2000 (Entered: 10/05/2000)
49 STIPULATION and ORDER, withdrawing [36-1] motion for an order, purs. to Rule 56 of the FRCP, granting summary judgment in favor of defts, and withdrawing [36-2] motion for an order, purs. to Rules 702 and 703 of the Federal Rules of Evidence, excluding witness testimony and report; defendants also withdraw the request that the original motions for summary judgment and exclusion of plaintiff's expert testimony be filed under seal ; plaintiff will request a pre-motion conference to move to amend the complaint. Defendants will be permitted to move for summary judgment after the motion to amend the complaint is decided . ( signed by Judge Naomi R. Buchwald ) (kw) (Entered: 10/11/2000)
Motion papers withdrawn from Clerk's Office - documents #36-47 on 10/18/00 by Stephanie Vullo, Asst. Atty. General - Bryon Lee AAG (rag) (Entered: 10/18/2000)
50 Memo-Endorsement on letter addressed to Judge Buchwald from Amy I. Berman, dated 10/23/00. Set plaintiff amended complaint due for 11/3/00 ; defendants to serve and file an answer by 11/24/00 . ( signed by Judge Naomi R. Buchwald );

9 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

10/25/2000
11/03/2000 11/03/2000 11/17/2000 11/20/2000
11/27/2000 11/30/2000 02/14/2001
03/13/2001 03/21/2001

Copies mailed. (kw) (Entered: 10/26/2000)
51 ORDER; an assistant attorney general may take the deposition of pltff, before a notary public, or some other officer authorized to administer oaths by the laws of the U.S. or of the State of NY, at any correctional facility operated and controlled by the NYS Dept. of Correctional Services, upon 14 days notice to pltff's attorneys and the superintendent of the correctional facility, and upon 3 day notice to pltff . ( signed by Judge Naomi R. Buchwald ); Copies mailed. (sn) (Entered: 10/27/2000)
52 AMENDED COMPLAINT by Rashaad Marria (Answer due 11/16/00 for Glenn Goord, for Warith Deen Umar, for G. Blaetz, for Raymond Broaddus ) amending [2-1] complaint ; Summons issued. (jp) (Entered: 11/06/2000)
53 NOTICE of attorney appearance for Rashaad Marria by Elise S. Zealand. (jp) (Entered: 11/06/2000)
54 ANSWER to Amended Complaint by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord (Attorney Stephanie Vullo from the Firm: Attorney General NYS). (cd) (Entered: 11/20/2000)
55 Memo-Endorsement on letter addressed to Judge Buchwald from Elise S. Zealand, dated 11/17/00. Re: approving the following proposed schedule with respect to defts' motion for summary jdgmt.: defts to serve their motion - 2/16/01 ; pltff to respond to the motion - 3/9/01; defts to reply to pltff's response - 3/21/01 ; ( signed by Judge Naomi R. Buchwald ); Copies mailed. (lf) (Entered: 11/21/2000)
Pretrial Conference held before Judge Naomi R. Buchwald . (jp) (Entered: 11/30/2000)
56 ANSWER to Amended Complaint by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord (Attorney Stephanie Vullo from the Firm: Attorney General NYS). (cd) (Entered: 12/01/2000)
57 Memo-Endorsement on letter addressed to Judge Buchwald from Stephanie Vullo, dated 2/12/01; granting counsel for defts' request to amend the briefing schedule for defts' motion for summary judgment and to exclude pltff's expert, and for pltff's cross motion to exclude defts' expert: Service of motion on 3/16/01; service of opposition papers and cross motion on 4/16/01; and service of reply papers on 5/4/01 . ( signed by Judge Naomi R. Buchwald ); Copies mailed. (sn) (Entered: 02/15/2001)
58 Memo-Endorsement on letter addressed to Judge Buchwald from Benjamin J. Lee, dated 03/12/01; defendants shall serve motion for summary judgment and to exclude plaintiff's expert on March 21, 2001 ; plaintiff shall reply and cross move on 04/23/01; and defendants shall reply on 05/04/01 ; (signed by Judge Naomi R. Buchwald ); Copies mailed. (djc) (Entered: 03/14/2001)
69 NOTICE OF MOTION (FILED ON SERVICE DATE) by Raymond Broaddus, G. Blaetz, Warith Deen Umar, and Glenn Goord, for an order granting summary judgment pursuant to Rule 56 of the FRCP ; for an order pursuant to Rules 702 and 703 of the Federal Rules of Evidence . No return date. Rule 56.1 statement is attached. (kw) (Entered: 06/08/2001)

10 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

04/18/2001
04/20/2001
04/23/2001 05/01/2001
05/03/2001 05/08/2001 05/08/2001 05/21/2001
05/23/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001

59 Memo-Endorsement on letter addressed to Judge Buchwald from Elise S. Zealand, dated 04/17/01. Plaintiff shall respond to defendant's motion for summary judgment by 04/30/01 ; plainitff shall cross move to exclude defendants' expert by 04/30/01 ; Defendant's reply to plaintiff's brief and response to plaintiff's cross-motion due by 05/14/01 ; ( signed by Judge Naomi R. Buchwald ); Copies mailed. (djc) (Entered: 04/18/2001)
61 ORDER; that the documents as set forth & listed in this order are to be submitted in support of defts' motion for summary judgment and motion to exclude pltff's expert testimony and report are filed with the Clerkof the Court unter seal. ( signed by Judge Naomi R. Buchwald ); Copies mailed. (sac) Modified on 04/25/2001 (Entered: 04/24/2001)
60 SEALED DOCUMENT placed in vault. (dn) (Entered: 04/23/2001)
62 Memo-Endorsement on letter addressed to Judge Buchwald from Stephanie Vullo, dated 4/30/01. Re: defendants request until 6/1/01 to file reply for their motion for summary judgment. While under the circumstances, this request is reasonable, all parties should be aware that this is the final extension that will be granted . ( signed by Judge Naomi R. Buchwald ); Copies mailed. (kw) (Entered: 05/02/2001)
65 Document placed under seal. (pl) Modified on 05/14/2001 (Entered: 05/10/2001)
63 SEALED DOCUMENT placed in vault. (rp) (Entered: 05/08/2001)
64 SEALED DOCUMENT placed in vault. (rp) (Entered: 05/08/2001)
66 ORDER to File Plaintiff's Opposition to Defendants' Motion for Summary Judgment and to Exclude Defendants' Expert Testimony and Report under Seal; the documents submitted in support of plaintiff's opposition to defendants' motion for summary judgment and motion to exclude defendants' expert testimony and report are to be filed with the Clerk of the Court under seal ; a fully redacted copy of plaintiff's opposition to defendants' motion shall be publicly filed ; ( signed by Judge Naomi R. Buchwald ); Copies mailed. (djc) Modified on 05/22/2001 (Entered: 05/21/2001)
67 SEALED DOCUMENT placed in vault. (wv) (Entered: 05/23/2001)
70 DECLARATION of by Glenn Goord in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
71 DECLARATION on behalf of defendants in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
72 DECLARATION on behalf of defendants in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
73 DECLARATION of Keith Dubray by defendants in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)

11 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/05/2001 06/06/2001
06/07/2001 06/11/2001 06/19/2001
06/19/2001

74 DECLARATION of Raymond Broaddus in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
75 DECLARATION of Warith Deen Umar in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
76 DECLARATION on behalf of defendants in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
77 DECLARATION on behalf of defendants in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
78 DECLARATION of G. Blaetz in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
79 DECLARATION of Zimpfer by defendants in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
80 DECLARATION of Vullo by defendants in support Re: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
81 MEMORANDUM OF LAW by Raymond Broaddus, G. Blaetz, Warith Deen Umar, and Glenn Goord in support of [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP. (kw) (Entered: 06/08/2001)
68 ORDER; the following documents submitted in support of defts' motion for summary judgment and motion to exclude pltff's expert testimony and report are to be filed with the Clerk of the Court under seal: 1) Reply Memorandum of Law in support of motion; and 2) Artus Reply Declaration dated 5/29/01. A fully redacted copy of defts' motion shall be publicly filed. ( signed by Judge Naomi R. Buchwald ); Copies mailed. (sac) (Entered: 06/07/2001)
82 Memo-Endorsement on letter addressed to Judge Buchwald from Elise Zealand, dated 6/6/01; granting counsel for the plaintiff's request to file a ten page reply/sur-reply brief on 6/29/01 . ( signed by Judge Naomi R. Buchwald ); Copies mailed. (kkc) (Entered: 06/08/2001)
83 SEALED DOCUMENT placed in vault. (rp) (Entered: 06/11/2001)
84 REDACTED REPLY MEMORANDUM OF LAW by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in support of: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP, [69-2] motion for an order pursuant to Rules 702 and 703 of the Federal Rules of Evidence. (kkc) (Entered: 06/22/2001)
85 REDACTED DECLARATION of Dale A. Artus by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord in further support of: [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP, [69-2]

12 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

07/03/2001
07/05/2001 07/05/2001 07/05/2001 07/05/2001 07/05/2001 07/05/2001 10/26/2001 11/15/2001
11/20/2001 11/27/2001
12/04/2001 03/27/2002
04/05/2002

motion for an order pursuant to Rules 702 and 703 of the Federal Rules of Evidence. (kkc) (Entered: 06/22/2001)
87 ORDER, to file plaintiff's reply memorandum in support of plaintiff's motion to exclude defendant's expert testimony and sur-reply in opposition to defendants' motion for summary judgment and to exclude plaintiff's expert testimony under seal . ( signed by Judge Naomi R. Buchwald ); Copies mailed. (ae) (Entered: 07/05/2001)
86 SEALED DOCUMENT placed in vault. (rp) (Entered: 07/05/2001)
88 REPLY MEMORANDUM by Rashaad Marria re: plntf's motion to exclude defts' expert testimony (cd) (Entered: 07/06/2001)
89 Reply affidavit of Rashaad Marria by Rashaad Marria in support of plntf's oppositon to defts' motion for summary judgment (cd) (Entered: 07/06/2001)
90 DECLARATION of Cee Barnes by Rashaad Marria in support Re: plntf's opposition to defts' motion for summary judgment (cd) (Entered: 07/06/2001)
91 DECLARATION of Rahiem Buford by Rashaad Marria in support Re: ban on the Nation of Gods and Earths' lieterature, newspapers (cd) (Entered: 07/06/2001)
92 DECLARATION of Gabriel Clausen by Rashaad Marria in support Re: plntf's opposition to defts' motion for summary judgment (cd) (Entered: 07/06/2001)
Oral argument held before Judge Naomi R. Buchwald. (kw) (Entered: 11/01/2001)
93 ORDER, defts' Letter submission in support of motion for summary judgment and to exclude pltff's expert testimony and report is to be filed with the Clerk of the Court under seal. A fully redacted copy of defts' letter shall be publicy filed . ( signed by Magistrate Judge Naomi R. Buchwald ); Copies mailed. (kg) (Entered: 11/16/2001)
94 SEALED DOCUMENT placed in vault. (wv) (Entered: 11/20/2001)
95 Letter filed by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord addressed to Judge Buchwald from Benjamin Lee, dated 11/7/01; counsel writes to request that defendants' summary judgment motion be granted. (kkc) (Entered: 11/30/2001)
96 Transcript of record of proceedings before Judge Naomi R. Buchwald for the date(s) of 10/26/01. (moc) (Entered: 12/04/2001)
97 ORDER, defts' motion to exclude the Bair Report is denied and plntf's moiton to exclude the Camp Report is granted ; granting in part, denying in part [69-1] motion for an order granting summary judgment pursuant to Rule 56 of the FRCP (denied as to plntf's First Amendment and RLUIPA claims and granted o to dismiss plntf's due process claim on qualified immunity grounds); a conference has beens sceduled to discuss further proceedings on 4/18/02, at 4:00 pm ( signed by Judge Naomi R. Buchwald ); Copies mailed. (cd) (Entered: 04/01/2002)
98 NOTICE of attorney appearance for Rashaad Marria, Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord by Benjamin J. Lee. (cd) (Entered:

13 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

04/18/2002 09/30/2002 10/28/2002 10/28/2002 10/29/2002 10/30/2002 10/31/2002 11/01/2002 11/14/2002
11/22/2002
12/05/2002 12/06/2002 01/03/2003
07/31/2003
09/23/2003

04/08/2002)
PRETRIAL CONFERENCE held before Judge Naomi R. Buchwald . (cd) (Entered: 04/26/2002)
PRETRIAL CONFERENCE held on 9/30/02 before Judge Naomi R. Buchwald . (sb) (Entered: 10/07/2002)
Bench trial begun on 10/28/02 before Judge Naomi R. Buchwald . (sb) (Entered: 11/18/2002)
CASE NO LONGER REFERRED to Magistrate Judge Kevin Nathaniel Fox. (rag, ) (Entered: 03/29/2004)
Bench trial continued on 10/29/02 before Judge Naomi R. Buchwald . (sb) (Entered: 11/18/2002)
Bench trial continued on 10/30/02 before Judge Naomi R. Buchwald . (sb) (Entered: 11/18/2002)
Bench trial held on 10/31/02 before Judge Naomi R. Buchwald . (sb) (Entered: 11/18/2002)
Bench trial concluded on 11/1/02 before Judge Naomi R. Buchwald . (sb) (Entered: 11/18/2002)
99 Memorandum to Docket Clerk: Trial begun on 10/28/02 before Judge Buchwald. Trial continued on 10/29/02, 10/30/02, and 10/31/02. Trial concluded on 11/1/02. Decision reserved. (sb) (Entered: 11/18/2002)
100 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Rashaad Marria. Received in night deposit box on 11/22/02 at7:18 p.m. (yv) (Entered: 12/02/2002)
101 Transcript of record of proceedings before Judge Naomi R. Buchwald for the date(s) of 10/28,29,30,31/02. (dt) (Entered: 12/06/2002)
102 Transcript of record of proceedings before Judge Naomi R. Buchwald for the date(s) of 11/1,4,5,6,7,8/02. (dt) (Entered: 12/06/2002)
103 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Raymond Broaddus, G. Blaetz, Warith Deen Umar, Glenn Goord . (cd) (Entered: 01/08/2003)
104 OPINION AND ORDER #88835; that the DOCS conform its policies concerning the group know as the Nation of Gods and Earths with this ruling, and further that DOC report the results of that policy reevaluation to the Court in sixty days . ( signed by Judge Naomi R. Buchwald ); (pl) (Entered: 08/04/2003)
105 Memo-Endorsement on letter addressed to Judge Buchwald from Rebecca Ann Durden, dated 9/17/03; granting defts' application for an extension of time to and including 10/29/03 to comply with the Court's 7/31/03 order. However, no further adjournments will be granted. ( signed by Judge Naomi R. Buchwald ); (sac) (Entered: 09/26/2003)

14 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

11/18/2003 03/31/2004
05/10/2004
05/26/2004 05/26/2004 05/27/2004 06/03/2004
06/09/2004 07/30/2004
08/04/2004 08/05/2004 08/17/2004

PRETRIAL CONFERENCE held before Judge Naomi R. Buchwald . (ae) (Entered: 11/21/2003)
106 ENDORSED LETTER addressed to Judge Naomi Reice Buchwald from Benjamin Lee dated 3/31/04 re: The parties submit this joint letter to inform the Court of the status of this case and request permission to make a simultaneous submission by 5/12/04. So Ordered. (Signed by Judge Naomi Reice Buchwald on 3/30/04) (jco, ) (Entered: 04/02/2004)
107 ENDORSED LETTER addressed to Judge Naomi Reice Buchwald from Benjamin Lee dated 5/6/04 re: Counsel for defendants write to request a two week extension of time to 5/26/04 to make further submissions regarding DOCS' proposed protocols. So Ordered. (Signed by Judge Naomi Reice Buchwald on 5/7/04) (jco, ) (Entered: 05/11/2004)
109 MEMORANDUM OF LAW in Support of their application for an Order adopting defendants' proposed protocols. Document filed by G. Blaetz, Raymond Broaddus, Glenn Goord, Warith Deen Umar. (jco, ) (Entered: 06/01/2004)
110 DECLARATION of Lucien Leclaire in Support of defendants' application for an order adopting doc's proposed protocols. Document filed by G. Blaetz, Raymond Broaddus, Glenn Goord, Warith Deen Umar. (jco, ) (Entered: 06/01/2004)
108 ENDORSED LETTER addressed to Judge Buchwald from Damore Viola dated 5/26/04 re: granting counsel's request for an extension of time until June 1st to make a further submission regarding DOCS's proposed prootocols. (Signed by Judge Naomi Reice Buchwald on 5/26/04) (djc, ) (Entered: 05/28/2004)
111 Letter addressed to Judge Naomi Reice Buchwald from Damore Ashon Viola dated 6/1/04 re: this letter sets forth Plaintiff Intelligent Allah's response to the Protocols for Sincere Adherents of Nation of Gods and Earths Religious Practices submitted by the Department of Correctional Services. Document filed by Rashaad Marria.(sac, ) (Entered: 06/07/2004)
Minute Entry for proceedings held before Judge Naomi Reice Buchwald : Telephone Conference held on 6/9/2004. (jco, ) (Entered: 06/15/2004)
112 OPINION AND ORDER; Based on the foregoing (as stated in this Opinion and Order) defendants' application for an order adopting DOC's proposed protocols is granted. All issues now having been resolved, the Clerk of the Court is respectfully requestsed to close this case on the Court's docket. (Signed by Judge Naomi Reice Buchwald on 7/29/04) (djc, ) (Entered: 08/04/2004)
Transmission to Judgments and Orders Clerk. Transmitted re: [112] Order,, to the Judgments and Orders Clerk for preparation of Judgment. (djc, ) (Entered: 08/04/2004)
113 CLERK'S JUDGMENT granting defendants' application for an order adopting DOC's proposed protocols. (Signed by J. Michael McMahon, clerk on 8/5/04) (ml, ) (Entered: 08/05/2004)
Mailed notice of Right to Appeal to Attorney(s) of Record: Amy I. Kroe, Alan R. Kusinitz, Benjamin J. Lee, Laurent Sacharoff, Stephanie Vullo, Elise S. Zealand. (snu, ) (Entered: 08/17/2004)

15 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

09/22/2004 09/22/2004 10/13/2004 10/13/2004 10/15/2004
10/15/2004 10/15/2004
10/27/2004 11/19/2004 09/09/2005

114 NOTICE OF APPEAL from [113] Clerk's Judgment. Document filed by Rashaad Marria. Copies of Notice of Appeal mailed to Attorney(s) of Record: Attorney General, NYS. (tp, ) (Entered: 10/13/2004)
Appeal Remark as to [114] Notice of Appeal filed by Rashaad Marria. $255.00 APPEAL FEE DUE. Motion for Extension of Time GRANTED on 9/9/04. (tp, ) (Entered: 10/13/2004)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: [114] Notice of Appeal. (tp, ) (Entered: 10/13/2004)
Transmission of Notice of Appeal to the District Judge re: [114] Notice of Appeal. (tp, ) (Entered: 10/13/2004)
115 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for [114] Notice of Appeal filed by Rashaad Marria 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (tp, ) (Entered: 10/15/2004)
Appeal Record Sent to USCA (File). Indexed record on Appeal Files for [114] Notice of Appeal filed by Rashaad Marria were transmitted to the U.S. Court of Appeals. (tp, ) (Entered: 10/15/2004)
116 ENDORSED LETTER addressed to Judge Naomi Reice Buchwald from Intelligent Tarref Allah dated 8/23/04 re: plaintiffs application to extend his time to appeal is extended until 9/30/04. (Signed by Judge Naomi Reice Buchwald on 9/9/04) (db, ) (Entered: 10/20/2004)
117 DECLARATION IN SUPPORT OF REQUEST FOR LEAVE TO APPEAL IN FORMA PAUPERIS. Document filed by Rashaad Marria.(ae, ) (Entered: 11/04/2004)
118 MEMO ENDORSEMENT: [117] Declaration in Support of I.F.P. filed by Rashaad Marria is GRANTED. (Signed by Judge Naomi Reice Buchwald on 11/12/04) (db, ) (Entered: 11/23/2004)
119 MANDATE of USCA (Certified Copy) as to [114] Notice of Appeal filed by Rashaad Marria, USCA Case Number 04-5538-pr. Appellant, pro se, moves for appointment of counsel in his appeal of the district court decision granting the defendants` motion for an order adopting the protocols proposed by the Department of Correctional Services ("DOCS"). Those protocols allowed incarcerated members of the Nation of Gods and Earths ("Nation") to have access to literature related to the group`s religious practices and required DOCS to accommodate the inmates` observation of Nation holidays. Because the district court did not abuse its discretion in accepting the protocols proposed by DOCS, see Dunn v. New York State Dept. of Labor, 47 F.3d 485, 488 (2d Cir. 1995)(holding that this Court reviews a district court`s grant of equitable relief for abuse of discretion), it is hereby ORDERED that the motion is denied and the appeal is dimissed because it lacks an arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); 28 U.S.C. ? 1915 (e). Roseann B. MacKechnie, Clerk USCA. Issued As Mandate: 9/2/2005. (nd, ) (Entered: 09/12/2005)

16 of 17

11/10/2006 1:42 PM

SDNY CM/ECF Version 2.5L - Docket Report

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?550564764600842-L_9...

09/12/2005 11/18/2005

Transmission of USCA Mandate/Order to the District Judge re: [119] USCA Mandate,,,,. (nd, ) (Entered: 09/12/2005)
Appeal Record Returned. Indexed record on Appeal Files for [114] Notice of Appeal filed by Rashaad Marria, USCA Case Number 04-5538-pr, returned from the U.S. Court of Appeals. (nd, ) (Entered: 11/28/2005)

PACER Service Center

Transaction Receipt

11/10/2006 14:41:22

PACER Login:

hs0328

Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 12

Cost:

1:97-cv-08297-NRB 0.96

17 of 17

11/10/2006 1:42 PM