184 F.Supp.2d 326 (2002)

Thomas PUGH, Jr., Errol Ennis, Edward Hamil and Clay Chatin, Plaintiffs,

v.

327

Glen GOORD, Commissioner of the New York State Department of Correctional *327

Services, William Mazzuca, Superintendent of Fishkill Correctional Facility, Ada Perez,

Deputy Superintendent of Programs for Fishkill Correctional Facility, Lewis Goidel,

Grievance Supervisor for Fishkill Correctional Facility, Thomas Eagen, Grievance Director

of the New York State Department of Correctional Services, and Warith Deen Umar,

Administrative Chaplain of the New York State Department of Correctional Services,

Defendants.

No. 00 Civ. 7279(GEL). United States District Court, S.D. New York.
January 3, 2002. Thomas Pugh, Jr., Errol Ennis, Edward Hamil and Clay Chatin, pro se. Leonard A. Cohen, New York City, Assistant Attorney General, for Glen Goord, William Mazzuca, Ada Perez, 328 Lewis Goidel, *328 Thomas Eagen and Warith Deen Umar.

OPINION AND ORDER

LYNCH, District Judge.
Plaintiffs Thomas Pugh, Jr., Errol Ennis, Edward Hamil and Clay Chatin bring this action under 42 U.S.C. § 1983, pro se, alleging that the defendants, several senior administrators in the New York State Department of Correctional Services ("DOCS") and the Fishkill Correctional Facility ("Fishkill"), violated plaintiffs' First and Fourteenth Amendment rights. The matter is before the Court on plaintiff's motion for a preliminary injunction. For the reasons that follow the motion is denied and the case will be dismissed.

Background

Plaintiffs are inmates housed in Fishkill, who practice the Shi`a branch of Islam. Affidavit testimony provided in conjunction with the present motion establishes the following essentially undisputed facts. The principal tenets of Islam, regardless of sect, are (1) belief that Allah is God; (2) acceptance that the Qur'an is the book of guidance and contains the words of Allah; (3) acknowledgment of the Prophet Muhammad as the final messenger and Prophet of Allah; (4) acceptance of the "five pillars" of Islam 0907 Shahada (declaration of faith), Salat (prayer), Zakat (Charity), Saum (fasting) and Hajj (pilgrimage to Mecca); and (5) the practice of Oiblah, or praying facing Mecca. (Cohen Aff. Ex. A ¶ 16.) All Muslims apparently accept these principles, whether they are Sunni, Shi`ite, or belong another of the multiple sects that constitute Islam. (Id.) The principal difference between Sunnis and Shi`ites is the significance which Shi`ites afford the twelve imams, or religious leaders, who came after the Prophet Muhammad. (Cohen Aff. Ex. A at 4, n. 2.) Shi`ites consider these twelve imams to be the legitimate successors to Muhammad and divine in nature, while Sunnis do not. (Id.) According to Pugh, Shi`ites are also forbidden to follow a deceased imam's religious decrees and explanation of religious doctrine, and consequently are only bound by the interpretations of religious doctrine adopted by succeeding Shi`ite religious leaders, or Ayatullahs. (Pugh Aff. ¶ 10 & Ex. B.) Despite their distinct clerical traditions, Shi`a and Sunni religious doctrines remain similar though not identical. (Id.)

DOCS has traditionally accommodated religions with significant inmate followings to the greatest extent possible, and Islam is among these religions. (LoConte Aff. ¶ 3, 4.) The DOCS program for Muslim inmates consists principally of a four-point program which is non-sectarian and focuses on elements common to all sects of Islam: (1) Jum'ah (Friday noon services); (2) Islamic studies classes; (3) Islamic introduction services; and (4) Majlis Shu`urah (consultation and religious planning). (Cohen Aff. ¶ 18.) Additional accommodations include meeting special dietary needs and allowing religious symbols and materials (such as religious publications, prayer rugs and prayer beads). (Id. ¶ 19.) Muslim inmates are allowed to pray five times a day, and to observe three Muslim holidays: Ramadan (the month of fasting), Id-Ul-Fitr (the feast or fast-breaking at the end of Ramadan) and Id-Ul Adha (the feast of sacrifice). (Id. ¶ 19.) During the month of Ramadan, there are arrangements that allow inmates to break their fast after sundown, and during the other recognized holidays, Muslim inmates are allowed to have congregate prayer services, communal festivities and family visits. (Id.) Most DOCS facilities also have Muslim chaplains on staff to provide religious guidance. (Id. ¶ 20.) Inmates may even receive spiritual advice from the 329 outside religious community when a DOCS chaplain cannot fulfil the inmates' spiritual *329 needs, and outside religious leaders can become spiritual advisors as registered volunteers. (Id.; LoConte Aff. ¶ 22.) The DOCS program has been approved of by the Fiqh Council of North America, a nationally recognized board of Muslim scholars and educators, that is recognized as authoritative by all major Muslim organizations in the United States, in which all sects, including Shi`ites, are represented and play leadership roles. (Cohen Aff. Ex. A ¶ 24.)
In addition to these general programs for accommodating religious practices, DOCS has in place provisions for accommodating individualized beliefs of inmates not addressed by the general program of the religious group to which they belong, in a manner consistent with the limitations of the prison setting and resources. (LoConte Aff. ¶ 19). Inmates are allowed to pray and study in their cells, and receive religious publications, so long as the material does not incite violence. (Id. ¶ 20.) Furthermore, DOCS accommodates religious dietary needs, including, for example, permitting Muslim inmates to bring food back to their cells in order to break their cycle of fasting during Ramadan. (Id. ¶ 24.)[1]
Inmates also have access to a grievance procedures for filing both formal and informal complaints against any religious leader who an inmate believes is arbitrarily denying him access to religious privileges. There is both a facility-based grievance board and a central grievance board based in Albany which respond to formal grievances. (Id. ¶ 12 & Ex. A.) Although neither of these boards have the authority to dismiss religious leaders employed by DOCS, they are responsible for working out disputes between inmates and religious leaders, and bringing any problems to the attention of prison officials who have the authority to take further corrective action. ( Id.) Where a particular religious leader has been the subject of multiple complaints, the grievance boards contact prison officials, who investigate the matter and may take disciplinary action where appropriate. (Id. ¶ 13.) In addition, informal complaints may be lodged with coordinating Chaplain at the particular facility, who also may take the appropriate corrective action. (Id. ¶ 15.) Moreover, since adoption of the specific Protocol concerning accommodation of Shi`a adherents, discussed below, it has been specific DOCS policy that Muslim chaplains may be formally disciplined for disparaging Shi`a beliefs. (Id. Ex. D.)
Despite the existence of this program, and the associated grievance procedure, plaintiffs allege that the religious program for Muslims impermissibly infringed upon their ability to practice the Shi`a faith. Specifically, plaintiffs allege that when they approached the responsible officials at Fishkill to accommodate their religious beliefs, they were informed that they could teach and practice their faith in the area used by Sunni Muslims, and were directed to spiritual guidance from Imam Muhammad, the Islamic Coordinator for all Muslim inmates at Fishkill, who is a Sunni Muslim. Plaintiffs' request for separate Ramadan services were similarly rebuffed, and they were again directed to contact Imam Muhammad for the appropriate religious services. They have also alleged that a request 330 by the Islamic Guidance Center of Brooklyn, apparently a Shi`a religious organization, to volunteer their *330 services to the facility were denied, and that their formal grievances concerning these matters have been summarily dismissed. Finally, plaintiffs allege that Imam Muhammad has exhibited an overt hostility to the Shi`a faith, and that hostility has been evidenced not only in derogatory words, but also in Shi`ite inmates' being denied the right to celebrate Eid Ghadir Khum, apparently one of the biggest and most important Shi`a festivities.[2]
The purportedly discriminatory conduct of Imam Muhammad does not appear to have been an isolated incident, and in fact was the basis for a separate litigation in Cancel v. Goord, 278 A.D.2d 321, 717 N.Y.S.2d 610 (2d Dep't

2000), leave to appeal denied, 96 N.Y.2d 778, 725 N.Y.S.2d 633, 749 N.E.2d 203 (2001). That case was brought in New York State court by another Shi`ite inmate at Fishkill who is not a party to the present action, and involved a similar claim to the one presented here, namely that Imam Muhammad routinely proselytized Shi`ite inmates and denigrated Shi`a beliefs, and did not permit the study of or recognize differences between sects of Islam. The petitioner alleged that as a consequence of Imam Muhammad's supervision, the Muslim program at Fishkill, as then administered, was incompatible with and ultimately antagonistic to the Shi`a faith. The Appellate Division affirmed the lower court ruling that the DOCS treatment of Shi`ite inmates was "arbitrary and capricious" and violated the right to free exercise of religion enshrined in New York's Corrections Law § 610. The Court ordered DOCS to conduct administrative proceedings "to determine the manner in which to best afford Shi`ite inmates separate religious services, under appropriate Shi`a religious leadership, in a time and placed that comport with legitimate penological concerns." Cancel, 717 N.Y.S.2d at 612.
In the aftermath of the Cancel case, DOCS consulted with numerous Islamic organizations all over New York State to seek appropriate direction in matters of Islamic doctrine, tradition and ritual. (LoConte Aff. ¶¶ 43-44.) As part of the effort to satisfy the Appellate Division's order, on April 19, 2001, senior DOCS officials met with Shayk Fadhel Al-Sahlani, a religious scholar at the Imam Al-Khoei Foundation, the Shi`ite Islamic Center in Jamaica, Queens, that had served as outside ecclesiastical advisor to the plaintiff in the Cancel litigation. (Id. ¶ 46.) At that meeting they were advised that Shi`ite inmates could worship in the same religious services as Sunni Muslims, but that special care was needed to ensure that Shi`ite inmates were not harassed because of their beliefs. (Id. ¶ 47.) Accordingly, in addition to the existing grievance procedures DOCS put in place a Protocol designed to ensure that the rights of Shi`ite inmates are respected and protected. (Id. ¶ 48-49.) The new Protocol warns DOCS employees, including chaplains, voluntary chaplains and inmate facilitators to refrain from disparaging inmates on account of their religious beliefs, and mandates that Shi`a Muslim inmates have full access to all Muslim religious education classes, equal opportunities to participate in all Friday Jum'ah services, and have at least one member on the Muslim Majlis of any facility in which the Shi`ite inmates are present in the general 331 population. (Id. Ex. D.) Indeed, the Affidavit of John LoConte, DOCS' Director of Ministerial and *331 Family Services, and its supporting exhibits set forth an exceptionally impressive and thorough account of DOCS' religious programs in general and its specific effort to accommodate the religious needs of Shi`ite inmates. The LoConte Affidavit demonstrates that, once alerted to the need to pay particular attention to the distinction between Shi`a and Sunni interpretations of Islam, DOCS undertook a sincere, thoughtful, and effective effort to reconcile the religious needs of the Shi`ite prison population with the security and penological interests of the State.
There is no dispute that neither DOCS nor Fishkill has provided accommodations to Shi`ite inmates in the system, other than those described, and that Shi`ite inmates do not enjoy separate religious services. LoConte has testified that any such procedures would impose a significant administrative burden upon the correctional system. Chief among those burdens are increased security concerns caused by heightened rivalry among prison inmates belonging to different groups with different privileges, and the competition for new members and converts engendered by it. (LoConte Aff. ¶ 29.) LoConte further testified that, while he does not dispute the good faith of Shi`ite inmates, creating separate services for them would increase pressure upon DOCS to recognize other sub-groups that may be used as a subterfuge for gang-related activity. (Id. ¶¶ 38-39.) A proliferation of sects also increases the administrative burdens of supervision, including the need to set aside additional space, increased burdens on prison personnel who must monitor each inmate program, and increased costs. (Id. ¶¶ 28, 30-36.)
Procedural History
Plaintiffs filed this action in or about July 2000, purportedly as a class action on behalf of themselves and other similarly situated inmates. The complaint did not allege specific facts, but contained only conclusory assertions that plaintiffs were "not able to receive any spiritual guidance in accordance with their religious beliefs" and that they were "being discriminated against by the defendants because of their religious beliefs." (Compl. ¶¶ A, D.) On September 27, 2000, Chief Judge Mukasey issued an order directing the Clerk of the Court to assign a docket number to the complaint, but requiring the plaintiffs to amend their complaint to include detailed allegations of the manner in which their religious freedom was burdened and the alternative means of worship provided by prison

authorities that would allow the defendants to mount an intelligent defense. (Cohen Aff. Ex. B at 3.) The Court also stated that the action could not proceed as a class action since pro se plaintiffs cannot act as class representatives. (Id. at 1, n. 1.)
Accordingly, on November 17, 2000, the plaintiffs filed an amended complaint. Plaintiffs seek a total of $500,000 in compensatory damages and injunctive relief requiring the defendants "to provide the Shi`a Muslim inmates at Fishkill Correctional Facility [with] a prayer area to conduct religious classes and services, and to be allow[ed] to receive volunteers, so that they could receive proper spiritual and educational benefit[s] in accordance with their beliefs." (Am. Compl. at 8.)
The parties appeared before this Court on June 7, 2001, for an initial case management conference, with the plaintiffs appearing by telephone. At that time, defendants indicated that plaintiffs' constitutional argument might be mooted by actions taken by the DOCS in response to the recent decision of the Appellate Division of the New York State Supreme Court in Cancel. Defendants stated that, in response to the Cancel case, they had 332 supplemented the existing religious program *332 with additional measures designed to secure the First Amendment rights of Shi`ite inmates. Defendants argued, however, that separate services, which plaintiffs demanded, were not constitutionally mandated. In light of the dispute over the requirement for separate services, this Court directed the parties to proceed to discovery, and scheduled a second conference on October 5, 2001, to check on the progress made.
On August 13, 2001, plaintiffs filed a motion for a preliminary injunction, challenging the adequacy of the accommodations put into place by the DOCS, and seeking an injunction requiring defendants to establish a separate religious program for Shi`ite inmates. This motion is now fully briefed and ripe for resolution.
Discussion
"[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (emphasis in original) (quoting from CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, 11A FEDERAL PRACTICE AND PROCEDURE § 2948 (2d Ed.1995)). A preliminary injunction may only be granted where the plaintiff has shown that (1) that the injunction is necessary to prevent irreparable harm, and (2) there is either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of the claim and a balance of hardships that tips decidedly in favor of the moving party. Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir.1999). There is no serious dispute that plaintiffs have successfully made a showing of irreparable harm.[3] Nevertheless, plaintiffs' request for a preliminary injunction fails because they cannot establish a likelihood of success on the merits. Indeed, a careful examination of the merits of plaintiffs' claims reveals that plaintiffs have not stated a claim on which relief can be granted, and that their complaint accordingly must be dismissed.
"Prison 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). Thus, inmates retain the right to the free exercise of religion protected by the First Amendment. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). 333 However, the constitutional protections afforded to prison inmates are not absolute, and indeed are *333 scrutinized under a standard that is less exacting than that ordinarily applied to constitutional infringements. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). Assessing a free exercise claim by inmates involves determining.
(1) whether the practice asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely held, (2) whether the challenged practice of prison officials infringes upon the religious belief, and (3) whether the challenged practice of the prison officials furthers some legitimate penological interest.
Farid v. Smith, 850 F.2d 917, 926 (2d Cir.1988). Inmates adhering to minority religions are also protected under the Equal Protection Clause of the Fourteenth Amendment, Cruz, 405 U.S. at 321-22, 92 S.Ct. 1079, and whether or not prison regulations violate the Equal Protection Clause similarly depends on whether the regulation

is "reasonably related to legitimate penological interests." Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.1990). Thus, under both the First and Fourteenth Amendments, prison regulations that restrict the exercise of religious beliefs are subject to a "reasonableness" standard, applied in relation to legitimate state penological interests.
This standard gives considerable deference to the judgment of prison officials who are in the best position to make difficult decisions involving prison administration. Turner, 482 U.S. at 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). "Subjecting the day to day judgment of prison officials to an inflexible strict scrutiny analysis would severely hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration." Id. at 89, 107 S.Ct. 2254. Under this standard, a prisoner "is not entitled to insist on a religious advisor whose beliefs are completely congruent with his." Muhammad, 904 F.Supp. at 190. Nor must prison officials provide a place of religious worship for every faith, regardless of size, as long as all prisoners have a reasonable opportunity to exercise their faith. Cruz, 405 U.S. at 322, n. 2, 92 S.Ct. 1079. Rather the distinction between permissible and impermissible restrictions is determined by a balancing test which looks to (1) whether there is a rational relationship between the regulation and the legitimate governmental interest asserted; (2) whether the inmates have alternative means to exercise that right; (3) the impact the accommodation will have on the prison system; and (4) whether ready alternatives exist which accommodate the right and satisfy the governmental interest. Turner, 482 U.S. at 89-90, 107 S.Ct. 2254.
Defendants do not contest that the practices asserted by the plaintiffs are within their scheme of belief or that these beliefs are sincerely held by the plaintiffs. Nor is there any doubt that plaintiffs have alleged limitations on their ability to practice their religious beliefs. Plaintiffs' primary claims of infringements on their religious practice, however, do not make out a supportable claim that the DOCS' Muslim program is unconstitutional on its face. It is undisputed that no ecclesiastical authority or religious text requires separate services for Shi`ites and Sunnis. Nor do the plaintiffs dispute that the four-point program for Muslim inmates is facially non-sectarian, and permits practice of those aspects of Islam that are common to both the Shi`a and Sunni faiths. Prisoners are permitted to pray five times daily, to participate in religious consultation and instruction, to take part in communal Jum'ah services and to possess and use religious symbols such as prayer rugs and prayer beads. In light of these 334 significant accommodations, plaintiffs do not appear to contest that, at least in theory, Shi`ite *334 inmates are afforded a meaningful opportunity to observe those traditions, rituals and beliefs that are required of them by their religious doctrine.[4] Prior cases, moreover, have consistently rejected the claim that the Constitution requires separate religious services or chaplains for different Islamic subgroups. See Matiyn v. Commissioner, 726 F.Supp. 42 (W.D.N.Y. 1989) (Sunni Muslims not entitled to prayer services separate from Shi`a adherents); Muhammad v. City of New York, 904 F.Supp. 161 (S.D.N.Y.1995) (Nation of Islam adherents not entitled to services and chaplain separate from other Islamic sects).
For the most part, then, plaintiffs do not directly attack the religious accommodations governing Muslim inmates, and thus essentially concede that regulations themselves do not infringe upon their First and Fourteenth Amendment rights. Rather, plaintiffs assert that regardless of whether the DOCS Muslim program passes constitutional muster on its face, the program as administered under the Sunni chaplain at Fishkill significantly infringes upon their ability to worship freely.[5] Plaintiffs have alleged that Imam Muhammad has shown overt bigotry against Shi`a Muslims by openly proselytizing and denigrating Shi`ites in front of Sunni inmates. Taking that allegation to be true, as we must at this stage of the litigation, throws the alleged constitutional deprivations in a different light. While the Muslim program in the abstract undoubtedly passes muster, plaintiffs argue (with some force) that the program as administered effectively deprives Shi`ite inmates of their free exercise rights. While the First and Fourteenth Amendments do not require that prison inmates have access to religious advisors whose own views are completely congruent to their own, their protections are certainly not satisfied where the religious leader purportedly responsible for inmates' spiritual guidance overtly despises the deeply held beliefs of inmates under his charge. Indeed, as courts have observed in analogous contexts,
[W]hen the only option available for a prisoner is under the guidance of someone whose beliefs are different from or obnoxious to his, the prisoner has effectively been denied the opportunity for group worship and the result may amount to a substantial burden on the exercise of his religion.
Muhammad, 904 F.Supp. at 191, n. 39 (citation omitted). Accordingly, plaintiffs have successfully stated the 335 second element of their claim. Therefore, the essential dispute in this lawsuit is whether the *335 measures taken

by the defendants to address this problem are "reasonable," or whether further action, including establishing separate services for Shi`a and Sunni inmates, is constitutionally required.
In response to essentially identical allegations in the state court litigation, however, DOCS in August 2001 put into place a Protocol designed to ensure that the rights of Shi`ite inmates are respected and protected. The new Protocol (LoConte Aff. Ex. D) warns DOCS employees, including chaplains, voluntary chaplains and inmate facilitators, to refrain from disparaging inmates on account of their religious beliefs, and mandates that Shi`a Muslim inmates have full access to all Muslim religious education classes, equal opportunities to participate in all Friday Jum'ah services, and at least one member on the Muslim Majlis of any facility in which the Shi`ite inmates are present in the general population. In addition, inmates are accorded access to both formal and informal grievance procedures by which to seek redress. Whether these measures are reasonable turns an application of the Turner factors.
At the outset, it must be noted that to the extent plaintiffs claim that defendants should be required to take action to discipline or control Imam Muhammad, such claims must be dismissed pursuant to 42 U.S.C. § 1997e(a). That statute requires prisoners to exhaust all available administrative remedies before bringing a § 1983 claim with respect to "prison conditions." Complaints regarding deprivations of First Amendment rights pertain to prison conditions and are subject to this exhaustion requirement. See, e.g., Majid v. Wilhelm, 110 F.Supp.2d 251, 256 (S.D.N.Y.2000). Here, plaintiffs have never availed themselves of the grievance procedure for complaints against prison employees with respect to the central allegation in their complaint. Although the complaint in this action states that the plaintiffs filed at least three grievances with prison officials in an attempt to secure separate religious services for Shi`ite inmates, the plaintiffs have never used the grievance procedures available to redress the purported conduct of Imam Muhammad, which is at the heart of the present lawsuit. The new protocol for dealing with Shi`a practice in the prisons specifically provides remedies for such conduct by chaplains as plaintiffs allege (LoConte Aff. Ex. D. Article I), supplementing those available at the time plaintiffs filed this lawsuit. Under the statute, plaintiffs are required to exhaust these administrative remedies, and doing so might well provide them more immediate relief than litigation in this Court.
At any rate, on the merits, plaintiffs cannot establish that the defendants' refusal to establish separate services was unreasonable even given the allegations about Imam Muhammad's actions. Applying the Turner factors, I conclude that the constitution does not require more than is provided by DOCS' Muslim program, as modified by the new Shi`a protocol, and that plaintiffs accordingly cannot succeed on the merits of their claims.
First, defendants have undoubtedly articulated a rational relationship between their refusal to provide separate services to Shi`ite inmates and their interest in limiting the administrative burdens placed on the prison system. Affidavit testimony from prison officials charged with making the appropriate administrative decisions plainly establishes that requiring separate services for every religious subsect would stretch prison resources because of the added space, personnel and money that would be required to provide for additional congregations of prison inmates in a manner consistent with prison security. As the Supreme Court has instructed, federal courts should 336 not second-guess prison officials' *336 considered judgments on matters of prison administration. Turner, 482 U.S. at 84-85, 107 S.Ct. 2254.
Second, as set forth above, the Muslim program provides more than adequate opportunities for plaintiffs to worship in a manner that is both meaningful and consistent with their faith. Any deprivation of free exercise rights alleged by the plaintiffs results solely from the allegedly hostile and bigoted conduct of the Muslim chaplain at Fishkill charged with administering the Muslim program and providing spiritual guidance to all Muslim inmates. The recent Protocol, however, specifically prohibits such conduct, and provides Shi`ite inmates additional ground to avail themselves of the existing grievance procedures established by DOCS to prevent abusive and derogatory conduct on the part of prison chaplains. Significantly, at the hearing on the preliminary injunction, plaintiffs did not allege any recent incidents or renewed violations by Imam Muhammad since the adoption of the Protocol. Thus, plaintiffs are provided substantial means of observing the rituals and traditions required by their faith, ensured access to all religious privileges enjoyed by other Muslim inmates, and provided with a grievance mechanism to remedy any violations by the Muslim chaplain. To the extent that they object to the conduct of Imam Muhammad, their remedy, as already noted, is via the administrative grievance procedure and does not require institution of separate religious services for Shi`ites.

Third, prison officials have documented that multiplying the number of sects or groupings entitled to separate services would have an adverse impact upon security at prison facilities by increasing opportunities for inmates to exchange contraband and carry on gang-related activity under the cloak of religion. This Court's consideration of the prison's legitimate concerns about gang-related activity should in no way be seen as a rejection of the sincerity of the plaintiffs' religious beliefs. Accepting that the plaintiffs are observant and deeply religious Muslims 0907 something this Court has no reason to doubt 0907 to require separate services for Shi`ite inmates would raise problems that threaten the security of both prison inmates and prison staff. This concern is even more compelling in light of the numerous accommodations that DOCS has already made for religious adherents in general, and Muslim inmates in particular. The Protocol, which the record establishes was devised in close consultation with recognized Shi`a religious authorities, does not provide for separate services as a requirement of Shi`a observance.[6] Distaste for the particular chaplain at Fishkill on the part of Shi`ite inmates there does not alter the appropriate balance of concerns regarding the need for separate services.
Fourth, there are no readily available alternatives that would be any more effective in securing their rights and reconciling them with the prison's legitimate interests. The only remedy suggested by the plaintiffs, as mentioned above, would require significant additional commitments of prison resources and would, moreover, raise 337 substantial security concerns 0907 an *337 outcome that the constitution does not require. The absence of ready, and easily implementable, alternatives to the measures already taken by prison officials is persuasive circumstantial evidence that the measures taken here were reasonable. See Turner, 482 U.S. at 90, 107 S.Ct. 2254.
These conclusions compel not only the denial of a preliminary injunction, but dismissal of the plaintiffs' claims. Although this action is presently before the Court on plaintiffs' motion for a preliminary injunction, plaintiffs essentially requested the primary remedy demanded in their complaint 0907 the establishment of separate services for Shi`ite inmates. That motion effectively sought to establish that the Protocol established by the defendants was constitutionally inadequate, and the parties each introduced evidence establishing the practices required of inmates following the Shi`a faith and the practices followed by prison authorities in accommodating those practices. Thus, resolution of the motion has effectively resolved the dispute at hand. Further discovery will not aid in resolution of this matter. Plaintiffs do not dispute that all Islamic sects share certain central religious practices, and that these shared religious practices are accommodated under the DOCS program. Nor do they dispute the measures taken by the defendants to address the alleged conduct of Fishkill's Muslim Chaplain. Defendants have presented affidavit testimony setting forth the administrative and other burdens that would result from a requirement of separate services. The only dispute remaining is a purely legal one concerning whether the measures actually taken by the defendants are constitutionally sufficient. The analysis set for above indicates that they are, and plaintiffs' claims must be dismissed.
Conclusion
For the foregoing reasons, plaintiffs motion for a preliminary injunction is denied and plaintiffs' claims are dismissed in their entirety.
SO ORDERED:
[1] At the hearing on plaintiffs' motion for a preliminary injunction on October 5, 2001, plaintiffs contended that their ability to celebrate Ramadan would be compromised since Sunnis and Shi`ites break their fasting at different times, and the facility only provided one meal time for Muslims observing Ramadan. At that time, LoConte represented that this difference could be accommodated under existing DOCS guidelines.
[2] This holiday apparently commemorates the death of one of the original twelve Imams, and it is not a holiday accommodated by the DOCS Muslim program. (Cohen Aff. ¶¶ 11, 29, 30.) Although congregational services are not provided, inmates may observe the holiday individually, and according to Islamic authority relied upon by the defendants, there is no requirement that the holiday be observed in a communal fashion. (Id. ¶ 30.)

[3] There is some dispute in this Circuit about whether an alleged loss of First Amendment rights is presumed to constitute irreparable harm. See Amandola v. Town of Babylon, 251 F.3d 339, 343 (2d Cir.2001) ("We must perforce acknowledge that this Court has not spoken with a single voice on the issue of whether irreparable harm may be presumed with respect to complaints alleging the abridgement of First Amendment rights.") Defendants assert that assuming such a presumption exists, plaintiffs cannot benefit from it because they have failed to make a prima facie showing that the DOCS Muslim program prohibits observance of a central tenet of their religion. (Def. Mem. at 11. n. 2.) As discussed in further detail below, the crux of the plaintiffs' claims is not that the DOCS program violates the First and Fourteenth Amendment on its face. Rather, plaintiffs argue that the DOCS program, as administered by an openly hostile Sunni chaplain, fails to protect their constitutional rights. Under this theory, to the extent that plaintiffs have properly alleged an infringement of free exercise rights that cannot be regarded as speculative, they have made a satisfactory showing of irreparable harm, regardless of whether the presumption exists and applies here. Cf. Latino Officers Assoc. v. Safir, 170 F.3d 167, 171 (2d Cir.1999) ("[T]his kind of conjectural chill is not sufficient to establish real and imminent irreparable harm.")
[4] The one exception is the absence of any accommodation to permit Shi`ite inmates to participate in congregational services during a holiday of particular importance to Shi`ites, Eid Ghadir Khum. However, the plaintiffs have nowhere alleged that their beliefs require congregate worship on this holiday, and defendants have stated that the plaintiffs are individually free to celebrate that holiday. (Cohen Aff. Ex. A ¶ 30.) Because the plaintiffs have not been prohibited from observing any religious practice mandated by their faith, this purported deprivation does not rise to the level of a First Amendment infringement.
[5] Prison policies that target certain religious beliefs are also unconstitutional. See United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997). Although plaintiffs' original complaint contained conclusory allegations that the defendants intentionally discriminated against them, Chief Judge Mukasey dismissed plaintiffs' claim of intentional discrimination under 28 U.S.C. § 1915(e)(2), but allowed amendment of the complaint to contain specific factual allegations supporting intentional discrimination. (Cohen Aff. Ex. B. at 6.) Plaintiffs' amended complaint contains conclusory allegations of intentional discrimination that are indistinguishable from those in the original complaint, and therefore subject to dismissal for the same reason.
[6] Plaintiff Pugh argues that the decision of Shaykh Al Sahlani, of the Al Khoei Islamic Center, "to sanction the State protocol is incorrect and is against the ruling of the Ayatullahs." (Pugh Aff. ¶¶ 9-10.) It is not for this Court to adjudicate differences of opinion regarding Shi`a doctrine. DOCS has made every appropriate effort to seek counsel from appropriate and recognized Shi`a religious authorities in an effort to determine what is and is not required for Shi`ite inmates to practice their religion. The Constitution does not require prison officials to accommodate particular inmates' views concerning the orthodoxy of those authorities' recommendations.
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 Pugh v. Goord, Not Reported in F.Supp.2d (2002)
2002 WL 31296323 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Thomas PUGH, Jr., Errol Ennis, Edward Hamil and Clay Chatin, Plaintiffs, v.
Glen GOORD, Commissioner of the New York State Department of Correctional Services, William Mazzuca, Superintendent of Fishkill Correctional Facility, Ada Perez, Deputy Superintendent of Programs for Fishkill
Correctional Facility, Lewis Goidel, Grievance Supervisor for Fishkill Correctional Facility, Thomas Eagen, Grievance Director of the New York State Department of Correctional Services, and Warith Deen Umar, Administrative Chaplain of the New York State Department of Correctional
Services, Defendants.
No. 00 Civ. 7279(GEL). | Oct. 10, 2002.
Shi’ite Muslim inmates of state prison brought §1983 First Amendment action challenging prison’s practice of refusing to provide separate religious services for Shi’ite and Sunni Muslim inmates. The District Court, 184 F.Supp.2d 326, Lynch, J., dismissed complaint, finding that state corrections department’s justifications for refusing to provide separate congregate services were reasonable. On inmates’ motion for relief from judgment, the Court held that appeal, rather than motion for relief from judgment, was inmates’ proper remedy, since original ruling was made as a matter of law on assumption that inmates’ religious freedom was infringed by prison’s actions.
Motion denied.
West Headnotes (1)
[1] Federal Civil Procedure Grounds and objections
Appeal, rather than motion for relief from judgment, was proper remedy for Shi’ite Muslim inmates of state prison following federal district court’s dismissal of their §1983 First Amendment action challenging prison’s refusal to provide separate congregate services for Shi’ite and Sunni Muslim inmates; court had decided as a matter of law that state corrections

department’s justifications for refusing to provide separate services were reasonable, on assumption that Shi’ite inmates’ ability to practice their religion was being infringed, and thus inmates’ additional showing regarding infringement did not affect original ruling. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. §1983; Fed.R.Civ.P. 60(b).
Cases that cite this headnote
Attorneys and Law Firms
J. Andrew Kent, New York, NY, for Plaintiffs Thomas Pugh, Jr., Edward Hamil and Clay Chatin.
Leonard A. Cohen, Assistant Attorney General, for Defendants Glen Goord, William Mazzuca, Ada Perez. Lewis Goidel, Thomas Eagen and Warith Deen Umar.
Opinion
OPINION AND ORDER
LYNCH, J.
*1 Plaintiffs Thomas Pugh. Edward Hamil and Clay Chatin,1 New York state prisoners, acting pro se, brought this action pursuant to 42 U.S.C. § 1983 challenging the program of the New York State Department of Correctional Services (“DOCS”) for accommodating the religious needs of Muslim prisoners as violative of the Free Exercise and Equal Protection rights of Shi‘ite inmates. On December 28, 2001, this Court denied plaintiffs’ motion for a preliminary injunction and dismissed their complaint. Pugh v. Goord, 184 F.Supp.2d 326 (S.D.N.Y.2002).2
On March 15, 2002, plaintiffs brought this motion pursuant to Fed.R.Civ.P. 60(b), seeking vacatur of the dismissal of the complaint .3 They argue that the Court’s prior opinion and order should be vacated based on newly discovered evidence, material misrepresentations by defendants, substantive legal errors by the Court in its prior opinion, and, pursuant to the catchall provision of Rule 60(b)(6), in the interests of justice. The motion will be denied.
Plaintiffs vigorously attack the defendants’ factual submissions in response to their complaint, arguing that
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Pugh v. Goord, Not Reported in F.Supp.2d (2002)
“newly-discovered” evidence reveals numerous factual misstatements.4 But plaintiffs’ extensive discussion of Shi‘ite beliefs, DOCS’s practices vis-a-vis other religious groups, and discrimination against Shi‘ite inmates by Sunni Muslim chaplains at various New York state prisons largely misses the point both of the plaintiffs’ original complaint and of the Court’s prior opinion. Whatever relevance these matters might have to the kind of broad-based attack on DOCS’s Muslim program being conducted in the Northern District of New York, the plaintiffs here brought a simpler complaint, seeking very particular relief.
The crux of that complaint was that DOCS violated the Free Exercise and Equal Protection rights of Shi‘ite Muslim inmates by failing to provide separate congregate religious services for them. (Amended Compl. ¶¶ 5A, 5G, 6; 10/5/01 Tr. at 16.5) The Court’s holding that such services are not constitutionally required was primarily based on an analysis of DOCS’s newly-implemented Muslim religious program (which was adopted in response to litigation in New York state court, see Cancel v. Goord, 717 N.Y.S.2d 778 (2d Dep’t 2000)), under the standards of Turner v. Safley, 482 U.S. 78, 84–85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), as applied by the Second Circuit in Farid v. Smith, 850 F.2d 917, 926 (2d Cir.1988).
Plaintiffs’ voluminous factual submission does not dispute that in August 2001, after this litigation was instituted, DOCS did indeed adopt a new Muslim program, as it represented to this Court that it had.6 Nor does plaintiffs’ attack on various aspects of defendants’ factual submissions address any assertion that was essential to the reasoning in the Court’s opinion. Indeed, the only factual statement in the opinion that appears to be challenged is the statement that “[i]t is undisputed that no ecclesiastical authority or religious text requires separate services for Shi‘ites and Sunnis.” 184 F.Supp.2d at 333. Plaintiffs now provide a variety of religious texts indicating that Shi‘ites may not participate in communal prayers led by a non-Shi‘ite (Pls. Mem. at 4–5 and sources cited therein), and point out correctly that plaintiff Pugh had alluded to one of these sources in support of plaintiffs’ preliminary injunction motion (id. at 18).7 But nothing in plaintiffs’ submissions suggests that such attendance at such congregate prayers is required by their faith, or disputes the Court’s conclusion that “Shi‘ite inmates are afforded a meaningful opportunity to observe those traditions, rituals and beliefs that are required of them by their religious doctrine.” 184 F.Supp.2d at 333–34. Moreover, the Court’s ultimate conclusion was that, because the plaintiffs’ claimed that “the program as administered under the Sunni chaplain at Fishkill significantly infringes upon their ability to worship freely,” id. at 334, and because plaintiffs had sufficiently alleged that “the religious leader purportedly responsible for [their] spiritual guidance overtly despises the deeply

held beliefs of inmates under his charge,” id ., “the plaintiffs have successfully stated the second element of their claim” (infringement on their religious beliefs). The Court’s decision thus turned not on whether Shi‘ite doctrine permits Sunni and Shi‘ite Muslims to worship together, but on the reasonableness of the justifications set forth by DOCS for refusing to provide separate opportunities for congregate worship, in the face of a sufficient allegation that the absence of such opportunities infringed plaintiffs’ ability to practice their religion. This question was then analyzed as a matter of law. Id. at 335–37. To the extent plaintiffs challenge this analysis, their remedy is by appeal.
*2 Plaintiffs’ remaining arguments may be disposed of more quickly. First, plaintiffs argue that the Court erred in failing to analyze their claims under the Establishment Clause or the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc–1 et seq. Neither of these claims was made in plaintiffs’ complaint. While pro se complaints should be liberally construed, that pleading standard “is not without limits, and all normal rules of pleading are not absolutely suspended,” Gil v. Vogilano, 131 F.Supp.2d 486, 491 (S.D.N.Y.2001). Even now, with the assistance of counsel, plaintiffs acknowledge that “winning the Establishment Clause argument will be difficult” (Pls. Reply Mem. at 8), and provide no analysis whatsoever of how the Establishment Clause would have entitled them to the relief that they requested, or how, in light of DOCS’s new program specifically prohibiting the kind of anti-Shi‘ite preaching by Sunni chaplains they cite as the basis of their Establishment Clause claim (Pls. Mem. at 21), they could present such a claim without the exhausting grievance procedures expressly provided by the program to address such behavior by chaplains. Plaintiffs’ statutory argument, which invokes a statute whose applicability was never mentioned by any party to the case until the filing of the Rule 60 motion, ten weeks after the Court’s decision was entered, is equally cursory.
Second, plaintiffs question the Court’s refusal to consider claims turning on the specific behavior of the Muslim chaplain at Fishkill, absent the exhaustion of administrative remedies required by 42 U.S.C. § 1997e(a). (Pls. Mem. at 22–23.) It is undisputed that the anti-Shi‘ite acts attributed by plaintiffs to this imam directly violate DOCS policy, which provides a specific grievance mechanism to address precisely these complaints. 184 F.Supp.2d at 335. While plaintiffs claim that these remedies would be unavailing, the Supreme Court has emphatically refused to “read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).
Finally, plaintiffs claim that defendants are collaterally estopped by the state courts’ orders in Cancel from
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Pugh v. Goord, Not Reported in F.Supp.2d (2002)

litigating whether federal law requires the provision of separate congregational services for Shi‘ite Muslims. This claim is frivolous. The Appellate Division’s decision in Cancel was based on state, not federal, law. See Cancel v. Mazzuca, No. 01 Civ. 3129(NRB), 205 F.Supp.2d 128, 137–38 (S.D.N.Y.2002) (denying collateral estoppel effect to Cancel in federal constitutional litigation). Moreover, the state trial court, in further proceedings in Cancel, has ruled that the Appellate Division did not actually “mandate separate religious services for the Shi‘a inmates” in any event. See Cancel v. Goord, No.1998/3828, slip op. at 5 (Sup.Ct. Dutchess Co. Mar. 14, 2002) (denying contempt motion by plaintiff). Plaintiffs dispute this reading, but to the extent plaintiffs claim that the decree in Cancel entitles them, as a matter of state law, to the very relief they seek here, their remedy lies with the Appellate Division.

effort to turn the case, long after its dismissal, into a broader attack on DOCS policies than they originally presented, is that this Court should have held a trial to determine whether DOCS’s refusal to permit separate religious services for Shi‘ites “furthers some legitimate penological interest,” Farid, 850 F.2d at 926, rather than evaluating the justifications offered by the State as a matter of law. That argument goes to the merits of the Court’s legal analysis, and should be made to the Court of Appeals.
Accordingly, plaintiffs’ motion to vacate the judgment pursuant to Rule 60(b) is denied.
SO ORDERED.
	  

*3 The essence of plaintiffs’ argument, stripped of the

Footnotes

1

Plaintiff Errol Ennis has apparently been deported and has not joined in the present motion.

2

Although the Court’s opinion was signed on December 28, 2001, due to the intervening holidays it apparently was not docketed

until January 3, 2002.

3

Though this motion was technically filed pro se, it was prepared with the assistance of counsel, who has now entered an

appearance as attorney of record for the plaintiffs.

4

Plaintiffs argue that evidence demonstrating material misrepresentations by an adverse party need not be “newly-discovered” to

justify relief under Rule 60(b)(3). Defendants question whether the evidence submitted, which was for the most part developed in

discovery during a long-running case in the Northern District of New York, Orafan v. Rashid, Dkt. No. 95–CV–318, qualifies as

newly-discovered. For present purposes, the Court assumes that this evidence, while well-known to plaintiffs’ new counsel, was

unknown and largely unavailable to incarcerated pro se plaintiffs, and thus, to the extent it matters, is “newly-discovered” by them.

5

The Court conducted a hearing on the plaintiffs’ request for a preliminary injunction on October 5, 2001. At that hearing, in

response to the Court’s effort to elicit exactly what relief plaintiffs sought, plaintiffs specified that they sought separate religious

services, a separate prayer area, and a separate chaplain. (Tr. at 16.)

6

Plaintiffs do assert that, even since the adoption of the program, Sunni Muslim chaplains have violated the new DOCS policies,

which prohibit chaplains from denigrating Shi‘ite beliefs. As noted below and in the Court’s original opinion, however, such

assertions of violations of DOCS policy should be pursued in the first instance through the grievance procedure that is part of the

new policy.

7

It is not in fact clear that these authorities contradict the literal meaning of the Court’s statement that there is no prohibition on

attendance at worship with Sunni adherents. But in the context of the case, the substance of plaintiffs’ point is that the Shi‘ite

authorities cited require that Shi‘ite services be led by a Shi‘ite believer, and that attendance at services led by a Sunni imam is

either prohibited or is, at the very least, without religious value to Shi‘ites.

	  

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 Case 1:00-cv-07279-RJS Document 144 Filed 08/01/08 Page 1 of 40
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
_____________________ No 00 Civ. 7279 (RJS)
_____________________
THOMAS PUGH, JR., AND CLAY CHATIN,
Plaintiffs,
VERSUS
GLENN S. GOORD, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; WARITH DEEN UMAR, FORMER MINISTERIAL PROGRAM COORDINATOR FOR ISLAMIC AFFAIRS; MARK LEONARD, DIRECTOR OF MINISTERIAL AND FAMILY SERVICES; JOHN R. LOCONTE, FORMER DIRECTOR OF MINISTERIAL AND
FAMILY SERVICES; FRANK HEADLEY, FORMER DEPUTY COMMISSIONER FOR PROGRAM SERVICES; JOHN NUTTAL, DEPUTY COMMISSIONER FOR PROGRAM SERVICES AND FORMER ASSISTANT COMMISSIONER FOR PROGRAM SERVICES; WILLIAM MAZZUCA, SUPERINTENDENT OF FISHKILL CORRECTIONAL FACILITY; ADA PEREZ, FORMER DEPUTY SUPERINTENDENT FOR PROGRAM SERVICES AT FISHKILL CORRECTIONAL FACILITY; AND JIMMIE HARRIS, DEPUTY SUPERINTENDENT FOR PROGRAM SERVICES AT FISHKILL CORRECTIONAL FACILITY AND FORMER DIRECTOR
OF MINISTERIAL AND FAMILY SERVICES;
Defendants.
___________________ MEMORANDUM AND ORDER
July 31, 2008

Case 1:00-cv-07279-RJS Document 144 Filed 08/01/08 Page 2 of 40

RICHARD J. SULLIVAN, District Judge:
Plaintiffs Thomas Pugh, Jr., and Clay Chatin, each currently or previously incarcerated by the New York State Department of Correctional Services (“DOCS”), bring this action against defendants Glenn S. Goord, Warith Deen Umar, Mark Leonard, John LoConte, Frank Headley, John Nuttal, William Mazzuca, Ada Perez, and Jimmie Harris (collectively “Defendants”)1 alleging under 42 U.S.C. § 1983 violations of their constitutional and statutory rights to free exercise of Shi’a Islam2 and to be free from the establishment of the Sunni branch of Islam under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000-cc, and the First and Fourteenth Amendments to the Constitution of the United States. Specifically, plaintiffs claim that the failure of DOCS to mandate separate Friday prayer services (known as “Jumah” services) for Shi’ite inmates, independent of Sunni participation, violates their constitutional and statutory rights. Plaintiffs seek declaratory and injunctive relief, compensatory, nominal, and punitive damages, and an award of attorneys’ fees and costs.
1 Original defendant Ismail Abdur Rahim is now deceased. In addition, plaintiffs have stipulated to the dismissal of defendant Muhammad Salih Ahmed from the action. (See Pls.’ Opp’n at 3 n.5.)
2 Although there are many different spellings of the terms “Shi’ite” and “Shi’a,” as well as different usages, the Court has adopted these spellings for clarity’s sake. The Court will generally use “Shi’ite” where a noun or adjective is called for, and “Shi’a” as a descriptive term for the Shi’a faith or religion.

Before the Court are two motions for summary judgment on all claims — one by defendant John LoConte, and another by defendants Goord, Leonard, Headley, Nuttal, Mazzuca, Perez, and Harris (collectively “State Defendants”).3 Defendant Warith Deen Umar is proceeding pro se in this case and has not moved for summary judgment nor joined in either of the motions.
For the reasons that follow, both motions are granted in part and denied in part. Specifically, defendants’ motion to dismiss plaintiff Chatin’s claims for injunctive relief on the basis of mootness is granted. In addition, summary judgment in favor of all defendants is granted on plaintiffs’ RLUIPA claims to the extent plaintiffs seek to recover monetary damages on that claim. In all other respects, defendants’ motions for summary judgment are denied.
I. BACKGROUND
A. The Facts
The following is a recitation of those facts relevant to the resolution of the summary judgment motions. The Court shall view these facts in the light most favorable to plaintiffs, as it must on a motion for summary judgment. See Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004).
3 Where the arguments of all defendants are convergent, the Court shall refer to all moving defendants simply as “defendants.”

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1. The Plaintiffs
Plaintiff Pugh is an inmate currently in the custody of DOCS and housed at Adirondack Correctional Facility. (See Defs.’ 56.1 ¶ 2; Keane Decl. ¶ 2, Ex. B.)4 Pugh formerly resided at both Mid-Orange Correctional Facility in Orange County, New York (“MidOrange”) and Fishkill Correctional Facility in Dutchess County, New York (“Fishkill”). (See Second Am. Compl. ¶ 5.) Plaintiff Chatin is a former inmate of DOCS, having been released on or about October 18, 2007. (See Keane Decl. ¶ 1, Ex. A.) Prior to his release, Chatin was housed at both MidOrange and Fishkill. (See Second Am. Compl. ¶ 6.) Original plaintiff Errol Ennis was deported, did not sign the Second Amended Complaint, and was terminated from this action on January 20, 2004. (See State Defs.’ 56.1 ¶ 2, Ex. L.) Original plaintiff Edward Hamil stipulated to the withdrawal of all of his claims from the lawsuit in 2005. (See id. ¶ 2, Ex. N.)
Plaintiffs identify themselves as adherents of the Shi’a sect of Islam. (Pugh Decl. ¶ 1; Chatin Decl. ¶ 1.) Plaintiffs assert that they have brought this action “to vindicate their constitutional and statutory right to the free and equal exercise of the Shi’ite Muslim religion, and to be free from the establishment of the Sunni Muslim religion, in prisons operated by [DOCS].” (Second Am. Compl. ¶ 1.) According to plaintiffs, there are important differences between the Shi’a faith and the Sunni faith, which require that Shi’ites be given separate accommodations, including their own prayer services. (See, e.g., Pugh Decl. ¶¶ 2, 5-7, 23, 26; Chatin
4 Where only one party’s 56.1 Statement is cited, the facts are taken from that party’s 56.1 Statement, and the other party does not dispute the fact asserted or has offered no admissible evidence to refute that fact.

Decl. ¶¶ 10-12, 15-18, 22-23.) Plaintiffs assert that, as Shi’ites, they are required to participate in a weekly communal prayer service, called the “Jumah” service, which must be led by a Shi’ite imam, or prayer leader. (See Pugh Decl. ¶¶ 11, 16, 18-21, 2324; Chatin Decl. ¶¶ 2-5, 8-11, 18-19.)
2. The Protocol
Current DOCS policy on the accommodation of Shi’ites is governed by the “Protocol for Shi’ite Muslim Programs and Practices” (the “Protocol”). (See State Defs.’ 56.1 ¶ 43 & Ex. C at Ex. 4 (the Protocol, dated October 26, 2001).) The Protocol was implemented in 2001 in response to concerns raised by Shi’ite inmates, including plaintiffs, concerning the treatment and accommodation of Shi’ites by DOCS, as well as the decisions in Cancel v. Goord, 181 Misc. 2d 363, 365-66 (Sup. Ct. Dutchess Cty. 1999) and Cancel v. Goord, 278 A.D. 2d 321, 323 (2d Dep’t 2000).5 (See State Defs.’ 56.1 ¶¶ 36-37; Pls.’ 56.1 Opp’n ¶ 37.) State Defendants assert that the Protocol “was developed through at least two years of review and consultation with major Islamic organizations in New York, including [the Al-Khoei Center for Islamic Studies] in the Spring and Summer of 2001.” (State Defs.’ 56.1 ¶ 49.) According to State Defendants, the purpose of meeting with representatives of the Al-Khoei Center, a Shi’ite mosque and educational center, was to develop a policy that would adequately accommodate Shi’ite inmates. (See State
5 In Cancel, 278 A.D.2d at 322, the Second Department directed that DOCS “conduct administrative proceedings, with Shi’ite participation, to determine the manner in which to best afford Shi’a inmates separate religious services, under appropriate Shi’a religious leadership, in a time and place that comport with legitimate penalogical [sic] concerns.”) (See also Pls.’ 56.1 Opp’n ¶ 37.)

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Defs.’ 56.1 ¶ 38-41.) Following these consultations, DOCS adopted the Protocol and disseminated it to all DOCS facilities. (Id. at 43-44.) State Defendants contend that Al-Khoei supported the Protocol, and agreed with the conclusion that Shi’ites and Sunnis could pray together at Jumah services.6 (Id. at 50-52.)
The Protocol first provides that “all Department employees, including Chaplains, and volunteer Chaplains, and all inmate facilitators, shall absolutely refrain from disparaging in any manner whatsoever, the doctrines, beliefs or teachings of any other religious faith, nor disparage any inmate or group of inmates for being adherents of any other religious faith, or sect.” (Protocol, Article I.) Next, the Protocol instructs that DOCS will consult with “ecclesiastical authorities on Shi’ite Islam in the communityat-large” to obtain guidance and recommendations on the appropriate “texts, literature, [and] educational materials” for Shi’ite inmates, as well as recommendations for Shi’ite volunteer and employee Chaplains. (Id. at Article II.) The Protocol further provides that “Shi’ite Muslim inmates shall
6 Plaintiffs contest State Defendants’ assertions that AlKhoei approved DOCS policies regarding congregate Jumah services. According to plaintiffs, the only purpose of the Al-Khoei meetings with DOCS was to “assure [Al-Khoei] of the department’s compliance with the court’s ruling [in Cancel].” (Pls.’ 56.1 Opp’n ¶ 40.) Plaintiffs assert that “once Al-Khoei realized that DOCS intended to maintain a one-Jum’ah policy permanently, it withdrew all support for the Shi’ite Muslim Protocol.” (Id. ¶ 38.) To this end, plaintiffs point out that “Muhsin Alidina of the Al-Khoei Center testified that once the Center realized that DOCS did not intend to offer separate Shi’ite services, the Center disassociated itself with the Protocol to avoid being part of something they had not agreed upon.” (Id.)

have the same rights as all other inmate faith groups to attend Shi’a Muslim religious education and study classes” as well as “the full and equal opportunity to participate in, without discrimination, the weekly Friday Jumah service for all Muslim inmates of a particular correctional facility.” (Id. at Articles III, IV.) In addition, “Shi’ite Muslim Chaplains, whether they be employees or outside volunteers, shall be entitled to officiate at the weekly Jumah services in the same manner as any other Muslim chaplain or outside volunteer Chaplains.” (Id. at Article IV.) Finally, under the Protocol, “[t]he Department shall revise its Religious Observance Calendar in consultation with its outside ecclesiastical authorities as referenced in Article II hereinabove, to include observances unique to Shi’ite Muslims, namely the observances of Ashura and the Idul-Ghadeer Khum.” (Id. at Article V.)
State Defendants assert that, under the Protocol, Shi’ite inmates are given the option of attending congregate Jumah services on Fridays. (See State Defs.’ 56.1 ¶ 13.) State Defendants also assert that DOCS provides classes and dietary accommodations for Shi’ites, as well as a Shi’ite chaplain who ministers to Shi’ite inmates. (Id. ¶¶ 16, 21.) They also contend that DOCS accommodates observances of religious holidays pursuant to the Protocol. (Id. ¶ 16.) State Defendants admit that Shi’ite Muslim inmates do not have their own separate Jumah service conducted by a Shi’ite cleric, but contend that plaintiff Pugh has conceded that Shi’ites can satisfy the Friday prayer obligations by praying the Zohr prayer alone in their cells. (Id. ¶ 111.)

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3. Plaintiffs’ Opposition to the Protocol
Plaintiffs object to the Protocol first because they contend that it does not go far enough in addressing their needs. Plaintiffs believe that as practicing Shi’ites, they are required to participate in a Friday Jumah prayer service led by a Shi’ite. (See Pls.’ 56.1 ¶¶ 6, 9, 12-14; Pugh Decl. ¶¶ 11, 16, 18-21, 23-24; Chatin Decl. ¶¶ 2-5, 8-11, 18-19.) They also believe that the Jumah service must be separate from a service that includes Sunni Muslims (see Pls.’ 56.1 ¶¶ 2, 9), and that a Sunni-led service does not have religious value to them, nor satisfy their religious requirements (id. ¶¶ 3-5, 9, 15). Likewise, they assert that the Zohr prayer is not an adequate permanent substitute for attending Shi’ite-led Jumah services on a long-term basis. (See id. ¶ 111; Pugh Decl. ¶ 14; Chatin Decl. ¶ 6-8.)7
In that vein, plaintiffs also assert that, despite the implementation of the Protocol, they have been subjected to disparate treatment and experienced anti-Shi’ite discrimination and hostility as a result of DOCS policies and the actions and inactions of DOCS employees. For example, plaintiffs
7 Plaintiffs also present evidence that, in any event, the Protocol is not being fully and properly implemented. For example, Chatin asserts that, at Fishkill, Shi’ite inmates “were never given the opportunity to celebrate either Ashura or Id’l ghadeer Khum,” contrary to the Protocol’s directives, and that, at Mid-Orange, Shi’ites have never been allowed to celebrate Id’l ghadeer Khum. (Chatin Decl. ¶¶ 63-69.) Chatin also asserts that, despite the fact that the Protocol directs that the Muslim Majils, or councils, in each facility shall have at least one Shi’ite member (if there is a Shi’ite in the general population), Shi’ites were never members of the Majils or allowed to lead prayers at either Fishkill or Mid-Orange. (Id. ¶ 72.)

state that many prison libraries contain antiShi’ite books and other propaganda; that, at certain facilities, Shi’ites are denied means to break the Ramadan fast if they do not attend the Sunni Jumah; and that Shi’ites often cannot obtain books for Shi’ite programs or storage for books, even though storage is available. (See Pugh Decl. ¶¶ 40-42; Chatin Decl. ¶¶ 43-44, 46, 53-54.) They also contend that they have personally experienced discrimination and hostility from Sunni inmates and leaders, including defendant Umar, which defendants have failed to remedy. (See, e.g., Pugh Decl. ¶¶ 27-39, 43; Chatin Decl. ¶¶ 28-34, 45-49.)
Plaintiffs thus contend that “DOCS’ accommodation of Shi’ite Muslims is insufficient and is in essence a Sunni Muslim program, not a generic program.” (Pls.’ 56.1 Opp’n ¶ 13; see also Pugh Decl. ¶¶ 23-24; Chatin Decl. ¶¶ 51.)
B. Procedural History
Plaintiffs commenced this action on September 27, 2000. On August 27, 2001, in response to the implementation of the Protocol, Pugh filed a motion for a preliminary injunction seeking “to afford plaintiffs and other Shi’ite Muslims in the same situation a separate prayer area free from Sunni influence in a time or place that comport[s] with legitimate penological concerns.” (State Defs.’ 56.1 ¶ 54.) On October 5, 2001, the Court held a conference at which the parties were instructed to address whether the Protocol had mooted plaintiffs’ claims at issue in the case. (See August 21, 2001 Order.) Pugh informed the Court that, notwithstanding the Protocol, plaintiffs

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required separate religious services, including a separate prayer area. (State Defs.’ 56.1 ¶ 56.) Both plaintiffs stated, either on the record or in affidavits, that they required a separate Shi’ite chaplain to lead the prayer services. (Id. ¶¶ 56-57.)
On January 3, 2002, the Honorable Gerald E. Lynch, District Judge, to whom this case was previously assigned, denied the plaintiffs’ request for a preliminary injunction and dismissed the case sua sponte, finding that the joint services policy did not violate the First Amendment. See Pugh v. Goord, 184 F. Supp. 2d 326, 337 (S.D.N.Y. 2002). On September 24, 2003, the Second Circuit reversed, finding that a sua sponte dismissal was not appropriate. See Pugh v. Goord, 345 F.3d 121, 124-26 (2d Cir. 2003).
The plaintiffs then filed a Second Amended Complaint, and the parties proceeded to discovery. On September 3, 2004, the case was reassigned to the Honorable Kenneth M. Karas, District Judge, and discovery closed on or about September 30, 2005. On April 6, 2006, defendants filed the instant summary judgment motions.
On September 4, 2007, this case was reassigned to the undersigned. On September 28, 2007, the Second Circuit issued an unpublished summary order reversing the district court’s grant of summary judgment in a similar case, Orafan v. Rashid, pending in the Northern District of New York. See Orafan v. Rashid, 249 Fed. Appx. 217 (2d Cir. Sept. 28, 2007). In that order, the court stated that reversal was appropriate because the record reflected “unresolved issues of material fact relevant to the questions of (1) the burden that the denial of a Friday

congregate prayer service placed on plaintiffs’ religious exercise; and (2) whether the DOC is able to accommodate plaintiffs’ request for a [Shi’ite]-led Friday congregate prayer service without jeopardizing legitimate penological objectives.” Id. at 218.
In a letter dated October 1, 2007, plaintiffs wrote to the Court, apprising the Court of the Orafan decision and requesting that the Court deny the outstanding summary judgment motions based on Orafan. Defendant LoConte and State Defendants responded to plaintiffs’ letter with their own letters, dated October 5, 2007 and October 9, 2007, respectively, asserting that the summary judgment motions were still viable and should be granted. On October 29, 2007, the Court held a conference to address the impact of Orafan on the pending motions. After that conference, the parties filed supplemental briefs with the Court, and the Court held oral argument on the motions on February 13, 2008.
II. STANDARD OF REVIEW
The standards for summary judgment are well-settled. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may not grant a motion for summary judgment unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Bronx Household of Faith v. Bd. of Educ. of City of New York, 492 F.3d 89, 96 (2d Cir. 2007). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 256 (1986). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am., 361 F.3d at 122; see also Anderson, 477 U.S. at 248 (holding that summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”); Rivkin v. Century 21 Teran Realty LLC, 494 F.3d 99, 103 (2d Cir. 2007). As such, “if ‘there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party’s] favor may be drawn, the moving party simply cannot obtain a summary judgment.’” Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (quoting R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997)) (alteration in original).
III. DISCUSSION
A. Mootness
1. Pugh
State Defendants assert that because Pugh has been transferred to the Adirondack Correctional Facility (“Adirondack”) and is no longer a prisoner at Fishkill, his claims for injunctive relief are moot. (See State Defs.’ Supp. Mem. at 8-9.) Pugh argues that his claims are not moot, because he “possesses a very real and legally cognizable interest in the outcome of this case” as he continues to be denied a separate Shi’ite Jumah service at Adirondack. (See Letter dated Nov. 16, 2007 from Aaron O. Levine and Amy E. Howlett to the Court (“Pls.’ Supp. Mem.”) at 2.)

Generally, it is true that a prisoner’s transfer from a prison facility moots that prisoner’s claim for injunctive relief against the transferring facility. See Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996). However, there is an exception to the mootness doctrine for challenged actions that are “capable of repetition, yet evading review.” See Murphy v. Hunt, 455 U.S. 478, 482 (1982). This exception will be applied — provided the action is not a class-action lawsuit — if “‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [i]s a reasonable expectation that the same complaining party would be subjected to the same action again.’” Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)); Muhammad v. City of New York Dep’t of Corr., 126 F.3d 119, 123 (2d Cir. 1997).
The Court finds that Pugh’s action qualifies for the “capable of repetition, yet evading review” exception, and that Pugh’s transfer does not moot his action for injunctive relief. First, the Court finds that the duration element is satisfied, due to DOCS’ ability to freely transfer Pugh between facilities prior to full litigation of his claims. To find otherwise would mean that prison officials could simply transfer a prisoner from facility to facility in order to moot his claims, even where the same conditions that underlie the plaintiff’s litigation are present at the new facility. Second, the Court finds that there is “a reasonable expectation that the same complaining party [will] be subject to the same action again.” Murphy, 455 U.S. at 482; see also Washington v. Harper, 494 U.S. 210, 219 (1990) (holding that prisoner’s claims were not moot despite prisoner’s transfer to a

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non-offending facility, given that the “[t]he alleged injury would likely recur”). Pugh still maintains “a legally cognizable interest,” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979), in the outcome of this action given that he is still a prisoner at a DOCS facility. DOCS’ policies, particularly the Protocol, are applicable to all prison facilities, and no separate Shi’ite Jumah services appear to be currently available at Adirondack Correctional Facility, where Pugh is housed. (See Pls.’ Supp. Mem. at 2; Keane Decl. ¶ 4 (“Adirondack does not have the physical space at this time to accommodate an additional Jumah service.”).) Additionally, there is some evidence that plaintiff has made similar requests for Shi’ite services to officials at Adirondack, though State Defendants dispute this assertion. (See Lavine Decl. ¶ 7 (noting that, on information and belief, Pugh has requested Shi’ite Jumah services at Adirondack); Keane Decl. ¶ 3 (“[O]fficials at Adirondack . . . have not fielded any requests by any Muslim inmate to have Jumah services separate from the unitary services now provided for by DOCS.”).)
Accordingly, the Court finds that Pugh’s claims for injunctive relief are not moot.
2. Chatin
State Defendants also contend that plaintiff Chatin’s claims for injunctive relief are moot, given that he was released from DOCS custody in October 2007. (See State Defs.’ Supp. Mem. at 7-8.) Chatin asserts in opposition that his claims are not moot because he “intends to serve as an external facilitator for Shi’ite Jumah services in DOCS, where he would visit, join in, and perhaps lead Friday Jumah services.” (Pls.’

Supp. Mem. at 3.) Chatin also contends that the conduct challenged by his claims for injunctive relief is capable of repetition, yet evading review, because “given the unfortunately high rates of recidivism in America, it is all too likely that Mr. Chatin will find himself in prison once again . . . .” (See id. at 4.)
Where a prisoner has been released from prison, his claims for injunctive relief based on the conditions of his incarceration must be dismissed as moot. See Hallett v. New York State Dep’t of Corr. Serv., 109 F. Supp. 2d 190, 196 (S.D.N.Y. 2000) (citing Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 WL 714878, at *3 (S.D.N.Y. Nov. 17, 1997)); see also Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (holding that a lawsuit brought by two prisoners to modify prison policies on magazine subscriptions, where not a class action lawsuit, was moot where one prisoner had been released and the other had died by the time the district court entered an order).
The Court finds that, given that plaintiff Chatin was released from prison on October 18, 2007 (see Keane Decl. ¶ 1, Ex. A), Chatin’s claims for injunctive and/or declaratory relief against DOCS are moot. First, the Court rejects Chatin’s argument that his participation as an “external facilitator” for Shi’ite Jumah services in DOCS, even if permitted, allows Chatin to continue to assert claims for injunctive relief. There is no guarantee that Chatin will be permitted to be a “facilitator” for Shi’ites in DOCS custody. Even if he were permitted to do so, Chatin has not shown how such activity would constitute a legally-cognizable interest in the instant litigation. Chatin’s claims arise out of DOCS’ refusal to provide him with a separate Shi’ite

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Jumah service. Given that Chatin is no longer a prisoner, and thus free to worship in any manner available to him going forward, he has no remaining interest in the litigation.
Chatin’s second argument — that he will likely end up in prison again, thus preserving his claim in the event of future incarceration — is meritless, speculative, and, on some level, highly insulting. See Muhammad, 126 F.3d at 124 (rejecting plaintiff’s claim that his case was capable of repetition yet evading review where “he has stated no basis for an expectation that he will again find himself in the custody of the DOC and subject to its policies”). Accordingly, Chatin’s claims for injunctive relief are denied as moot. This holding does not implicate Chatin’s claims for monetary damages, which are addressed below.
B. Exhaustion
Defendants next move for summary judgment on the ground that plaintiffs failed to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). (See State Defs.’ Mem. at 20-25; LoConte Mem. at 50.) Plaintiffs respond that their claims were properly exhausted pursuant to the PLRA. (See Pls.’ Opp’n at 22-28.) For the reasons that follow, the Court finds that plaintiffs properly exhausted their administrative remedies and summary judgment on this ground is denied.
1. Legal Standard
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). It is well-settled that this requirement “applies to all inmate suits about prison life, whether they involved general circumstances or particular episodes, and whether they alleged excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). A grievance that is procedurally defective does not satisfy the exhaustion requirement, regardless of the notice given to prison officials about the claim. See Woodford v. Ngo, 548 U.S. 81, 8384 (2006).
“Complete exhaustion to the highest level is required for each claim.” Singh v. Goord, 520 F. Supp. 2d 487, 495 (S.D.N.Y. 2007) (citing Veloz v. New York, 339 F. Supp. 2d 505, 514 (S.D.N.Y. 2004)). “Moreover, a claim must be completely exhausted prior to commencing suit. It is insufficient to take only limited steps towards exhaustion before commencing the suit, or even to exhaust a claim entirely during the pendency of the case.” Schwartz v. Dennison, 518 F. Supp. 2d 560, 568 (S.D.N.Y. 2007) (citing Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001)).
It is undisputed that DOCS has established an Inmate Grievance Program (“IGP”), the purpose of which is to provide inmates with an “orderly, fair, simple and expeditious method of resolving grievances . . .” in accordance with the PLRA’s exhaustion requirement. 7 N.Y. Comp. Codes R. & Regs. tit. 7, § 701.1(a) (2008); (Pls.’ Opp’n at 23); see also Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004). Therefore, the only issue before the Court is whether plaintiffs

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exhausted their administrative remedies via the IGP.
2. Analysis
It is undisputed that Pugh filed a grievance on December 26, 1999. (See Defs.’ Mem. at 22; Pugh Decl. Ex. G at D0846.) In that grievance, Pugh described his complaint as concerning “the discrimination of the Shi’ite community in this facility . . . when there are differences in religious understanding, and that the Sunni religious coordinator nor their teachers can give grievant adequate religious understand[ing].” (Pugh Decl. Ex. G at D0846.) Pugh requested that the “administration take appropriate steps to accommodate grievant with the appropriate religious coordinator, and outside visitors pursuant to directive #4750 as other religious groups, i.e., Sunni, [Nation of Islam], Moorish, etc., and any further relief deem[ed] proper in this circumstance.” (Id.)
The evidence in the record also demonstrates that Chatin filed a grievance on December 22, 1999. (See Chatin Decl. Ex. B at D0844.) In that grievance, Chatin described his complaint as follows: “Grievant who is a Shi’a [M]uslim is complaining that he is being discriminated against by this facility by depriving him his rights to religious freedom granted by the 1st Amend[ment]. This fac[ility] is gone so far as to discriminate against grievant that they deprive the grievant the rights to meet with volunteers of the grievant’s beliefs in accordance with directive # 4750.” (Id.) Chatin requested that “this discrimination stop and the facility stop denying the grievant his right to meet and receive spiritual guidance

from a cleric of his belief in accordance with directive # 4750.” (Id.)
Finally, former plaintiff Ennis also filed a grievance on December 22, 1999. (See Pugh Decl. Ex. G at D0851.) In that grievance, Ennis wrote that he was also a Shi’ite Muslim being deprived of his right to meet with a volunteer who could provide spiritual counseling in accordance with directive # 4750. (Id.) Ennis also wrote that “this grievant ha[s] no place of worshiping and practice my belief. Fishkill provide others with a chapl[a]in and a place to worship and study. The Sunnies [sic] have a place of worshiping also does the Nation of Islam . . . our teaching do not go together we need a place to worship and do our studies.” (Id. at D0851, D0845.) Ennis’s grievance was labeled with the number 19483-99. (Id.)
Pugh and Chatin were informed by letters of March 6 and March 17, 2000, respectively, that their grievances had been consolidated with Ennis’s grievance, under the number 19483-99. (Id. at PUGH 0031-32; see also Pls.’ 56.1 Opp’n ¶¶ 9-11.) On January 7, 2000, the Superintendent rendered a decision on the consolidated grievance, stating that “[t]he Sh’ia Muslim inmates have been told by Imam Muhammad that until we get clarification from Counsel’s Office in Albany regarding a court case pending, the Sh’ia Muslims are to be afforded the same type service as all Islamic inmates.” (Pugh Decl. Ex. G at D0841 (emphasis added).) That decision listed “E. Ennis” as the grievant, but indicates that the decision was copied to “T. Pugh” and “C. Chatin.” (Id.) Ennis then appealed the decision on January 11, 2000, stating “there is a major difference between

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Sunnis and Shi’as . . . we need clergy of our faith to counsel us!” (Id.)
On February 2, 2000, DOCS’ Central Office Review Committee (“CORC”) issued a decision upholding the determination of the Superintendent, noting that “the Sh’ia Muslims are receiving appropriate religious accommodations . . .” (Pugh Decl. Ex. G at D0840.) The decision specifically quoted the complaints contained in the consolidated grievance. (Id.) After the decision was issued, Chatin also wrote a letter to CORC on behalf of himself, Pugh, and Ennis requesting an “appeal” of that decision on the grounds that CORC should have conducted an investigation rather than relying on the investigation of defendant Ada Perez, the former Deputy Superintendent for Program Services at Fishkill. (See Chatin Decl. ¶ 39 & Ex. D.)
Defendants do not contest that the grievances were consolidated and fully exhausted by appeal to the CORC. Instead, they assert that plaintiffs Pugh and Chatin did not themselves file grievances specifically complaining about separate Jumah services for Shi’ite inmates, or any other grievances encompassed in the lawsuit. (State Defs.’ Mem. at 22-24.) They further argue that “[p]laintiffs should not be permitted to piggyback on another inmate’s grievance, which, generally related by catch-all theme — ‘worship’ — is not specifically related to relief they sought” (State Defs.’ Reply Mem. at 5), and that the decision by CORC on the consolidated grievance “was not responsive to plaintiffs’ grievances” (id).
The Court finds that the undisputed facts demonstrate that the plaintiffs properly and

fully exhausted their administrative remedies prior to filing this lawsuit. First, it is clear that the 1999 grievances of Pugh, Chatin, and Ennis were consolidated into one grievance, pursuant to § 701.7(2), which permits the consolidation of “like grievances” at the discretion of certain IGP officials. See 7 N.Y. Comp. Codes R. & Regs. tit. 7, § 701.7(2) (2008); see also Labounty v. Johnson, 253 F. Supp. 2d 496, 503 (W.D.N.Y. 2003). The Court thus rejects State Defendants’ contention that the DOCS response to Ennis’s grievance was merely “forwarded” to Pugh and Chain. (State Defs.’ Reply at 5.) Rather, the Court finds that the decisions of the Superintendent and CORC encompassed all three grievances, and considered them “like” grievances addressing related issues. This is evident based on the notice of consolidation sent to Pugh and Chatin (see Pugh Decl. Ex. G at PUGH 0031-32), the fact that the cases were consolidated under the same grievance number 19483-99 (id), and the reference in the Superintendent’s decision to the claims of “Sh’ia Muslim inmates.” (Id. at D0841 (emphasis added).) There is also no question that the consolidated grievance was fully exhausted, as the CORC issued a final decision on the grievance. (See Pugh Decl. Ex. F at 0840.) As such, the Court finds that the 1999 grievances of Pugh and Chatin were fully exhausted in accordance with the PLRA.
Second, it is clear from the face of the Superintendent’s and CORC’s decisions that the subject matter of the consolidated grievance was the same as the subject matter of this litigation — namely, that Shi’ites are entitled to certain rights given to other Muslims in DOCS custody (separate services and counseling). The Superintendent noted that, pending further instruction from counsel,

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“the Sh’ia Muslims are to be afforded the same type service as all Islamic inmates.” (Pugh Decl. Ex. G at D0841 (emphasis added).) Likewise, the decision from the CORC noted that “the Sh’ia Muslims are receiving appropriate religious accommodations . . . .” (Id. at D0840.) Thus, it is clear that the issues raised in the consolidated grievance are the same issues raised by plaintiffs in the instant action, specifically plaintiffs’ request for separate Jumah services, and access to a Shi’ite spiritual counselor.
The PLRA requires “proper exhaustion,” or “that a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Woodfood, 548 U.S. at 88. Defendants have not pointed to any part of the administrative review process that was not completed by plaintiffs via the consolidated grievance. Moreover, proper exhaustion fulfills the goals of the PLRA because it “gives prisoners an effective incentive to make full use of the prison grievance process and accordingly provides prisons with a fair opportunity to correct their own errors.” Id. at 94. It is clear from the record that the consolidated grievance complied with IGP procedures, and gave prison officials a “fair opportunity” to consider plaintiffs’ complaints, including the request for a separate Shi’ite chaplain and worship separate from Sunnis, in the manner afforded to other Muslim sects. Id.; see also Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (“In order to exhaust, therefore, inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive

measures.”) Those complaints remain the subject of this litigation.
Finally, State Defendants also assert that plaintiffs’ claims against the individual defendants must be dismissed because plaintiffs failed to mention any allegedly unlawful conduct by the individual defendants in their grievances. (See State Defs.’ Reply Mem. at 4 & n.3.) However, the Supreme Court has squarely held that an inmate is not required to name in a grievance each defendant he later wishes to sue in order to fully exhaust his claims. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 922 (2007).
Accordingly, defendants’ motions for summary judgment on the grounds that the plaintiffs did not properly exhaust administrative remedies are denied.8
C. The Establishment Clause
State Defendants next assert that summary judgment is appropriate against plaintiffs’ claims that defendants have established Sunni Islam as the official Islamic religion of DOCS because the record is devoid of any evidence to demonstrate such an establishment. (State Defs.’ Mem. at 40-41.) Plaintiffs respond that they have proffered evidence sufficient to demonstrate that DOCS’ religious programs advance, for non-secular purposes, one interpretation of Islam over another. (Pls.’
8 Because the Court finds that plaintiffs exhausted their claims via the IGP process, the Court need not reach the question of whether the grievances filed by plaintiffs subsequent to the commencement of this action, but before the filing of the Second Amended Complaint, satisfy the exhaustion requirement. (See State Defs.’ Mem. at 24-25; Pls.’ Opp’n at 25-28; State Defs.’ Reply at 3-5.)

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Opp’n at 71.) For the reasons that follow, defendants’ motion for summary judgment on the Establishment Clause claim is denied.9
1. Legal Standard
“The Establishment Clause forbids ‘excessive government entanglement with religion.’” Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) (quoting Lemon v. Kurtzman, 403 U.S. 602, 613 (1971)). The test articulated in Lemon v. Kurtzman has never been overruled and continues to govern the analysis of Establishment Clause claims in the Second Circuit. See Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 355 (2d Cir. 2007) (“In determining whether a
9 Defendant LoConte asserts that “[t]he issues with respect to the plaintiffs’ Establishment Clause and Equal Protection claims are understood to be directed against DOCS Commissioner Goord” (LoConte Mem. at 43), and notes that he is not mentioned in plaintiff’s arguments relating to the Establishment Clause (LoConte Reply Mem. at 9). LoConte further contends that “[t]o the extent that [the Establishment Clause and Equal Protection Clause claims] are addressed to Mr. LoConte, he asserts that plaintiffs cannot prove those claims, that he had no personal involvement, that plaintiffs have not identified the allegedly similarly suited group, that he had no animus, and his actions withstand rational review.” (LoConte Mem. at 43.) LoConte’s assertions that plaintiffs’ claims pursuant to the Establishment Clause and Equal Protection Clause apply only to Goord are unwarranted. Moreover, LoConte’s statements that plaintiffs cannot prove these claims against him, and that he had no “animus” are conclusory and insufficient to support a motion for summary judgment. The Court interprets LoConte’s remaining arguments as joining in those made by the State Defendants, which are discussed infra. (See Section III.H.2. (addressing personal involvement), Section III.E.2. (addressing “similarly situated” issue), and Sections III.C.2. and III.E.2. (addressing whether defendants actions were reasonably related to legitimate penological interests).)

particular law violates the Establishment Clause . . . we examine the government conduct at issue under the three-prong analysis articulated by the Supreme Court in [Lemon].”); see also Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 634 (2d Cir. 2005). “Under Lemon, government action that interacts with religion must: (1) have a secular purpose, (2) have a principal effect that neither advances nor inhibits religion, and (3) not bring about an excessive government entanglement with religion.” Westchester Day Sch., 504 F.3d at 355 (citing Lemon, 403 U.S. at 612-13). Of particular relevance in this case is the principle “at the heart of the Establishment Clause” that “government should not prefer one religion to another, or religion to irreligion.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703 (1994).
“Because plaintiff is a prisoner challenging a Department of Corrections directive, the Lemon test is tempered by the test laid out by the Supreme Court in Turner v. Safley [482 U.S. 78 (1987)], which found that a prison regulation that impinges on an inmate’s constitutional rights is nevertheless valid ‘if it is reasonably related to legitimate penological interests.’” Salahuddin v. Perez, No. 99 Civ. 10431 (LTS), 2006 WL 266574, at *9 (S.D.N.Y. Feb. 2, 2006) (citing Warburton v. Underwood, 2 F. Supp. 2d 306, 316 (W.D.N.Y. 1998)). The Turner Court articulated four factors that are relevant to the analysis of whether a regulation is reasonably related to legitimate penological interests: “(i) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (ii) whether there are alternative means of exercising the right in question that

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remain open to prison inmates; (iii) whether accommodation of the asserted constitutional right will have an unreasonable impact upon guards and other inmates, and upon the allocation of prison resources generally; and (iv) whether there are reasonable alternatives available to the prison authorities.” Iqbal v. Hasty, 490 F.3d 143, 171-72 (2d Cir. 2007) (citing Covino v. Patrissi, 967 F.2d 73, 78-79 (2d Cir. 1992)); see also Turner, 482 U.S. at 89-91. The Court in Turner stated in conclusion that “if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Turner, 482 U.S. at 91.
2. Analysis
State Defendants contend that there is no evidence in the record demonstrating that DOCS has established Sunni Islam as the official Islamic religion of DOCS, and that the actions of DOCS thus satisfy the Lemon test. (See State Defs.’ Mem. at 40-41.) State Defendants further assert that plaintiffs “can demonstrate no fact or demographic that suggests an unrepresentative distribution of chaplains to inmates. (See State Defs.’ Reply Mem. at 11.) Plaintiffs respond that they have proffered evidence sufficient to demonstrate that “DOCS Muslim program establishes, endorses, and promotes Sunni Islam.” (Pls.’ Opp’n at 74.)
The Court first finds that plaintiffs have offered evidence sufficient to demonstrate a genuine issue of material fact as to whether DOCS’ policies violate the Establishment

Clause by advancing Sunni Islam over Shi’a Islam and inhibiting plaintiffs’ religious practice. Specifically, plaintiffs have proffered evidence that the “generic” Jumah prayer service is “in essence a Sunni Muslim program, not a generic program” (Pls.’ 56.1 Opp’n ¶ 13), because it is “led by Sunni Chaplains and prayed in the Sunni manner, and the khutbah’s [sic] discuss religious topics from a Sunni perspective.” (Pugh Decl. ¶¶ 24, 27; see also Chatin Decl. ¶ 25; Pls.’ 56.1 Opp’n ¶ 16.) Plaintiffs further present evidence that “DOCS’ Chaplains claim to promote ‘generic’ Islam, but in reality they have used their positions to advocate a single form of Islam that does not recognize the legitimacy of different sects within the Muslim faith” and “consider[s] Shi’ite beliefs heretical.” (Pugh Decl. ¶ 25; see also Chatin Decl. ¶¶ 26-35.) Plaintiffs point to specific instances in which chaplains providing purportedly “neutral” or “generic” services have “denigrated” Shi’ite beliefs, and called Shi’ites “deviant” and “heretical.” (See Chatin Decl. ¶¶ 28-35; Pugh Decl. ¶¶ 27-37.) Furthermore, while State Defendants contend that DOCS employs a Shi’ite chaplain coordinator to minister to the approximately 200 Shi’ite Muslim inmates (State Defs.’ 56.1 ¶ 23), plaintiffs assert that DOCS’ sole Shi’ite chaplain “does not get to lead Shi’ite religious services in any facilities, but instead spends his time as an administrator in DOCS’ Central Offices” (Pls.’ 56.1 Opp’n ¶ 23). This and other evidence in the record is sufficient to create an issue of fact under Lemon that DOCS’ policies violate plaintiffs’ rights under the Establishment Clause.
Given that plaintiffs have proffered evidence in support of their claim that their constitutional rights under the Establishment

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Clause have been violated, DOCS must demonstrate that the regulations are “reasonably related to legitimate penological interests” for summary judgment to be appropriate. Turner, 482 U.S. at 89. In an effort to make such a showing, State Defendants have listed the various interests served by having one unified Jumah, as opposed to separate services. First, State Defendants proffer evidence that DOCS has an interest in avoiding the administrative problems that would result from having to “take sides” in religious disputes and “entang[le] itself administratively in deciding exclusively religious issues.” (State Defs.’ Mem. at 30-31; see also LoConte Mem. at 3334.) Second, State Defendants assert that the current policy of one Jumah enhances prison security, because “fragmenting inmate populations into insular groups invites difficulty.” (State Defs.’ Mem. at 31-32; see also LoConte Mem. at 33.) Third, State Defendants cite financial concerns based on the fact that additional staff would have to be hired to supervise and escort the inmates back and forth from the additional services, and the fact that additional chaplains would have to be hired. (State Defs.’ Mem. at 32-33.) Finally, State Defendants cite space concerns, given that space is “at a premium” during the week, and “is difficult to find, furnish, secure and maintain.” (Id. at 33-34.)
The Court finds that disputed issues of fact exist regarding whether the regulations are reasonably related to legitimate penological interests. The Second Circuit held in Orafan, and the record reflects here, that there are “unresolved issues of material fact relevant to . . . whether the DOC is able to accommodate plaintiffs’ request for a Shi’ite-led Friday congregate prayer service

without jeopardizing legitimate penological objectives.” Orafan, 249 Fed. Appx. at 218. For example, plaintiffs have presented evidence that DOCS regularly makes decisions to provide separate religious services to other groups, including Catholics, Protestants, Native Americans, Rastafarians, and Seventh Day Adventists. (See Pls.’ Opp’n at 47, 61-63.) Plaintiffs further submit evidence that demonstrates that defendants’ concerns about hiring additional chaplains could be offset by permitting Shi’ite inmates to lead Jumah services in the absence of Shi’ite chaplains, as Sunnis are allowed to do. (See Chatin Decl. ¶ 84; Pugh Decl. ¶ 90.) Plaintiffs further assert that there are several rooms at Mid-Orange where Shi’ites could hold Jumah services at the same time as Sunnis, that Shi’ites could meet after the Sunni service concludes, or that Shi’ites could use the room not used by Rastafarians on Fridays. (See Chatin Decl. ¶¶ 77-80; Pugh Decl. ¶¶ 86, 89.) Pugh also asserts that there are empty rooms at Fishkill that could be used. (See Pugh Decl. ¶ 86.) He also states that, at Mid-Orange, the area originally designated for the Sunni Jumah could be used for a Shi’ite service, as the Sunnis instead use the gym/chapel space, which is bigger, for their service. (See Pugh Decl. ¶ 86.) Finally, plaintiffs state that inmates are not escorted to Jumah services at Fishkill or Mid-Orange, and thus additional escorts would not be needed. (See Chatin Decl. ¶ 81; Pugh Decl. ¶ 91.)
In light of the decision in Orafan, and viewing the evidence in the light most favorable to plaintiffs, the Court finds that there is a material factual dispute as to whether DOCS is able to accommodate plaintiffs so as not to violate their rights under the Establishment Clause “at de minimis cost

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to valid penological interests.” Turner, 482 U.S. at 91; see also Ford v. McGinnis, 352 F.3d 582, 584 (2d Cir. 2003) (remanding to district court for a determination of whether the denial of a religious meal was reasonably related to a legitimate penological interest under Turner and O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)). Accordingly, State Defendants’ motion for summary judgment on the claim that DOCS policy violates the Establishment Clause is denied.
D. The Free Exercise Clause
Defendants next move for summary judgment against plaintiffs’ claim that defendants have violated their constitutional and statutory rights to free exercise of Shi’a Islam under the First Amendment. (Second Am. Compl. ¶¶ 131-133.) Defendants argue that plaintiffs have failed to demonstrate that DOCS’ policies constitute a substantial burden on their religious beliefs, and that, even if they could make such a showing, the reasonableness of DOCS’ asserted penological interests justifies the burden on plaintiffs’ beliefs. (See State Defs.’ Mem. at 25-40; LoConte Mem. at 17-38.) In response, plaintiffs argue that they have presented triable and disputed issues of fact precluding summary judgment on this claim. (Pls.’ Opp’n at 49-57.) For the reasons set forth below, defendants’ motions for summary judgment on the Free Exercise claims are denied.
1. Legal Standard
“Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment’s Free Exercise Clause.” Ford, 352 F.3d at 588

(citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). However, because the religious rights of prisoners must be balanced against the interests inherent in prison administration, free exercise claims of prisoners are “judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” O’Lone, 482 U.S. at 349; see also Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006); Ford, 352 F.3d at 588. Under this reasonableness test, “‘when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.’” Id. (citing Turner, 482 U.S. at 89). This test is less restrictive than the test ordinarily applied to non-prisoner free exercise claims because, as the Court recognized, “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” O’Lone, 482 U.S. at 348.
To succeed on a claim under the Free Exercise Clause, “[t]he prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs.” Salahuddin, 467 F.3d at 274-75 (citing Ford, 352 F.3d at 591). “The defendants then bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct; the burden remains with the prisoner to show that these articulated concerns were irrational.” Id. at 275 (citing

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Ford, 352 F.3d at 595) (additional citations and internal quotation marks omitted).10
2. Analysis
(a) Sincerely-Held Belief
Because courts are “singularly illequipped to sit in judgment on the verity of an adherent’s religious beliefs . . . an individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are
10 Plaintiffs assert that they need not show that the challenged practices constitute a substantial burden on their religious beliefs in order to obtain relief under the Free Exercise Clause, citing to the Second Circuit’s explicit refusal to make that finding in Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003) and Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006). (See Pls.’ Mem. at 50 n.52.) The Ford court noted that “the Circuits apparently are split over whether prisoners must show a substantial burden on their religious exercise in order to maintain free exercise claims.” Ford, 352 F.3d at 592. Nevertheless, the Ford court held that since the plaintiff had not challenged the application of the substantial burden requirement, the court would proceed as if the requirement applied. Id. Likewise, the Salahuddin court noted that “[r]esolution of this appeal does not require us to address Salahuddin’s argument that a prisoner’s First Amendment freeexercise claim is not governed by the ‘substantial burden’ threshold requirement,” because defendants “never proceed to argue that we should find any particular burdened religious practice to be peripheral or tangential to [plaintiff’s] religion.” Salahuddin, 467 F.3d at 274-75 & n.5. The Court then proceeded as if the substantial burden requirement applied. See id. Here, the Court will assume that the substantial burden requirement applies, but for a different reason. As discussed infra, even assuming arguendo that the requirement applies, the plaintiffs have put forth evidence sufficient to demonstrate the existence of disputed issues of material fact relevant to whether the challenged conduct constitutes a “substantial burden” on their religious practice, thus precluding a grant of summary judgment on this claim.

sincerely held and in the individual’s own scheme of things, religious.” Ford, 352 F.3d at 588 (citations and internal quotation marks omitted). The Second Circuit has noted that “[s]incerity analysis is exceedingly amorphous, requiring the factfinder to delve into the claimant’s most veiled motivations and vigilantly separate the issue of sincerity from the factfinder’s perception of the religious nature of the claimant’s beliefs.” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984).
State Defendants essentially concede that the first element, a sincerely-held religious belief, does not lend itself to a decision on summary judgment. (See State Defs.’ Mem. at 26-27 (“While the record arguably demonstrates that plaintiffs’ asserted beliefs are not sincerely held . . . such a defense, requiring extensive fact-finding, cannot be established on a motion for summary judgment.”).) LoConte however argues that Chatin should be estopped from asserting his claims that his Shi’ite beliefs are sincerelyheld because he previously brought suit challenging disciplinary action taken against him for praying in a Sunni manner in the yard at the Green Haven Correctional Facility. (See LoConte Mem. at 21-23.) Plaintiffs respond that, in that prior suit, Chatin did not seek the right to pray as a Sunni, but as a Muslim, and that the reason he prayed in the Sunni manner was because he was “under taqiyah,” or a form of hiding for protection because he was fearful of identifying himself as a Shi’ite. (Pls.’ Opp’n at 33 (citing Coleman Decl. Ex. 11, at 59, 90 (Transcript of Chatin Deposition)).)
The Court finds that while there is no question as to the religious nature of

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plaintiffs’ beliefs, there are genuine issues of fact as to the sincerity of plaintiffs’ Shi’ite beliefs, including whether Chatin ever espoused Sunni beliefs. Summary judgment is thus not appropriate on this issue. See Patrick, 745 F.2d at 157 (sincerity is an issue for the factfinder). Thus, the Court will assume for the purposes of this claim that the plaintiffs’ beliefs are sincerely held.
(b) Substantial Burden
The court in Ford summarized the substantial burden test as follows:
Applying the substantial burden test requires courts to distinguish important from unimportant religious beliefs, a task for which we have already explained courts are particularly ill-suited. Always present is the danger that courts will make conclusory judgments about the unimportance of the religious practice to the adherent rather than confront the often more difficult inquiries into the sincerity, religiosity and the sufficiency of the penological interest asserted to justify the burden. The substantial burden test, however, presupposes that there will be cases in which it comfortably could be said that a belief or practice is so peripheral to the plaintiff’s religion that any burden can be aptly characterized as constitutionally de minimis.
352 F.3d at 593. The Ford court went on to note that, while an inquiry as to “[w]hether a practice is religiously mandated is surely relevant to resolving whether a particular

burden is substantial, . . . [n]either the Supreme Court nor we, however, have ever held that a burdened practice must be mandated in order to sustain a prisoner’s free exercise claim.” Id. (citation omitted). The relevant question here is thus whether separate Friday Jumah services for Shi’ites “is considered central or important to [plaintiffs’] practice of Islam.” Id. at 593-94.
Defendants assert that they are entitled to summary judgment on this claim for several reasons. First, defendants claim that the denial of a separate Shi’ite Jumah service does not unconstitutionally burden plaintiffs’ religious beliefs. (State Defs.’ Mem. at 2728; LoConte Mem. at 27-31.) State Defendants argue that plaintiffs are permitted to attend a congregate, generic Jumah service along with Sunni inmates, and that some Shi’ite prisoners do in fact attend the generic Jumah services. (State Defs.’ Mem. at 27.) State Defendants also assert that plaintiffs and their experts “concede that [Shi’ite] inmates, even if they do not attend a congregate Jumah service, can satisfy any obligatory Friday prayer requirements by praying, individually, the ‘Zohr’ prayer.” (Id. at 27; LoConte Mem. at 27-29.) In support of this argument, State Defendants cite O’Lone, in which (according to the State Defendants), the Court found that “the New Jersey correctional system did not unconstitutionally burden Muslim inmates’ religious exercise in a case in which certain inmates could not attend Jumah services at all.” (State Defs.’ Mem. at 27.) Second, LoConte argues that plaintiffs “cannot demonstrate that they can doctrinally have the ‘religious exercise’ they seek to have the defendants create for them” because seven participants are necessary for Jumah, and plaintiffs have not shown that seven Shi’ite

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Muslims of the same sect would participate. (LoConte Mem. at 26.) Finally, LoConte asserts that plaintiffs are not entitled to a spiritual advisor whose beliefs are completely “congruent” with plaintiffs’ beliefs, and that the case of Muhammad v. City of New York Department of Corrections, 904 F. Supp. 161, 189 (S.D.N.Y. 1995), stands for the proposition that the failure to employ a minister of a particular sect was not a substantial burden where the prisoner had access to a generic service, and the opportunity to meet with a spiritual advisor. (See LoConte Mem. at 30.)
The record reveals that there are disputed issues of fact with regard to whether plaintiffs’ religious beliefs are substantially burdened by (1) attendance at a Sunni-led, Sunni-dominated Friday Jumah service; and/or (2) use of the Zohr prayer as a substitute for attending Jumah services. Plaintiffs present evidence that, as practicing Shi’ites, they are required to participate in a Friday Jumah prayer service led by a Shi’ite. (See Pls.’ 56.1 ¶¶ 6, 9, 12-14; Pugh Decl. ¶¶ 11, 16, 18-21, 23-24; Chatin Decl. ¶¶ 2-5, 8-11, 18-19.) They also submit that their beliefs require a Shi’ite Jumah service separate from a service that includes Sunnis, and that a Sunni-led service does not have religious value to them. (Pls.’ 56.1 ¶¶ 2-5, 9, 15). Plaintiffs also put forth evidence that the Zohr prayer is not a feasible permanent substitute for attending Shi’ite-led Jumah services on a long-term basis. (See id. ¶ 111; Pugh Decl. ¶ 14; Chatin Decl. ¶ 6-8.) These assertions are sufficient to demonstrate disputed issues of fact regarding whether the denial of separate services constitutes a substantial burden on plaintiffs’ religious exercise. Again, in Orafan, the Second

Circuit held that summary judgment was inappropriate where the record reflected “unresolved issues of material fact relevant to the question[s] of . . . the burden that the denial of a Friday congregate prayer service placed on plaintiffs’ religious exercise. . . .” 249 Fed. Appx. at 218.
Furthermore, State Defendants’ reliance on O’Lone for the principle that denying Muslim inmates a Jumah service does not substantially burden the rights of Muslim inmates is misplaced. Indeed, the Supreme Court in O’Lone found that “Jumu’ah is commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer,” and “[t]here is no question that respondents’ sincerely held religious beliefs compelled attendance at Jumu’ah.” O’Lone, 482 U.S. at 345. The Court in O’Lone did not resolve the issue of whether the denial of O’Lone’s request to attend Jumah services substantially burdened O’Lone’s religious beliefs; rather, the Court held that the legitimate penological interests articulated by the defendants in that case were sufficient to deny plaintiffs relief under the Free Exercise Clause. Id. at 350353 (“While we in no way minimize the central importance of Jumu’ah to respondents, we are unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end.”). As such, O’Lone does not stand for the principle that the denial of separate Shi’ite services does not substantially burden plaintiffs’ beliefs, as State Defendants suggest.
LoConte’s arguments also fail. LoConte contends that plaintiffs’ expert testified that members of the various subsects within Shi’a

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Islam cannot pray together. (See LoConte Mem. at 24-25.) Thus, he argues, plaintiffs cannot establish the quorum of seven Shi’ite inmates of the same sect necessary for a valid Jumah, even if they were granted separate services. (See id. at 25-26.) However, this fact is contradicted by the plaintiffs’ assertion that they could pray validly behind a Shi’ite of any sect. (See Pls.’ Opp’n at 38-39 (citing Pugh Decl. ¶ 84-85; Chatin Decl. ¶ 74-75).) Again, summary judgment is inappropriate given the existence of these disputed facts. Additionally, LoConte’s reliance on Muhammad v. City Department of Corrections, 904 F. Supp. 161, 189 (S.D.N.Y. 1995), for the proposition that the failure to employ a minister of a particular belief was not a substantial burden (where the prisoner had access to a generic service and the opportunity to meet with a spiritual advisor), is misplaced. In that case, the court found after a bench trial that the failure to employ a Nation of Islam minister and the failure to provide separate worship services to Nation of Islam followers, did not substantially burden the plaintiff’s rights under the now-defunct Religious Freedom Restoration Act (“RFRA”). Id. at 189-91; (see also Pls.’ Opp’n at 39-40 & n.40.) Here, a trial is necessary so that, as in Muhammad, the Court can make appropriate findings of fact.
(c) Reasonably Related to Legitimate Penological Interests
Even if it were determined that DOCS’ current policy substantially burdens Shi’ite inmates’ rights by denying them a separate Jumah service, the policy nevertheless would be constitutionally permissible if it was reasonably related to legitimate penological interests. See Turner, 482 U.S. at 89; Ford,

352 F.3d at 394. As such, defendants argue that summary judgment should be granted because several legitimate penological interests — listed above in Section II.C.2. — justify the DOCS policy denying separate Jumah services to Shi’ite inmates. (See State Defs.’ Mem. at 30-31; LoConte Mem. at 3334.)
Again, the record before the Court reveals that there are disputed issues of fact relevant to defendants’ claims that legitimate penological interests justify DOCS policy, which preclude a finding of summary judgment on the Free Exercise claim. First, with regard to the purported administrative concerns inherent in DOCS having to make religious determinations (see State Defs.’ Mem. at 30-31; LoConte Mem. at 33), plaintiffs have identified valid factual issues with respect to whether the “provision of [separate] religious services to Shi’ite Muslims — one of two major sects of Islam — is ‘excessive entanglement’ when DOCS provides [separate] services to Native Americans, Nation of Islam, Rastafarians, Moorish Science Temple, and Seventh Day Adventists, among others.” (Pls.’ Opp’n at 47, 61-63 (citing to the record to show that DOCS provides services for adherents of the Nation of Islam and the Moorish Science Temple, “two comparatively new American Muslim sects,” as well as separate services for Catholics and Protestants); see also Section II.C.2.)
Second, while defendants claim that separate services constitute a security risk, plaintiffs offer sufficient evidence to demonstrate that separate services would not engender such a risk, and that combined services might in fact raise greater security

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concerns. (Pls.’ Opp’n at 43-44 (citing Pugh Decl. ¶ 91; Chatin Decl. ¶¶ 81-82; and Coleman Decl. Ex. 17 at 68, Ex. 25 at 123, 128, and Ex. 86 at 104).) Third, plaintiffs point out that if Shi’ite inmates were permitted to lead inmate-facilitated services just as Sunnis are, the financial concerns relevant to hiring new chaplains would not be implicated. (Pls.’ Opp’n at 43; Chatin Decl. ¶ 84; Pugh Decl. ¶ 90.) Finally, while Defendants assert that “space concerns” prohibit separate Shi’ite Jumah services, plaintiffs have demonstrated that there is a factual dispute as to whether sufficient space is available in DOCS facilities for separate services. (Pls.’ Opp’n at 44 (citing, inter alia, Pugh Decl. ¶ 86 and Chatin Decl. ¶¶ 77-78).); see also Salahuddin v. Coughlin, 993 F.2d 306, 309 (2d Cir. 1993) (holding that “conclusory assertion[s]” that congregate services could not be accommodated preclude summary judgment, particularly where it was suggested that congregate religious services could be held in a prison yard without the need for extra supervision).
In light of the foregoing, defendants’ motions for summary judgment on the Free Exercise Claim are denied because genuine issues of material fact remain as to “whether the DOC is able to accommodate plaintiffs’ request for a [Shi’ite]-led Friday congregate prayer service without jeopardizing legitimate penological objectives.” Orafan, 249 Fed. Appx. at 218.
E. Equal Protection
State Defendants also move for summary judgment on plaintiffs’ equal protection claim. State Defendants argue that summary judgment is appropriate, because plaintiffs

cannot and have not shown that any similarly situated group is treated more favorably than plaintiffs, and, in any event, because DOCS policies withstand rational review. (See State Defs.’ Mem. at 42-44.) Plaintiffs respond that Shi’ite inmates are treated less favorably than other Muslim and non-Muslim inmates, and that any distinctions made between the services provided to Shi’ites and those provided to other religious groups (including other sects of Islam) are not reasonably related to legitimate penological interests. (See Pls.’ Opp’n at 57-70.) For the following reasons, State Defendants’ motion is denied.
1. Legal Standard
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. Thus, under the Equal Protection Clause, “all persons similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). “The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (citing F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
The Supreme Court has specifically held that in the prison context, the Equal Protection clause does not require that “every religious sect or group within a prison — however few in number — must have identical facilities or personnel.” Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972); see also Jones v. North Carolina

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Prisoners’ Labor Union, Inc., 433 U.S. 119, 136 (1977) (“There is nothing in the Constitution which requires prison officials to treat all inmate groups alike where differentiation is necessary to avoid an imminent threat of institutional disruption or violence.”); Graham v. Mahmood, No. 05 Civ. 10071 (NRB), 2008 WL 1849167, at *14 (S.D.N.Y. Apr. 22, 2008) (citing Cruz and finding that if one group of inmates outnumbers another by two-thirds, the groups are not similarly situated).
In addition, the Second Circuit has determined that the Turner standard, although originally articulated in the context of a first amendment challenge, also applies to equal protection claims. See Benjamin v. Coughlin, 905 F.2d 571, 575 (2d Cir. 1990); Dingle v. Zon, 189 Fed. Appx. 8, 10-11 (2d Cir. 2006); Graham, 2008 WL 1849167, at *14. Thus, even if plaintiffs can demonstrate that two groups are similarly situated, disparate treatment may still be warranted if the government can demonstrate that the distinctions are “reasonably related to legitimate penological interests.” Benjamin, 905 F.2d at 574.
2. Analysis
As discussed above, in order to sustain an equal protection claim at the summary judgment stage, plaintiffs must demonstrate that plaintiffs are “similarly situated” to other prison groups, but are treated differently. The Court finds that plaintiffs have made this showing.
The evidence in the record reflects certain facts that, taken to be true, demonstrate that there were at least 200 inmates professing to

be Shi’ites at the time this motion was briefed (see State Defs.’ 56.1 ¶ 23), and that there are potentially many more (see Pls.’ 56.1 Opp’n ¶ 23). By comparison, there are approximately 247 inmates who identify themselves as adherents of Native American religions, 205 inmates who identify themselves as Seventh Day Adventists, 203 inmates who identify themselves as adherents of the Moorish Science Temple, 66 inmates who identify themselves as Greek Orthodox, and 63 inmates who identify themselves as Quakers. (See Coleman Decl. Ex. 100.) Plaintiffs contend that they are at least similarly situated to these groups. (See Pls.’ Opp’n at 64); see also Graham, 2008 WL 1849167, at *14. Plaintiffs have also proffered evidence that, taken as true, reflects that each of these groups is treated differently than Shi’ites are treated, in that each of these groups is afforded, inter alia, the opportunity to attend separate religious services, access to outside volunteer coordinators, religious classes, and/or the opportunity to celebrate holidays. (See id. at 63-65 (citing to the record).) Accordingly, the Court finds that plaintiffs have made a showing that, at the very least, there exists a genuine issue of material fact as to whether Shi’ites are similarly situated to other religious denominations and yet treated differently, in violation of the Equal Protection Clause.
Given the Court’s finding that plaintiffs have shown that they are similarly situated to other prison groups yet treated differently, summary judgment would be appropriate only if defendants could show that the distinctions made between Shi’ites and other similarly situated groups were “reasonably related to legitimate penological interests.” Benjamin, 905 F.2d at 574. However, the record

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reflects, as demonstrated above, the existence of disputed issues of fact regarding whether DOCS policies relating to the treatment of Shi’ite Muslim inmates are reasonably related to legitimate penological interests under the Turner test. See supra at Sections III.C.2., and III.D.2.(c); see also Orafan, 249 Fed. Appx. at 218. Accordingly, State Defendants’ motion for summary judgment on the equal protection claim is denied.
F. RLUIPA
Defendants next move for summary judgment on plaintiffs’ claim that defendants have violated plaintiffs’ statutory rights to free exercise of Shi’a Islam under RLUIPA. (Second Am. Compl. ¶¶ 128-130.) First, defendants assert that plaintiffs have failed to demonstrate that any defendant denied them free exercise under RLUIPA. (State Defs.’ Mem. at 25-40; LoConte Mem. at 17-39.) Second, defendants contend that summary judgment on the claim for money damages is appropriate because money damages are not available under RLUIPA. (State Defs.’ Mem. at 40; LoConte Mem. at 43-44.) Finally, LoConte asserts that RLUIPA is unconstitutional on its face and as applied to him. (LoConte Mem. at 44-50.)
Plaintiffs respond that there are disputed issues of fact that preclude summary judgment on the RLUIPA claims. Plaintiffs also contend that money damages are available under RLUIPA. For the reasons that follow, defendants’ motion for summary judgment on the RLUIPA claims is denied insofar as plaintiffs seek injunctive and/or declaratory relief. However, because monetary damages are not available under RLUIPA against individual defendants in

either their individual or official capacities, plaintiffs’ claims for monetary damages under RLUIPA are dismissed. The Court further declines to rule on the constitutionality of RLUIPA in accordance with the doctrine of constitutional avoidance.
1. Free Exercise
(a) Legal Standard
RLUIPA “prohibits the government from imposing substantial burdens on religion even where the burden results from a neutral law of general applicability.” Hankins v. Lyght, 441 F.3d 96, 111 (2d Cir. 2006). Specifically, RLUIPA states that:
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.
42 U.S.C. § 2000cc-1(a); see also Salahuddin, 467 F.3d at 273-74. Significantly, the burden on defendants pursuant to RLUIPA, which requires that the challenged action must be the “least restrictive means of furthering” a “compelling government interest,” is a much higher burden than that articulated in Turner, which required only that a burden be “reasonably related to legitimate penological interests.” 482 U.S. at 89.

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Moreover, under RLUIPA:
If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.
42 U.S.C.A. § 2000cc-2(b); see Graham, 2008 WL 1849167, at *13 (“Only if a plaintiff shows that his religious exercise has been “substantially” burdened, do the defendants need to show something more than a rational relationship between the policy at issue and a governmental interest.”); see also Salahuddin v. Perez, 216 Fed. Appx. 69, 71 (2d Cir. Feb. 2, 2007) (summary judgment is appropriate where a plaintiff fails to demonstrate the existence of a genuine issue of material fact as to whether the regulation or practice imposed a substantial burden). If the plaintiff does make a showing of a substantial burden, the defendant must then show that the practice “(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).11
11 RLUIPA was enacted following the Supreme Court’s invalidation of the Religious Freedom Restoration Act of 1993 (“RFRA”) in City of Boerne v. Flores, 521 U.S. 507 (1997), on the grounds that it exceeded Congress’s authority under the Fourteenth Amendment. See

(b) Analysis
For the reasons set forth below, defendants’ motions for summary judgment on the grounds that plaintiffs have not demonstrated a claim under RLUIPA for violation of their free exercise rights is denied. Put simply, there are disputed issues of material fact as to whether the DOCS policy at issue here is the least restrictive means of furthering a compelling government interest.
(1) Substantial Burden on Sincerely-Held Beliefs
As noted above, a plaintiff alleging a RLUIPA violation must first show that defendants substantially burdened his sincerely-held religious beliefs. See Singh, 520 F. Supp. 2d at 498. “In order to establish that a plaintiff’s exercise was substantially burdened [under RLUIPA], a plaintiff must
Marria v. Broaddus, No. 97 Civ. 8297 (NRB), 2003 WL 21782633, at *12 (S.D.N.Y. July 31, 2003); Fluellen v. Goord, No. 06 Civ. 602E (HKS), 2007 WL 4560597, at *5 (W.D.N.Y. Mar. 12, 2007) (“RLUIPA corrected the constitutional infirmity of RFRA by invoking federal authority under the Spending Clauses to reach any program or activity that receives federal financial assistance, thereby encompassing every state prison.”) (citations omitted). The statute represents a renewed effort by Congress in the wake of City of Boerne to impose a “strict scrutiny” test in cases in which free exercise of religion is substantially burdened. See Madison v. Riter, 240 F. Supp. 2d 566, 568-70 (W.D.Va. 2003). Thus, Congress, in enacting both the RFRA and RLUIPA, sought to restore the “compelling interest/least restrictive means” standard that was previously enunciated by the Supreme Court in Sherbert v. Verner, 374 U.S. 398 (1963) but later abandoned in Employment Division v. Smith, 494 U.S. 872 (1990). See Muhammad v. City of New York Dep’t of Corr., 904 F. Supp. 161, 187 (S.D.N.Y. 1995).

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demonstrate that the government’s action pressures him to commit an act forbidden by his religion or prevents him from engaging in conduct or having a religious experience mandated by his faith.” Graham, 2008 WL 1849167, at *14 (quoting Muhammad, 904 F. Supp. at 189). The interference “must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine.” Id. However, “while mere inconvenience to the adherent is insufficient to establish a substantial burden, demonstrating a substantial burden is not an onerous task for the plaintiff.” Singh v. Goord, 520 F. Supp. 2d 487, 498 (S.D.N.Y. 2007) (internal citations and quotation marks omitted).
Defendants contend that plaintiffs cannot establish that they have been substantially burdened by the lack of separate Shi’ite services, because they can “practicably pray, they can attend religious classes for [Shi’ite] inmates, and they can have access to literature and participate in various holidays.” (State Defs.’ Mem. at 37.)
The Court is unpersuaded that summary judgment is appropriate. As discussed supra at Section III.D.2.(b), plaintiffs have demonstrated that there are disputed issues of fact precluding summary judgment on the issue of whether the denial of separate Shi’ite services substantially burdens their religious exercise. See also Orafan, 249 Fed. Appx. at 218. Because summary judgment is proper only where there are no genuine issues of material fact, summary judgment on the

substantial burden element of RLUIPA is inappropriate.12
(2) Least Restrictive Means of Furthering a Compelling Governmental Interest
Assuming as the Court must that plaintiffs can meet the substantial burden prong of the RLUIPA test, State Defendants must then show “that imposition of the burden on [plaintiffs] (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). “Congress, in enacting RLUIPA, anticipated that Courts would give ‘due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.’” Singh, 520 F. Supp. 2d at 499 (quoting Cutter v. Wilkinson, 544 U.S. 709, 722-23 (2005)).
12 It is also worth noting that courts have found that restrictions such as those at issue in this case may constitute a substantial burden. See, e.g., Shakur v. Selsky, 391 F.3d 106, 120 (2d Cir. 2004) (finding that plaintiff demonstrated, under RLUIPA, that DOCS’ failure to allow him to attend a feast in celebration of Eid ul Fitr, a Muslim holiday, constituted a substantial burden); Koger v. Bryan, 523 F.3d 789, 798 (7th Cir. 2008) (holding that denial of a prisoner’s request for a special diet constituted a substantial burden under RLUIPA, even though the prisoner’s religion did not require the dietary restriction, but where many followers, including prisoner, chose to practice the restrictions); Murphy v. Missouri Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (finding, under RLUIPA, that a plaintiff’s religious beliefs are substantially burdened where “a prisoner’s sole opportunity for group worship arises under the guidance of someone whose beliefs are significantly different from his own”).

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However, “prison officials cannot simply use the words ‘security’ and ‘safety,’ and expect that their conduct will be permissible.” Id. (citing Jolly v. Coughlin, 76 F.3d 468, 479 (2d Cir. 1996)).
The Court has already found that there are disputed issues of fact relating to whether DOCS “is able to accommodate plaintiffs’ request for a [Shi’ite]-led Friday congregate prayer service without jeopardizing legitimate penological objectives.” Orafan, 249 Fed. Appx. at 218; see supra at Sections III.C.2., and III.D.2.(c). Thus, even if Defendants could demonstrate that DOCS policies, including the Protocol, are “in furtherance of a compelling governmental interest,” summary judgment is inappropriate where, as here, there are issues of fact remaining as to whether the Protocol and other policies constitute the “least restrictive means” of furthering that interest. Accordingly, Defendants’ motions for summary judgment on the RLUIPA claim are denied.
2. Availability of Money Damages
Defendants next assert that RLUIPA does not create a cause of action for money damages against defendants in their official capacities or individual capacities. As such, Defendants argue that summary judgment on the claims for money damages against defendants is appropriate. (See State Defs.’ Mem. at 40; LoConte Mem. at 43.) Plaintiffs respond that RLUIPA allows plaintiffs to recover money damages under the plain language of the statute. (Pls.’ Opp’n at 8586.) For the reasons that follow, the Court finds that plaintiffs are not entitled to money damages under RLUIPA.

The question of whether plaintiffs may recover monetary damages under RLUIPA is unsettled in this and other circuits. See Bock v. Gold, No. 05 Civ. 151 (JGM) (JJN), 2008 WL 345890, at *7 (D. Vt. Feb. 7, 2008); see also Smith v. Allen, 502 F.3d 1255, 1270 (11th Cir. 2007) (“To put it mildly, ‘there is a division of authority’ on this question.”); Marsh v. Granholm, No. 05 Civ. 134 (RHB) (TPG), 2006 WL 2439760, at *2 (W.D. Mich. Aug. 22, 2006) (collecting cases recognizing dispute over whether monetary damages are available under RLUIPA); Daker v. Ferrero, No. 03 Civ. 2481, 2006 WL 346440, at *8 (N.D. Ga. Feb. 13, 2006) (collecting cases); Farrow v. Stanley, No. 02 Civ. 567 (PB), 2005 WL 2671541, at *11 n.13 (D.N.H. Oct. 20, 2005) (noting that “[t]here is substantial uncertainty, however, as to whether this language even provides a right to money damages.”). Given the unsettled nature of this question, and the different rationales employed by courts that have addressed it, the Court will analyze each in turn.
(a) Individual Capacity
Defendants cite Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007), for the proposition that “RLUIPA imposed restrictions on the recipients of federal funds, and as a such [sic], could not have targeted individual defendants who are not the recipients of such funds.” (State Defs.’ Supp. Mem. at 6; see also LoConte Supp. Mem. at 4.) In Smith, the Eleventh Circuit found that claims against defendants in their individual capacities could not lie under RLUIPA because “such action would be incongruent with the reach of Congress’ Spending Power . . . .” 502 F.3d at 1275. The Eleventh Circuit reasoned that, because RLUIPA was enacted

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under the Spending Clause of the Constitution, Congress could “award federal funds to state prison institutions who, as a condition of receiving federal funds, agree not to impose ‘a substantial burden on the religious exercise’ of its prisoners.” Id. at 1274 (quoting 42 U.S.C. § 2000cc-1(a)). However, the court found that individual defendants were not, at least in their individual capacities, “contracting” parties who received federal funds. Smith, 502 F.3d at 1275. Because of this, the court found that “a construction of RLUIPA providing for individual liability [for monetary damages] raises substantial constitutional concerns” and “would be incongruent with the reach of Congress’ spending power.” Id. The court also found that because RLUIPA did not permit the recovery of money damages against defendants in their individual capacities, the court “need not address the secondary question of whether the defendantappellees would be entitled to a defense of sovereign immunity.” Id. at 1275 n.11 (citation omitted).
The Court finds the reasoning in Smith to be convincing, and concludes that RLUIPA does not provide for the availability of money damages against defendants in their individual capacities. In so doing, the Court joins the other district courts, some in recent months, that have recently held such damages to be unavailable. See, e.g., Sisney v. Reisch, 533 F. Supp. 2d 952, 968-73 (D.S.D. 2008) (citing Smith and holding that RLUIPA does not permit a private action for monetary damages against individual defendants); Sharp v. Johnson, No. 00 Civ. 2156 (ARH), 2008 WL 941686, at *19 (W.D. Pa. Apr. 7, 2008); Gibb v. Crain, No. 04 Civ. 81, 2008 WL 744249, at *3 (E.D. Tex. Mar. 19, 2008) (same); Malik v.

Ozmint, No. 07 Civ. 387 (RBH) (BHH), 2008 WL 701517, at *12 (D.S.C. Feb. 13, 2008); Bock, 2008 WL 345890, at *7 (RLUIPA does not allow for monetary damages against state employees in any capacity); Daker, 475 F. Supp. 2d at 1334; Boles v. Neet, 402 F. Supp. 2d 1237, 1241 (D. Colo. 2005) (“[W]hile the statute permits ‘appropriate relief against a government’ it does not appear that the statute permits a claim for damages.”). As noted at oral argument, the cases cited by plaintiffs engage in little or no analysis regarding the availability of individual capacity money damages, and are thus unpersuasive authority. See Orafan v. Goord, No. 00 Civ. 2022 (LEK) (RFT), 2003 WL 21972735, at *9 (N.D.N.Y. Aug. 11, 2003); Bowman v. Pa. Dep’t of Corrs., No. 04 Civ. 2176 (JFM), 2005 WL 2234647, at *7 (M.D. Pa. Sept. 14, 2005); Jama v. United States Immigration and Naturalization Serv., 343 F. Supp. 2d 338, 375 n.27 (D.N.J. 2004) (analyzing the availability of money damages under RFRA, and noting, in dicta, that “several courts have interpreted language in RLUIPA (that is nearly identical to the language of § 2000bb1(c)) to allow for suits against individual defendants for damages”).
Accordingly, the Court finds that damages are not available against defendants in their individual capacities under RLUIPA.
(b) Official Capacity
Courts are also split on the issue of whether monetary damages are available under RLUIPA against an individual in his or her official capacity. Compare Smith, 502 F.3d at 1275 (allowing claims for monetary damages to proceed against defendants in their official capacities); Sisney, 533 F. Supp.

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2d at 968-73 (same); Hankins v. New York State Dep’t of Corr. Serv., No. 07 Civ. 408 (FJS) (GHL), 2008 WL 2019655, at *7 n.50 (N.D.N.Y. Mar. 10, 2008) (“It appears that, after the enactment of RLUIPA in 2000, states could accept federal funds for prison activities or programs only on the condition that they comply with RLUIPA, which effectively constituted a waiver of their sovereign immunity under the Eleventh Amendment.”); with Lovelace v. Lee, 472 F.3d 174, 193-94 (4th Cir. 2006) (holding that money damages are not available under RLUIPA against defendants sued in their official capacity); Madison v. Commonwealth of Virginia, 474 F.3d 118, 122-23 (4th Cir. 2006) (same); Bock, 2008 WL 345890, at *6 (“RLUIPA does not create a claim for monetary damages against the defendants in their official capacities.”); Agrawal v. Briley, No. 02 Civ. 6807 (RRP), 2006 WL 3523750, at *9-13 (N.D. Ill. Dec. 6, 2006) (same). Once again, the question is unresolved in this Circuit. The operative issue is whether New York, in accepting federal funds pursuant to RLUIPA, has waived sovereign immunity as to money damages, given RLUIPA’s provision authorizing “appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a). The Court finds that it has not.
In Lovelace v. Lee, the Fourth Circuit held that, based on Madison v. Commonwealth of Virginia, 474 F.3d 118 (4th Cir. 2006), an opinion issued the same day, monetary damages are not available against defendants in their official capacities, because to hold otherwise would violate the State’s sovereign immunity under the Eleventh Amendment. 472 F.3d at 193-94. The court in Madison held that the state of Virginia had not waived its Eleventh Amendment immunity because

the language in RLUIPA allowing for “appropriate relief against a government” “[fell] short of the unequivocal textual expression necessary to waive State immunity from suits for damages.” Madison, 474 F.3d at 131-32. The court in Madison also cited Webman v. Federal Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006), wherein the D.C. Circuit held that the RFRA’s identical “appropriate relief” provision was insufficient to waive federal sovereign immunity for damages suits. Id. at 132; see also Jama, 343 F. Supp. 2d at 373; Commack Self-Service Kosher Meats Inc. v. New York, 954 F. Supp. 65, 69 (E.D.N.Y. 1997); Keen v. Noble, No. 04 Civ. 5645 (AWI), 2007 WL 2789561, at *8 (E.D. Cal. Sept. 20, 2007); Presley v. Edwards, No. 04 Civ. 729 (WKW), 2007 WL 174153, at *13 (M.D. Ala. Jan. 19, 2007).
However, in Smith v. Allen, 502 F.3d 1255 (11th Cir. 2007), the Eleventh Circuit came to the opposite conclusion. In that case, the court found that “[t]he Supreme Court has instructed that, where Congress had not given any guidance or clear indication of its purpose with respect to remedies, federal courts should presume the availability of all appropriate remedies.” Smith, 502 F.3d at 1270 (citing Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 68-69 (1992) (citations omitted)). The court reasoned that
In Franklin, the issue before the Court was what types of remedies were available in a private right of action for sex discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”). Although the statute was silent as to what remedies were available, the court stated that it was appropriate for

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a court to “presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise.” 503 U.S. at 66, 112 S.Ct. at 1032. Thus, absent any intent to the contrary reflected in the statute, the Court instructed that the presumption should be in favor of all available relief — both injunctive and monetary. Id. at 73, 112 S.Ct. at 1036.
Id. at 1270. The court went on to address the sovereign immunity issue, finding that it had already previously held that “section 3 of RLUIPA effectuated a clear waiver of the state’s sovereign immunity under the Eleventh Amendment” in Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004). Id. at 1276. In Benning, the court found “that RLUIPA’s statutory language, conditioning the receipt of federal funds on adherence to the statute and providing that a plaintiff may seek ‘appropriate relief’ when the statute is violated, made clear that ‘by accepting federal funds, [the state] waived its immunity under RLUIPA,’ and found that ‘Congress unambiguously required states to waive their sovereign immunity from suits filed by prisoners to enforce RLUIPA.’” Id. at 1276 (citing Benning, 391 F.3d at 1305-06).
The Court finds that the reasoning of Madison and Webman is more persuasive than that of Smith on this issue, and agrees that “RLUIPA’s ‘appropriate relief against a government’ language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages.” Madison, 474 F.3d at 131-32. “To sustain a claim that the [g]overnment is liable for awards of monetary damages, the

waiver of sovereign immunity must extend unambiguously to such monetary claims.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citing United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992)); Close v. State of N.Y., 125 F.3d 31, 39 (2d Cir. 1997) (“[W]e refuse to deny the States their Eleventh Amendment sovereign immunity unless: (1) Congress evinced a clear and unequivocal intent to hold the States liable in federal court; and then (2) a state voluntarily engaged in that particular activity.”).
Here, the term “appropriate relief against a government” makes no mention of compensatory or other damages, and thus is insufficient to provide the unambiguous waiver necessary for a finding that New York, by accepting federal funds, waived its right to sovereign immunity on claims for money damages under RLUIPA. See, e.g., Bock, 2008 WL 345890, at *6 (“Unlike 42 U.S.C. § 1983 which explicitly creates ‘an action at law,’ RLUIPA only creates an action for ‘appropriate relief’ which is at best an ambiguous extension to monetary claims. Therefore, RLUIPA does not create a claim for monetary damages against the defendants in their official capacities.”); Agrawal, 2006 WL 3523750, at *9 (“Even if RLUIPA were construed to effect a waiver of state sovereign immunity as to certain kinds of claims, the court agrees with the D.C. Circuit in Webman and the district court in Limbaugh [v. Thompson, No. 93 Civ. 1404 (WHA), 2006 WL 2642388 (M.D. Ala. Sept. 14, 2006)] that the term ‘appropriate relief’ is too ambiguous to extend that waiver of immunity to cover claims for monetary damages.”).
Accordingly, defendants’ motions for summary judgment on plaintiff’s RLUIPA

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claim, insofar as the claim is for money damages against individuals in their individual or official capacities, is granted.
3. Constitutionality of RLUIPA
Alternatively, defendant LoConte argues that RLUIPA is unconstitutional on its face, and as applied to him, because it exceeds Congress’s power to enact legislation under the Commerce Clause and the Spending Clause, and is barred by the Tenth Amendment. (See LoConte Mem. at 44-50.) The United States, intervenor in this case, contends that RLUIPA is constitutional, and that in any event, the doctrine of constitutional avoidance “might obviate the need to consider RLUIPA’s constitutionality.” (Govt.’s Mem. at 7-8.) For the reasons that follow, the Court declines to rule on the constitutionality of RLUIPA under the Spending Clause, given that the Court has already granted summary judgment in favor of LoConte on plaintiffs’ RLUIPA claim.
At the outset, the Court notes that the Second Circuit recently held in Westchester Day School that “where the relevant jurisdictional element is satisfied, RLUIPA constitutes a valid exercise of congressional power under the Commerce Clause.” 504 F.3d at 354. The court also held that RLUIPA does not violate the Tenth Amendment. See id. at 354-55. Therefore, LoConte’s only remaining facial challenge is his argument that RLUIPA is unconstitutional in that it exceeds Congress’s authority under the Spending Clause.
The doctrine of constitutional avoidance states that if a case can be decided on other than constitutional grounds, the court should

avoid reaching the constitutional issue. Slack v. McDaniel, 529 U.S. 473, 485 (2000) (citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936)). This rule, known also as the Ashwander rule, finds its origins in the Ashwander case, in which Justice Brandeis observed:
The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
Ashwander, 297 U.S. at 347 (Brandeis, J., concurring).
Here, the Court declines to decide the constitutional question, given that defendant LoConte was the only defendant to raise the argument, and the Court has already granted LoConte’s motion for summary judgment on the RLUIPA claim on the grounds that money damages, the only remedy sought against LoConte under RLUIPA, are unavailable.
G. Qualified Immunity
Defendants next contend that qualified immunity shields them from money damages based on plaintiffs’ § 1983 claims because their conduct did not violate clearly established rights. (State Defs.’ Mem. at 4550; LoConte Mem. at 40-42.) Plaintiffs respond that defendants violated clearly

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established rights and their actions were not objectively reasonable. (Pls.’ Opp’n at 7683.) For the reasons that follow, the Court finds that defendants are not entitled to qualified immunity at this stage of the proceedings.
1. Legal Standard
Section 1983 permits a plaintiff to seek money damages from government officials who have violated the plaintiff’s constitutional rights. See Wilson v. Layne, 526 U.S. 603, 609 (1999). However, “government officials performing discretionary functions generally are granted a qualified immunity and are ‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004); Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003).
A defendant will thus not be liable for damages “if he did not violate clearly established law or if it was objectively reasonable for him to believe that he was not violating clearly established law.” Luna, 356 F.3d at 490 (citing Anderson, 317 F.3d at 197 and Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001)). Courts should look “to both ‘the clarity of the law establishing the right allegedly violated’ as well as ‘whether a reasonable person, acting under the circumstances confronting a defendant, would have understood’ that his actions were unlawful.” Hanrahan v. Doling, 331 F.3d 93, 98 (2d Cir. 2003) (quoting Vega v. Miller, 273 F.3d 460, 466 (2d Cir. 2001));

see also Ford, 352 F.3d at 596-97. “A right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) ‘a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful.’” Anderson, 317 F.3d at 197 (quoting Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)); Nicholas v. Miller, 189 F.3d 191, 195 (2d Cir. 1999). “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in the defendant’s position should know about the constitutionality of the conduct.” McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 278 (2d Cir. 1999); see also Nicholas, 189 F.3d at 195 (“‘[T]he inquiry is not whether plaintiff has alleged a violation of an abstract legal standard, but whether under the particular circumstances alleged, defendants could have reasonably believed that they did not violate plaintiff’s constitutional rights.’”) (quoting Gittens v. Lefevre, 891 F.2d 38, 42 (2d Cir. 1989)).
2. Analysis
The Court finds that the individual defendants are not entitled to qualified immunity at the summary judgment stage because plaintiffs have alleged facts sufficient to demonstrate the denial of a clearly established right, and because genuine issues of material fact exist as to whether the denial of plaintiffs’ right to a reasonable opportunity to worship was justified by legitimate penological interests.
Pursuant to Wilson v. Layne and other precedent, the first question is whether plaintiffs have established that the actions of

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the individual defendants violated “clearly established law.” 526 U.S. at 609. Plaintiffs cite several cases in support of the established principles that prisoners are to be afforded “reasonable opportunities to worship,”13 that the Jumah is to be performed congregationally,14 and that an inmate is denied the opportunity to participate in group worship where the only option is “‘under the guidance of someone whose beliefs are different from or obnoxious to his.’”15
Certain of the cases cited by plaintiffs do provide that plaintiffs are entitled to a reasonable opportunity to worship. See Cruz, 405 U.S. at 322 n.2; Young, 866 F.2d at 570; see also Ford, 352 F.3d at 597 (“[W]e also have found it well established that a prisoner’s free exercise right to participate in religious services is not extinguished by his or her confinement in special housing or keeplock . . . .”) (citing Salahuddin, 993 F.2d at 308). While plaintiffs have cited no cases for the proposition that Shi’ites are entitled to separate religious services, recent Second Circuit case law reflects that no such specific pronouncement is necessary for a finding that a clearly established right existed. See Ford, 352 F.3d at 597 (“[C]ourts need not have ruled in favor of a prisoner under precisely the same factual circumstance in order for the right to be clearly established.”) (citing Anderson v. Creighton, 483 U.S. 635, 640
13 See Pls.’ Opp’n at 76-77 (citing Cruz, 405 U.S. at 322 n.2, Young v. Coughlin, 866 F.2d 567, 570 (2d Cir. 1989), and Griffin v. Coughlin, 743 F. Supp. 1006, 1029 (N.D.N.Y. 1990)).
14 See id. (citing Salahuddin, 993 F.2d at 307).
15 See id. (quoting Muhammad, 904 F. Supp. at 191 n.39 and citing Marria, 200 F. Supp. 2d at 296).

(1987)); Salahuddin, 467 F.3d at 275-76. Specifically, in Salahuddin v. Goord, 467 F.3d 263, 275-76 (2006), the plaintiff brought an action against prison officials claiming, inter alia, that a joint Ramadan service for Shi’ite and Sunni prisoners violated his rights under the Free Exercise Clause of the First Amendment, as well as RLUIPA. The court first found that the plaintiff had presented facts which demonstrated a violation of plaintiff’s rights under RLUIPA and the First Amendment, and that unresolved issues of fact precluded summary judgment. Id. at 275. The court went on to reject defendants qualified immunity argument, noting that “because it was clearly established at the time of the alleged violations that prison officials may not substantially burden inmates’ right to religious exercise without some justification and because we cannot say as a matter of law that it was objectively reasonable for any defendant to believe that the facts as they stand on summary judgment showed no violation of a clearly established right.” Id. at 275-76.
Although this Court questions whether the “clearly established right” recognized in Salahuddin — that “prison officials may not substantially burden inmates’ right to religious exercise without some justification,” 467 F.3d at 275-76 — meets the requirements of Anderson v. Recore, 317 F.3d at 197 (2d Cir. 2003), described above, the Court is bound by that precedent. Accordingly, consistent with Salahuddin, the Court finds that plaintiffs have put forth facts sufficient to demonstrate that plaintiffs’ right to a reasonable opportunity to worship — by way of separate Jumah services for Shi’ites and Sunnis — was clearly established.

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Assuming the violation of a clearly established right, defendants nevertheless argue that “it was objectively reasonable for [defendants] to believe that [they were] not violating clearly established law.” Luna, 356 F.3d at 490. The Second Circuit has held that qualified immunity is not appropriate at the summary judgment stage where genuine issues of material fact exist as to whether defendants had legitimate penological justifications for denying plaintiffs certain opportunities for religious exercise. See Salahuddin, 467 F.3d at 276 (“[W]e cannot say as a matter of law that it was objectively reasonable for any defendant to believe that the facts as they stand on summary judgment showed no violation of a clearly established right. Accordingly, these issues remain to be resolved in further proceedings.”); Ford, 352 F.3d at 597 (“[I]nasmuch as defendants premise their qualified immunity defense on their reasonable penological interest . . . we find it premature to address the issue.”); see also Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999) (“Summary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness.”); Weyant v. Okst, 101 F.3d 845, 857-58 (2d Cir. 1996); Beckles v. Bennett, No. 05 Civ. 2000 (JSR), 2008 WL 821827, at *26 (S.D.N.Y. Mar. 26, 2008); Woods v. Goord, No. 01 Civ. 3255 (SAS), 2002 WL 731691, at *10 (S.D.N.Y. Apr. 23, 2002). The Court is bound by this precedent, and concludes that issues of fact surrounding the reasonableness of defendants’ beliefs that burdening plaintiffs’ religious practice was justified by legitimate penological interests preclude a grant of qualified immunity to defendants. (See supra at Sections II.C.2, II.D.2.(c), and II.E.2.)

H. Personal Involvement
As an alternative to their qualified immunity argument, State Defendants also assert that plaintiffs have failed to establish the personal involvement of individual defendants other than Goord in policy decisions, and that an award of damages under § 1983 is therefore inappropriate. (See State Defs.’ Mem. at 44.) Plaintiffs respond that all defendants were personally involved in the violations. (Pls.’ Opp’n at 83-85.) The Court agrees, and finds that plaintiffs have adequately established personal involvement with respect to each defendant.
1. Legal Standard
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991). The Second Circuit has concluded that the following levels of involvement are sufficient to constitute “personal involvement:”
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the

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rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); see also Moffitt, 950 F.2d at 886; Williams v. Smith, 781 F.2d 319, 32324 (2d Cir. 1986). Significantly, supervisory officials may not be held liable merely because they held a position of authority, absent evidence that they had some personal involvement pursuant to the requirements above. See Wright, 21 F.3d at 501.
2. Analysis
Viewing the evidence in the light most favorable to plaintiffs as the Court must on a motion for summary judgment, the Court finds that plaintiffs have proffered evidence sufficient to show that all defendants were personally involved in the deprivation of plaintiffs’ rights.
(a) Defendant Goord
Plaintiffs have proffered evidence to show that Commissioner Goord “created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom” under Colon. 58 F.3d at 873. By his own admission, Goord, as the Commissioner of DOCS, acknowledges that he is “ultimately responsible for everything,” including “responsibility for determining what religious programs inmates should have.” (Coleman Decl. Ex. 57 at 34.) Indeed, State Defendants appear to concede that Goord “has ultimate policymaking authority,” although they deny, without citation to any evidence,

that Goord “intentionally discriminated against plaintiffs.” (State Defs.’ Mem. at 44.) There is no dispute that Goord approved the decision to implement the Protocol in the fall of 2001, and he was clearly aware that DOCS policy denied Shi’ite inmates separate services and provided for only one congregate Jumah service for both Sunnis and Shi’ites. (See Coleman Decl. Ex. 57 at 111-15.) Accordingly, Goord “allowed the continuance” of this policy, and was thus personally involved in the alleged violations.
(b) Defendant LoConte
Plaintiffs have also put forth evidence that LoConte was personally involved in the alleged violations. Although they note that LoConte was not “the ultimate authority,” State Defendants acknowledge that LoConte was personally involved in the decision to deny plaintiffs a separate Jumah service because he made “certain contributions” to “formulation of policy.” (See State Defs.’ 56.1 ¶ 124.). Indeed, the record before the Court reveals that LoConte authored and published the Protocol, was DOCS’ so-called “expert” on the development of the Protocol, and directed DOCS’ staff that “there is no reason to provide separate accommodations for Shi’ite Muslims.” (See Pls.’ Opp’n at 84 n.73 (citations omitted).) Accordingly, plaintiffs have sufficiently demonstrated LoConte’s personal involvement in the alleged constitutional violations.
(c) Defendant Leonard
Plaintiffs have also shown personal involvement on the part of defendant Leonard. Again, State defendants admit that Leonard was personally involved in the denial

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of separate services to Shi’ites because he made “certain contributions” to “formulation of policy,” despite the fact that he was not “the ultimate authority.” (See State Defs.’ 56.1 ¶ 124.). Additionally, plaintiffs have shown that Leonard, as LoConte’s successor as Director of Ministerial and Family Services, failed to reevaluate the Protocol after he took over from LoConte. (See Coleman Decl. Ex. 61 (Leonard Dep. Tr.) at 94-96, 104.) Accordingly, plaintiffs have shown that Leonard “allowed the continuance,” Colon, 58 F.3d 865, of the Protocol, which denied Shi’ite inmates separate services. Accordingly, plaintiffs have sufficiently demonstrated Leonard’s personal involvement in the alleged constitutional violations.
(d) Defendant Nuttal
Plaintiffs have also put forth evidence to show that Nuttal, the Deputy Commissioner for Program Services, was involved in ongoing discussions about policy regarding separate Shi’ite religious services, as well as the legitimate penological interests that were served in denying Shi’ites separate services. (See Coleman Decl. Ex. 56 (Nuttal Dep. Tr.) at 50-52.) Ex. 57 at 82-83.) Nuttal was also involved in the creation and development of the Protocol and the decision that Shi’ites and Sunnis could worship together. (See Coleman Decl. Ex. 56 (Nuttal Dep. Tr.) at 34-36; State Defs.’ 56.1 ¶ 124.) Accordingly, plaintiffs have presented sufficient evidence to demonstrate Nuttal’s personal involvement.
(e) Defendant Headley
Plaintiffs have also presented evidence sufficient to show at this stage that defendant

Headley, Former Deputy Commissioner for Program Services, was personally involved in the alleged constitutional violations because he made contributions to the policy underlying the Protocol. (See State Defs.’ 56.1 ¶ 124; Coleman Decl. Ex. 21 at 233.) While Headley’s mere distribution of the Protocol (see Coleman Decl. Exs. 6, 50) would perhaps not be enough to establish his personal involvement, the Court finds that there are genuine issues of material fact as to the extent of Headley’s involvement in the development of the Protocol, and that plaintiffs have put forth evidence indicating that he had at least some involvement in its implementation. (See State Defs.’ 56.1 ¶ 124; Coleman Decl. Ex. 21 at 233.)
(f) Defendant Umar
Although Umar has not himself moved for summary judgment, nor officially joined in defendants’ motions, the Court finds that plaintiffs have also presented evidence that Umar, as former Ministerial Program Coordinator for Islamic Affairs both “participated directly in the alleged constitutional violation,” and “exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.” Colon, 58 F.3d at 873. Certain defendants testified that Umar was consulted on issues relating to Muslim inmates’ requests, including whether Shi’ites should have separate services. (See Coleman Decl. Ex. 21 (LoConte Dep. Tr.) at 118-20; Ex. 57 (Goord Dep. Tr.) at 86-87; Ex. 84 (Harris Dep. Tr.) at 27-28, 35.) Plaintiffs also point to evidence that Umar espoused views — in one case directly to inmates and in another to LoConte — that Shi’ites were “deviant,” “heretics,” and not accepted as a

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valid Islamic movement. (Pugh Decl. ¶ 31; Coleman Decl. Ex. 21 (LoConte Dep. Tr.) at 118-19, 193-94; see also Ex. 105 (Letter from Umar to Harris informing Harris that “the only legitimate name of the Muslim religion is ‘Islam’” and directing Harris to remove certain religious designation codes.) Chatin testified that Umar, when asked by Shi’ite inmates at Elmira Correctional Facility why Shi’ites could not have separate accommodations, stated that “there is no such thing as a Shi’ite” and “Shi’ites don’t exist.” (Chatin Decl. ¶ 30.) This evidence is enough to create a genuine issue of material fact with respect to whether Umar was personally involved in the violations, namely, whether he participated in the creation of a policy that denied plaintiffs a separate Jumah service.
(g) Defendants Mazzuca, Perez, and Harris
Plaintiffs have also shown personal involvement on the part of defendants Mazzuca, Perez, and Harris.
Courts in this Circuit have generally held that the second Colon factor requires more than the mere affirmation of a grievance denial and subsequent inaction. See, e.g., Warren v. Goord, 476 F. Supp. 2d 407, 413 (S.D.N.Y. 2007) (finding no personal involvement where plaintiff alleged only that the defendant denied his grievance); Collins v. Goord, 438 F. Supp. 2d 399, 420 (S.D.N.Y. 2006) (same); Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002). “Personal involvement will be found, however, where a supervisory official receives and acts on a prisoner’s grievance or otherwise reviews and responds to a prisoner’s complaint.” Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002); see also Colon, 58 F.3d at

873; Islam v. Fischer, No. 07 Civ. 3225 (PKC), 2008 WL 110244, at *3 (S.D.N.Y. Jan. 9, 2008); Williams v. Fisher, No. 02 Civ. 4558 (LMM), 2003 WL 22170610, at *10 (S.D.N.Y. Sept.18, 2003); Walker v. Pataro, No. 99 Civ. 4607 (GBD) (AJP), 2002 WL 664040, at *13 (S.D.N.Y. Apr. 23, 2002); Van Pelt v. Finn, No. 92 Civ. 2977 (MBM), 1993 WL 465297, at *6 (S.D.N.Y. Nov.12, 1993).
The record reflects, inter alia, that on January 7, 2000, Fishkill Superintendent Mazzuca rendered a decision on the plaintiffs’ consolidated grievance, stating that “[t]he Sh’ia Muslim inmates have been told by Imam Muhammad that until we get clarification from Counsel’s Office in Albany regarding a court case pending, the Sh’ia Muslims are to be afforded the same type service as all Islamic inmates.” (Pugh Decl. Ex. G at D0841.) On January 9, 2001, Mazzuca also ruled on another grievance from Chatin, stating that “the facility will provide services for Shia’ Muslim inmates as soon as we receive direction from Central Office.” (See Coleman Decl. Ex. 78 at D0002.) The record also shows that defendant Perez, former Deputy Superintendent for Program Services at Fishkill, conducted an investigation into the claims in plaintiffs’ grievances and made recommendations (see, e.g., Chatin Decl. ¶ 39 & Ex. B at D0850); indeed, Mazzuca’s January 7, 2000 decision on the consolidated grievance is cc’d to defendant Perez (Pugh Decl. Ex. G at D0841). Finally, evidence in the record demonstrates that Harris, Deputy Superintendent of Programs at Fishkill, was made aware of plaintiffs’ complaints regarding the religious accommodations being provided to Shi’ite inmates. (See e.g., Chatin Decl. ¶¶ 41-42 & Exs. F, G.) Harris

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responded to Chatin on at least one occasion, telling Chatin that “[t]he Imam is charged with the responsibility of carrying out all the dictates of the religion of Islam. I am sure he will be more than happy to include you in the celebration (of Ramadan).” (Chatin Decl. Ex. F.)
The Court finds that the evidence in the record supports plaintiffs’ assertion that defendants Mazzuca, Perez, and Harris were all personally involved in the alleged constitutional violations. Plaintiffs have, at the very least, created a genuine issue of fact as to whether Mazzuca had more involvement than just affirming the denial of a grievance, or ignoring a letter sent to him from an inmate. Plaintiffs have shown that Mazzuca considered several grievances, and received several letters from inmates, including plaintiffs. Indeed, it appears that Mazzuca responded to plaintiffs, stating that “until we get clarification from Counsel’s Office in Albany regarding a court case pending, the Sh’ia Muslims are to be afforded the same type service as all Islamic inmates” (Pugh Decl. Ex. G at D0841) and that he would take affirmative action on plaintiffs’ request “as soon as [he] receive[d] direction from Central Office” (Coleman Decl. Ex. 78 at D0002). Plaintiffs have proffered similar evidence relating to defendant Harris, namely that he responded to plaintiffs’ complaints on at least one occasion. (See Chatin Decl. ¶¶ 41-42 & Exs. F, G.) Thus, plaintiffs have pointed to facts, which, taken as true, demonstrate that Mazzuca and Harris, “after being informed of the violation through a report or appeal, failed to remedy the wrong” and were thus personally involved in the alleged violations. Colon, 58 F.3d at 873. Finally, plaintiffs have also proffered evidence that defendant Perez

was the DOCS employee who conducted the investigations into plaintiffs’ grievances, and made recommendations to the Superintendent. (See Chatin Decl. ¶ 39 & Ex. B at D0850; Pugh Decl. Ex. G at D0841.) As such, the Court finds that she, “after being informed of the violation through a report or appeal, failed to remedy the wrong.” Colon, 58 F.3d at 873. Thus, plaintiffs have proffered facts sufficient to show that Perez was personally involved in the alleged deprivation of plaintiff’s rights.
Accordingly, the Court finds that viewing the facts in the light most favorable to plaintiffs, plaintiffs have proffered evidence sufficient to show that all defendants were personally involved in the alleged deprivation of plaintiffs’ rights to a reasonable opportunity to practice their Shi’ite beliefs.
I. Injunctive Relief Against Individual Defendants
State Defendants also assert that injunctive relief is not available against the individual defendants, as the individual defendants had no role in administering or enforcing the policies at issue. (See Pls.’ Mem. at 45.) For the reasons that follow, the Court finds that injunctive relief is available against certain individual defendants, and thus State Defendants’ motion for summary judgment on the issue of injunctive relief is denied.
1. Legal Standard
Section 1983 of Title 42 of the United States Code provides that:

37

Case 1:00-cv-07279-RJS Document 144 Filed 08/01/08 Page 38 of 40

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
(emphasis added). It is well settled that the Eleventh Amendment “does not preclude suits against state officers in their official capacity for prospective injunctive relief to prevent a continuing violation of federal law.” Henrietta D. v. Bloomberg, 331 F.3d 261, 287 (2d Cir. 2003) (citing Ex parte Young, 209 U.S. 123, 155-56 (1908) and Green v. Mansour, 474 U.S. 64, 68 (1985)); see also Ippolito v. Meisel, 958 F. Supp. 155, 161 (S.D.N.Y. 1997) (holding that “federal courts can enjoin state officers acting in their official capacity, as long as the injunction only governs the officer’s future conduct and a retroactive remedy is not provided”) (citing Russell v. Dunston, 896 F.2d 664, 668 (2d Cir. 1990)).
In Ex parte Young, 209 U.S. 123, 157 (1908), the Court held that “[i]n making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act . . . .” Courts in this Circuit have since applied the holding in Ex parte Young to require only that a defendant have a “connection” with the act, and not

more. See In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 372-73 (2d Cir. 2005); Davidson v. Scully, 148 F. Supp. 2d 249, 254 (S.D.N.Y. 2001) (holding that as long as the state official “has a direct connection to, or responsibility for, the alleged illegal action,” injunctive relief against that individual is permissible. (citation and internal quotation marks omitted); Reynolds v. Blumenthal, No. 04 Civ. 218 (PCD), 2006 WL 2788380, at *8 (D. Conn. Sept. 26, 2006) (citing In re Dairy Mart and finding that “personal action or involvement on the part of the named official is not required.”); Merritt Parkway Conservancy v. Mineta, No. 05 Civ. 860 (MRK), 2005 WL 2648683, at *8 (D. Conn. Oct. 14, 2005) (citing In re Dairy Mart); cf. Bray v. City of New York, 346 F. Supp. 2d 480, 492 (S.D.N.Y. 2004) (enjoining unnamed defendants, including “the City and its police officers and agents” “from seizing bicycles used by participants in the October 29, 2004 Critical Mass bike ride”).
2. Analysis
At the outset, plaintiffs acknowledge that defendants LoConte, Umar, Headley, and Perez are no longer employees of DOCS and thus may no longer be subject to a prospective injunction. (Pls.’ Opp’n at 75 n.65.) However, plaintiffs assert that injunctive relief is still appropriate against defendants Goord, Leonard, Nuttal, Mazzuca, and Harris. (Id.) State Defendants argue that the claims for injunctive relief against the individual defendants should be dismissed except for the claim against defendant Goord, because those defendants lack the authority to impose the type of injunctive relief sought. (State Defs.’ Mem. at 45.)

38

Case 1:00-cv-07279-RJS Document 144 Filed 08/01/08 Page 39 of 40

Case 1:00-cv-07279-RJS Document 144 Filed 08/01/08 Page 40 of 40

 
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Case 1:00-cv-07279-RJS Document 161 Filed 01/29/09 Page 10 of 11 Page I of 1

Michael Keane- Re: Letter to Judge Sullivan re: Pugh Settlement Status

From: "deenworks@aol.com" <deenworks@aol.com>

To:

"Lavine, Aaron 0." <Lavinea@sullcrom.com>, "mwalsh.loz4k@gdwo.net"

<mwalsh.loz4k@gdwo.net>, "Michael.Keane@oag.state.ny.us"

<Michael.Keane@oag.state.ny. us>, "sarah.light@usdoj .gov" <sarah.light@usdoj .gov>

Date: li16/2009 9:31 PM

Subject: Re: Letter to Judge Sullivan re: Pugh Settlement Status

CC:

"Howlett, Amy" <Howletta@sullcrom.com>

To all concerned: I understand that the settlement agreement discontinues all legal action against me by the complaining inmates and that I do not have to provide any damages or injunctive relief to them. Under these circumstances I agree to this settlement.

Warith-Deen Umar dated Jan. 16, 2009

Imam

-----Original Message----From: Lavine, Aaron 0. <Lavinea@sullcrom.com> To: 'Mark Walsh' <mwalsh.loz4k@gdwo.net>; deenworks@,aol.com <deenworks@aol.com>; Michael.Keane@oag.state.ny .us <Michael.Keane@oag.state.ny.us>; sarah.light@usdoj.gov <sarah.light@usdoj.gov> Cc: Howlett, Amy <Howlettar,il)sullcrom.com> Sent: Fri, 9 Jan 2009 I :42 pm Subject: Letter to Judge Sullivan re: Pugh Settlement Status

Please see atta~~ed letter, as delivered to Judge Sullivan this a£ter~oon. Thank you.

This e-mail is sen= by a law firm and contai~s informatior. that may be privileged and confidential. If you are no:: t:.he intended recipie::t, please delete the e-·mail and notify us immediately.

A Good Credit Score is 700 or Above. See yours in just 2 easy steps!

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

THOMAS PUGH, JR., CLAY CHATIN, and EDWARD HAMIL;

00-CV-7279 (GEL)

Plaintiffs,
-against-
GLENN S. GOORD, Commissioner of the New York State Department of Correctional Services; ISMAIL ABDUR RAHIM, Ministerial Program Coordinator for Islamic Affairs; WARITH DEEN UMAR, former Ministerial Program Coordinator for Islamic Affairs; MUHAMMAD SALIH AHMED, former acting Ministerial Program Coordinator for Islamic Affairs; MARK LENARD, Director of Ministerial and Family Services; JOHN R. LoCONTE, former Director of Ministerial and Family Services; FRANK HEADLEY, former Deputy Commissioner for Program Services; JOHN NUTTAL, Deputy Commissioner for Program Services and former Assistant Commissioner for Program Services; WILLIAM MAZZUCA, Superintendent of Fishkill Correctional Facility; ADA PEREZ, former Deputy Superintendent for Program Services at Fishkill Correctional Facility; JIMMIE HARRIS, Deputy Superintendent for Program Services at Fishkill Correctional Facility and former Director of Ministerial and Family Services;

SECOND AMENDED COMPLAINT
JURY TRIAL DEMANDED

Defendants. - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

SECOND AMENDED COMPLAINT Plaintiffs Thomas Pugh, Edward Hamil and Clay Chatin, who are Shiite Muslims currently or formerly in the custody of the New York State Department of Correctional Services (DOCS), by their undersigned attorney allege the following based on personal knowledge, documents and sworn deposition testimony from DOCS employees, or on information and belief:
NATURE OF THE ACTION 1. Plaintiffs bring this action to vindicate their constitutional and statutory right to the free and equal exercise of the Shiite Muslim religion, and to be free from the establishment of the Sunni Muslim religion, in prisons operated by the New York State Department of Correctional

Services (DOCS). Defendants have established Sunni Islam as the official version of Islam within DOCS and have systematically discriminated against Shiite beliefs and practices. DOCS Muslim chaplains are predominantly followers of the intolerant Wahhabi version of Sunni Islam, and believe and teach that Shiites are heretics. The only religious services made available to Muslims within DOCS are conducted according to the doctrines of Sunni Islam and have no religious value for plaintiffs. Defendants have denied and continue to deny plaintiffs sufficient access to Shiite Muslim spiritual leaders and to religious education consistent with their Shiite beliefs. Defendants have and continue to deny plaintiffs equal access to other benefits accorded to other similarly situated religious groups within DOCS.
2. Plaintiffs seek declaratory and injunctive relief and damages. JURISDICTION AND VENUE
3. The Court has jurisdiction over the federal claims in this action pursuant to 28 U.S.C. § 1343, 28 U.S.C. § 1331, and 42 U.S.C. § 2000cc-2, and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367.
4. 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 plaintiffs’ claims occurred therein.
THE PARTIES 5. Plaintiff Thomas Pugh, Jr. has been in the custody of DOCS from 1995 to the present. He is currently an inmate at the Mid-Orange Correctional Facility in Orange County, New York and has previously been an inmate at other DOCS facilities, including Fishkill Correctional Facility in Dutchess County, New York.
-2-

6. Plaintiff Clay Chatin has been in the custody of DOCS from on or about 1992 to the present. He is currently an inmate at the Mid-Orange Correctional Facility in Orange County, New York and has previously been an inmate at other DOCS facilities, including Fishkill Correctional Facility in Dutchess County, New York.
7. Plaintiff Edward Hamil was in the custody of DOCS from on or about 1997 to 2003. While incarcerated, he was housed at Otisville Correctional Facility in Orange County New York, and Fishkill Correctional Facility in Dutchess County, New York, among other locations.
8. Both Orange and Dutchess Counties are within the Southern District of New York. 9. Plaintiffs have filed administrative grievances and exhausted their administrative remedies as required by the Prison Litigation Reform Act of 1995. 10. DOCS is a New York state agency. DOCS and its programs and activities receive federal financial assistance. 11. Defendant Glenn S. Goord is the Commissioner of DOCS and is sued in his individual and official capacities. As Commissioner, Goord is responsible for, among things, the safety and security of DOCS facilities, the hiring and firing of DOCS employees, and DOCS policy about inmate religious groups. 12. Commissioner Goord controls the Central Office Review Committee (“CORC”), the panel which makes the final decisions about inmate grievances and policy issues raised in grievances. See 7 N.Y.C.R.R. § 701.6(b) (“The CORC functions on behalf of the commissioner and under his authority.”). CORC decisions have the same effect as department-wide policy directives. See id. For grievances related to Shiite Muslim issues, CORC and Goord are advised
-3-

by the DOCS Counsel, the Deputy Commissioner for Program Services, the Director of Ministerial & Family Services and the Ministerial Program Coordinator for Muslim affairs.
13. Defendant Ismail Abdur Rahim is the Ministerial Program Coordinator (“MPC”) for Islamic Affairs for DOCS. He is sued in his individual and official capacities. The MPC for Islamic Affairs is supervised by the Director of Ministerial and Family Services. The MPC for Islamic Affairs in turn hires, trains, supervises and directs the Muslim chaplains employed at the various correctional facilities. DOCS policy charges the MPC with ensuring that chaplains adhere to governing rules and laws.
14. Defendant Warith Deen Umar is the former MPC for Islamic Affairs for DOCS. He is sued in his individual capacity.
15. Defendant Muhammad S. Ahmed is the former acting MPC for Islamic Affairs for DOCS and current chaplain for DOCS. He is sued in his individual and official capacities. Like other DOCS chaplains, Ahmed is a full-time paid employee.
16. Defendant Mark Lenard is the Director of Ministerial and Family Services of DOCS. The Director is supervised by the Commissioner and the Deputy Commissioner for Program Services. The Director is the DOCS official primarily in charge of formulating and counseling about the implementation of policy regarding inmate religious groups, practices and personnel. DOCS policy gives the Director responsibility for protecting inmates’ constitutional rights to practice their religions. Mr. Lenard is sued in his individual and official capacities.
17. Defendant John LoConte is the former Director of Ministerial and Family Services. He held the position from in or about June 1999 through in or about 2002. He is sued in his individual capacity.
-4-

18. Defendant Frank Headley is the former Deputy Commissioner for Program Services. The Deputy Commissioner for Program Services reports directly to the Commissioner and oversees all policy and personnel decisions regarding religious programs and services. The Deputy Commissioner is a member of CORC. Defendant Headley is sued in his individual and official capacities.
19. Defendant Jimmie Harris is the Deputy Superintendent for Program Services at Fishkill Correctional Facility and the former Director of Ministerial and Family Services. Defendant Harris was Director of Ministerial and Family Services from in or about the mid1990s through in or about 1998. The Deputy Superintendent for Program Services is responsible for working with the Superintendent to implement and administer DOCS policy at the facility level. A facility’s chaplains report to the Deputy Superintendent for Program Services. Defendant Harris is sued in his individual and official capacities.
20. John Nuttal is the current Deputy Commissioner for Program Services and former Assistant Commissioner for Program Services. Defendant Nuttal is sued in his individual and official capacities.
21. Defendant Ada Perez is the former Deputy Superintendent for Program Services at Fishkill Correctional Facility. Defendant Perez held this position during 1998 through in or about 2002. She is sued in her individual capacity.
22. Defendant Mazzuca is the former Superintendent for Fishkill Correctional Facility. DOCS regulations give the Superintendent the task of planning, implementing and administering DOCS policy for inmates at the facility, assisted by, among others, the MPCs and the Deputy Superintendent for Program Services. He is sued in his individual capacity.
-5-

23. Defendants and non-party co-conspirators at all times relevant to this action were and are acting under color of state law.
24. It is written New York State policy as well as DOCS policy to foster the fullest possible freedom of religious exercise among inmates. See N.Y. Correction Law § 610, DOCS Directive 4202. To that end, the state employs chaplains of many different faiths to minister to inmates. DOCS works closely and jointly with its chaplains to serve the religious needs of the inmate population.
NON-PARTY CO-CONSPIRATORS 25. Although not named as defendants in this lawsuit, the following individuals are Sunni Muslim chaplains hired by Warith Deen Umar and employed by DOCS who, along with defendants Umar, Rahim and Ahmed, have conspired to establish extremist Sunni Islam as the official version of Islam within DOCS and to deny Shiites free exercise of religion and equal protection of the laws: Salahuddin Muhammad, Abdulkadir Elmi, Cyril Rashid, Mamoun ElHassan, Abdul Malik Hassan, Marshall Shamsideen, Sami Khalifah, Osameh Al-Wahaidy, Abdur Rahim Muhammad, Faheem Mahmood, Zakaria Gasmallah, Yasin Latif, Mohammad Shahani, Ibrahim Ezghair, Ibrahim Khalid El Mahdi, Imam At-Tayeb, Abdul Aleem Hassan, Abdelaziz Benadim and others unknown at this time. 26. Dr. Taha Jabir Alalwani, although not named as a defendant in this action, materially assisted the conspiracy described in paragraph 25. At the times relevant to this lawsuit, Alalwani was the president of, or otherwise controlled, the Fiqh Council of North America, the Graduate School of Islamic and Social Sciences and the International Institute of Islamic Thought, all located in Virginia.
-6-

FACTUAL ALLEGATIONS Background of Sunni and Shiite Differences 27. Plaintiffs are and were at all times relevant to this action Shiite Muslims. 28. There are more than one billion Muslims in the world of which approximately 85 percent subscribe to Sunni Islam and 15 percent to Shii Islam (“Shii Muslims,” “Shia Muslims,” “Shiite Muslims,” or “Shiites”). 29. The origin of the differences between Sunni and Shiite stems from disagreement about the succession to the Prophet Mohammed upon his death. The Muslims who became known as Sunni viewed the successor as a temporal leader to be elected from among the community. A faction among the community selected a man named Abu Bakr as the successor or Caliph. In contrast, the Muslims who became known as Shiites believed that the Prophet had designated his cousin and son-in-law Ali to be his temporal and religious successor, or Imam. Thus the dispute concerned the nature of succession as well as the identity of the successor. 30. Imam Ali was the first male convert to Islam, a constant companion of the Prophet, a just and wise counselor, an accomplished theologian and ethicist, and a valiant warrior. His two sons Hassan and Hussein were the second and third Imams of the Shiites. Sunni Muslims do not recognize their role or status. 31. Together the beliefs that Ali and his descendents have a special connection to God and were the only true successors to the Prophet Mohammed are known as the Imamate – a concept which is fundamental to Shiism but is not accepted by Sunni Muslims. 32. Besides the succession dispute, the most significant event in Shiism – the event that has come to define Shiism – is the slaughter at Karbela in 680 A.D. Karbela, a desert area
-7-

roughly 60 miles south of modern-day Baghdad, is where Sunni Muslims, acting under orders of the Sunni leader, killed Hussein, the grandson of the Prophet Muhammad and, at the time, the leader of the Shiites. The commemoration of this slaughter on the tenth day of the month of Muharram (called “Ashura”), is the holiest holiday in Shiism. This day, however, is not recognized by many Sunni Muslims as a holy day and some even see it as a joyous day, a day when heretics were killed.
33. Over the centuries, Shiites have evolved a theology, jurisprudence, liturgy, ritual practice and eschatology which are, in many respects, significantly different from those of Sunnis.
34. For instance, plaintiffs and many other Shiite Muslims believe that there were twelve true Imams and that the twelfth Imam has been hidden for centuries by God to protect him from his Sunni Muslim enemies. This twelfth Imam will someday return and redeem the righteous.
35. In his absence, religious leadership for Shiites is temporarily assumed by Shiite men who are acclaimed by the community for their great learning, piety and wisdom – called ayatollahs. By definition, a Sunni Muslim can therefore not provide binding religious guidance for Shiite Muslims such as plaintiffs.
36. Many Sunni Muslims, including current and former DOCS employees Warith Deen Umar, Salahuddin Muhammad, Abdulkadir Elmi, Marshall Shamsideen, Cyril Rashid and others, preach that Shiites are heretics and view the Shiite belief in the Imamate and Shiite invocations of Ali and other Shiite martyrs during prayers as a kind of polytheism –- the most serious sin for a Muslim.
-8-

37. Scholars have analogized the split between Sunni and Shiite to that between Protestants and Catholics.
Worship and Prayer 38. Plaintiffs believe, based on their own religious beliefs as informed by the Quran, by the teachings of widely-respected Shiite thinkers, as well as by the practices of other Shiite Muslims, that prayer is a fundamental tenet of their religion and that group or congregate prayer services on Fridays, called Jumuah, is fundamental and obligatory. 39. Shiites and Sunnis worship differently, particularly during the Jumuah. For instance, for Shiites the special Jumuah sermon, the khutba, involves commemoration and contemplation of the suffering of Ali, Hussein or some other Shiite martyr. In contrast, the Sunni khutba need not pertain to any specific subject. 40. Sunnis employed by DOCS, including Umar, Salahuddin Muhammad, Elmi, Rashid and others, have used the khutba sermon to denigrate Shiite beliefs and practices. 41. There are many more examples of differences and antagonisms between Sunnis and Shiites, including differences which holy days are observed; the manner in which holy days are observed; which prayers are considered necessary; themovements conducted during the prayer service; and the timing of the prayers. Plaintiffs believe, based on their religious beliefs as informed by the teachings of widely-respected Shiite thinkers, that the theology and religious practices of Sunni Muslims and Shiite Muslims are fundamentally different and, in important respects, antagonistic. 42. Plaintiffs cannot receive meaningful religious counseling or instruction from a teacher or prayer leader whose beliefs are different from and antagonistic to their own. Plaintiffs
-9-

cannot receive meaningful religious counseling or instruction from a teacher or prayer leader who believes that Shiites are heretics.
The Prayer Leader 43. Plaintiffs believe, based on their own religious beliefs as informed by the teachings of widely-respected Shiite thinkers and the practices of other Shiite Muslims, that the leader of their congregate prayer must be a fellow Shiite who leads the prayer correctly. For the same reasons, plaintiffs believe that their congregate prayers are invalid if the prayer leader is not Shiite and capable of correctly leading prayer. 44. Plaintiff believe , based on their own religious beliefs as informed by the teachings of widely-respected Shiite thinkers and the practices of other Shiite Muslims, that they must pray in the correct Shiite manner, or else their prayers are invalid. 45. Plaintiffs believe that their relationship with God is significantly harmed if they are not able to properly participate in Jumuah prayers. Thus defendants have for years directly and significantly harmed plaintiffs’ relationship with God.
Wahhabism within DOCS and its impact on Shiites 46. Wahhabism is an intolerant and fundamentalist version of Sunni Islam which is the official state religion of Saudi Arabia. The term Wahhabism refers to the founder of the movement, Muhammad ibn Abdal Wahhab. Wahhabism is the ideology of al-Qaeda, the Taliban, and other extremist Sunni Muslim groups. 47. Many current and former DOCS employees involved in prison ministry are Wahhabis, including Warith Deen Umar, Salahuddin Muhammad, Mamoun El-Hassan, Abdul Malik Hassan, Marshall Shamsideen, Sami Khalifah, Osameh Al-Wahaidy, Abdur Rahim
-10-

Muhammad, Yasin Latif, Imam At-Tayeb, Mohammad Shahani, Ibrahim Ezghair, Abdul Aleem Hassan and Abdelaziz Benadim. Over the years, many DOCS inmates have been indoctrinated into Wahhabism by these state employees. Wahhabis often prefer to call themselves “Salafis” or followers of “Salafia.”
48. All Muslims believe in a concept called tawhid (or tawheed) – the oneness or unity of god. But Wahhabis interpret tawhid in a specific way. They teach that any belief or action which appears to associate a human being with God violates tawhid and thus is not Islamic, but rather polytheistic. Accordingly, Wahhabis believe that the Shiite concept of the Imamate is polytheistic blasphemy. Similarly, Wahhabis believe that other Shiite practices are blasphemous, including invoking saints or martyrs during prayer, observing the birthday of the Prophet Muhammad, visiting the grave of a saint or martyr, or even depicting a human figure in art.
49. For Wahhabis, there is another element of tawhid. They believe that the complete oneness or unity of the entire Muslim community is a fundamental commandment of the religion. Thus they believe that any Muslim group which views itself as different and which wants to practice the religion differently and separately is violating fundamental Islamic law and harming the entire community as a result. This condemnation of any differences of opinion or practice has been likened to totalitarianism and fascism. See Stephen Schwartz, The Two Faces of Islam (Doubleday 2002). Shiites, in particular, are blamed by Wahhabis for allegedly dividing and undermining the community of Muslims.
50. Because of these Wahhabi religious views, DOCS employees including Umar and Salahuddin Muhammad have improperly rejected Shiite inmates’ requests for separate worship services and discriminated in other ways against Shiites.
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51. Defendants have been on notice of the antagonism that Umar and other Wahhabis bear toward Shiite for years. For instance, in April 1999, in a case brought by a Shiite inmate named Frankie Cancel against defendant Commissioner Goord, an affidavit was presented by an official at a large and well-respected Shiite mosque in Queens called the Imam Al-Khoei Islamic Center describing Wahhabi attempts to portray Islam as “a monolithic faith in the mold of one school of belief;” how all Sunnis, including Wahhabis, reject the fundamental Shiite belief in the Imamate; and Wahhabi targeting of Shiites for “persecution, discrimination and violence.”
52. In 1996, DOCS chaplain and co-conspirator Cyril Rashid testified at a deposition in Orafan v. Goord, 95-CV-318 (Northern District of New York), that he would be forbidden by his religious beliefs from assisting or allowing Shiite inmates to have separate worship services “because Allah says in the Koran that we should be – we should hold together as a community, one solid community.”
53. In May 1998, a memo written by DOCS employee and co-conspirator Salahuddin Muhammad was sent to the Director of Ministerial & Family Services and Anthony Annucci, the Counsel to DOCS, which said that Shiism is a “deviant and disruptive school of thought.”
Sunni Dominance of Religious Programs within DOCS 54. For over twenty years, defendant Warith Deen Umar was allowed by DOCS officials including Goord, Headley, Harris, Annucci, Nuttal and LoConte to control the hiring and training of all Muslim chaplains within DOCS. 55. Until on or about the end of 2000, it was official DOCS policy that all Muslim chaplains must be endorsed by the National Association of Muslim Chaplains (“NAMC”). The NAMC was founded, run and totally controlled at all times by Umar. Defendants were aware of
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this. The NAMC was at all times a Wahhabi-Sunni Muslim organization. Defendants were or should have been aware of this.
56. During Umar’s tenure, he never hired a Shiite chaplain. Instead, Umar used his authority to hire only Sunni Muslims. In particular, Umar hired many extremist Sunni Muslims who share his Wahhabi beliefs, including his religiously-based antipathy toward Shiite Muslims.
57. Umar hired and trained many persons with Wahhabi/anti-Shiite views to be Muslim chaplains for DOCS, including Salahuddin Muhammad, Abdulkadir Elmi, Cyril Rashid, Mamoun El-Hassan, Abdul Malik Hassan, Marshall Shamsideen, Sami Khalifah, Osameh AlWahaidy, Abdur Rahim Muhammad, Faheem Mahmood, Zakaria Gasmallah, Yasin Latif, Mohammad Shahani, Ibrahim Ezghair, Muhammad S. Ahmed, Ibrahim Khalid El Mahdi, Imam At-Tayeb, Abdul Aleem Hassan, and Abdelaziz Benadim.
58. These chaplains were members and/or officers of the NAMC. They met twice yearly for training, consultation and planning. The NAMC organization and these periodic meetings facilitated their conspiracy to violate the constitutional rights of Shiite inmates and establish their version of Sunni Islam as the only version of Islam within DOCS.
59. During his tenure with DOCS and even for some time afterwards, Umar constantly visited fellow Sunni chaplains at their correctional facilities and attended religious meetings and services. In addition, Sunni chaplains employed by DOCS frequently visited each other at each other’s correctional facilities and attended religious meetings and services. These visits facilitated their conspiracy to violate the constitutional rights of Shiite inmates and establish their version of Sunni Islam as the only version of Islam within DOCS.
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60. Umar hired and trained at least two chaplains -– Aminah Akbar and Sufwan El-Hadi
–- who have openly professed support for Osama bin Laden and/or the September 11 hijackers.
61. Umar himself has more than once suggested his support for the actions of the
September 11 hijackers. For instance, in or about November 2001 Umar gave a speech at
Skidmore College in which he suggested his support for the actions of the September 11
hijackers. This was reported in the newspaper.
62. Umar’s supervisors either knew, or were grossly negligent by failing to investigate
and determine that Umar was an extremist Sunni Muslim and that, as a result, he could not make
an accurate, neutral and fair decision about the needs of Shiite inmates. In addition to the facts
alleged above in paragraphs 56, 57, 60 and 61, other facts known to Umar’s supervisors sufficient
to give rise to their awareness of Umar’s unsuitability as a decision-maker regarding Shiite
inmates include:
a. Umar was investigated by the Inspector General of DOCS because of Umar’s relationship with an inmate named El Sayyid Nosair, New York Department Identification Number 92-A-0931, an extremist Sunni Muslim in prison for charges related to the murder of a Jewish leader named Meir Kahane, and later, involved in the conspiracy to bomb the World Trade Center in 1993. Nosair and his co-conspirators have been linked to Osama bin Laden and al-Qaeda.
b. On information and belief, Umar visited and ministered to another member of al-Qaeda who was incarcerated by the federal government for his role in bombing the United States embassies in Africa.
c. Umar and certain Sunni Muslim chaplains whom he hired are currently under investigation by the DOCS Inspector General and/or the Federal Bureau of Investigation.
d. Since at least 1994, Shiite inmates have complained to DOCS officials that Sunni chaplains preach hatred against Shiites, distribute derogatory and outrageous literature about Shiites and, in some cases, incite Sunni inmates against Shiites.
e. Cyril Rashid and Salahuddin Muhammad have made available to inmates an article entitled “The Difference between the Shi’i and the Muslims” by Saeed Ismaeel. This work in published in Saudi Arabia and states, among other
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things, that Shiite Islam is a Jewish conspiracy and that “[t]he cornerstone of the Shi’i faith is false and baseless.” Abdulkadir Elmi has made available another Wahhabi article which asserts that Shiism is a Jewish conspiracy to undermine Islam. Shiite inmates have filed grievances calling these incidents to the attention of DOCS policymakers. f. Umar and Sunni chaplains hired and trained by Umar have taught DOCS inmates that Shiites are, among other things, deviants, idolaters, rejectors, infidels, hypocrites, Satan worshippers, trouble-makers, polytheists, unbelievers and agents of a Jewish conspiracy. g. Umar stated that he relied upon a religious body in Saudi Arabia and his experiences as a Muslim in Saudi Arabia to determine the religious needs of Shiites, yet for years it has been common knowledge that Shiites are grossly discriminated against and denied civil and religious rights by the government and Sunni clerical establishment of Saudi Arabia. For example, the United States Department of State regularly reports that Sunni/Wahhabi Islam is the state religion of Saudi Arabia and Shiite beliefs are officially suppressed and discriminated against.
63. The incitement against Shiites by Sunni Muslim DOCS employees has resulted in
threats of violence and actual violence directed against Shiite inmates by Sunni inmates.
64. Notwithstanding this, defendants have never fired or formally disciplined a Sunni
chaplain on account of his bigotry or incitement against Shiites.
Events at Fishkill Correctional Facility
65. At all relevant times, co-conspirator Salahuddin Muhammad has been the Muslim
chaplain at Fishkill Correctional Facility. Plaintiffs were incarcerated at Fishkill for several years
during this time.
66. Like all other Muslim chaplains, Salahuddin Muhammad is in charge of, among
other things, providing spiritual counseling and education to inmates, purchasing Islamic books
for the prison library, selecting inmates to lead the Muslim community, scheduling and
administering Islamic education and worship events, maintaining order and security within the
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facility, officiating at holidays ceremonies and leading prayer services and delivering sermons at the Friday Jumuah prayer.
67. Salahuddin Muhammad is a Wahhabi Sunni Muslim and, at all relevant times, has conducted Muslim religious observance at Fishkill in a Sunni manner. Friday Jumuah prayers are performed in the Sunni fashion. The sermons (khutbas) are about Sunni topics, and have frequently denigrated Shiism or Shiite inmates. Muhammad used state money to buy only Sunni books and tapes for the prison library, including a tape teaching that it is lawful to spill the blood of Shiites. Muhammad allowed Wahhabi literature to be distributed which denigrated Shiite Islam in vicious terms.
68. Salahuddin Muhammad shaped the Sunni Muslim inmates at Fishkill into a group which hates Shiites and informs Shiite inmates that they are not welcome in the prison mosque. Since May 1998, DOCS employees Perez, Annucci and the Director of Ministerial and Family Services have been aware that the Sunni inmate leaders at Fishkill assert, in their words, that Shiites “evolved out of a group of Jews and uneducated Muslims who conspired and plotted to assassinate Prophet Muhammad;” that Shiite ideas are “diabolical” and “unacceptable;” that Shiites are prevented from worshipping at Jumuah at Fishkill; and that Sunni inmates believe it is their religious duty, when one sees a person engaging in Shiite practices, to “repudiate[ ]” the Shiite “in the strongest terms,” and also “flee[ ] from him, disown[ ] him and leave[ ] him – dead or alive.”
69. During the time plaintiffs were housed at Fishkill, the by-laws of the prison mosque provided that an inmate member of the mosque hierarchy would have the responsibility for “combating the false ideologies and practices by all those who claim to be Muslims and
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practicing Islam.” At least since 1999, defendants have been aware that this was the policy of the mosque run by Salahuddin Muhammad at Fishkill.
70. Prior to the complaints of plaintiffs Pugh, Chatin and Hamil, at least two other cases have been brought by Shiite inmates about the bigotry of Salahuddin Muhammad at Fishkill: a 1998 state court case by Frankie Cancel and a 1999 federal case by Abbas Kalonji. Through investigating and litigating these cases, DOCS officials including Perez, Annucci, William Mazzuca, Umar and LoConte learned that Salahuddin Muhammad openly preached bigotry against Shiites.
71. For instance, a May 1998 memo written by Salahuddin Muhammad and transmitted to the Deputy Superintendent for Programs at Fishkill, the Director of Ministerial & Family Services in the DOCS Central Office and Anthony Annucci, the Counsel to DOCS, states that Shiism is a “deviant and disruptive school of thought.” The memo also notes Muhammad’s position that he intentionally prevents Shiite beliefs from being espoused at Fishkill.
72. In July 1998, CORC issued a decision rejecting a grievance filed by Mr. Cancel complaining about the lack of Shiite worship services and the denigration of Shiites by Salahuddin Muhammad. CORC stated that it denied the grievance based on the opinion of Warith Deen Umar that “all Muslim religious groups fall under Islam,” except for the Nation of Islam, and that “[a]ll practice the same faith and should not be separated.” According to a state court document filed on behalf of defendant Commission Goord, this CORC decision was made in consultation with the Director of Ministerial and Family Services.
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73. Mr. Cancel filed suit in state court and, in July 1999, the Supreme Court, Dutchess County issued a decision finding that the Sunni services provided by DOCS did not meet the religious needs of Shiite inmates like Mr. Cancel.
74. In September 1999, plaintiffs Pugh, Chatin and Hamil requested that they be able to pray together in the Shiite fashion, apart from the Sunni Muslims at Fishkill.
75. Despite her knowledge that defendant Salahuddin Muhammad considered Shiites to be deviants and did not allow Shiites to practice their religions, defendant Perez denied the grievance and informed plaintiffs that they must seek religious services and advice from Chaplain Muhammad at Fishkill.
76. In October 1999, Salahuddin Muhammad and/or defendant Perez denied plaintiffs the ability to receive a religious counseling visit from a representative of a Shiite mosque New York City.
77. In December 1999, plaintiffs filed grievances seeking worship services and accommodations separate from Salahuddin Muhammad and the Sunni Muslim inmates at Fishkill. The grievances were, in effect, denied on the ground that unless and until DOCS policy was changed, plaintiffs must receive spiritual services through Salahuddin Muhammad. These grievances were consolidated by DOCS and exhausted when CORC issued a decision in or about February 2000.
78. After plaintiffs filed grievances about this issue, Salahuddin Muhammad attempted to incite Sunni inmates against plaintiffs by preaching that plaintiffs were infiltrators and snitches – dangerous insults in a prison. Pugh complained about this to defendant Mazzuca in January 2000.
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79. Later in February 2000, Salahuddin Muhammad and Sunni inmates attempted to threaten and intimidate plaintiff Chatin because of the grievance Chatin had filed. Chatin complained about this to defendant Mazzuca and CORC in February 2000.
80. In January 2000, plaintiff Chatin wrote to defendant Umar, with copies to defendants Goord, Mazzuca and Salahuddin Muhammad, asking for Shiite inmates to be able to practice their religion.
Final decision in Cancel v. Goord 81. In December 2000, the New York Supreme Court, Appellate Division for the Second Department, issued a decision in Cancel v. Goord, ruling that “it is readily apparent that [Cancel’s] spiritual needs have not been met. In light of the overwhelming evidence in the record that significant dogmatic differences separate the two Muslim communities within [Fishkill Correctional] facility, we agree that the denial of the grievance was arbitrary and capricious and in violation of [New York law].” 82. The Court “remit[ted] the matter to the DOCS to conduct administrative proceedings, with Shi’a participation, to determine the manner in which to best afford Shi'a inmates separate religious services, under appropriate Shi’a religious leadership, in a time and place that comport with legitimate penological concerns.” 83. The decision became final on March 29, 2001 when the New York Court of Appeals denied Goord leave to appeal. 84. Defendants did not engage in a good faith administrative proceeding to implement Cancel v. Goord’s requirements of separate Shiites services under Shiite leadership. Although defendants knew that the court had ordered separate Shiite services under Shiite leadership,
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defendants engaged in an effort to make it appear that they were taking steps to implement this mandate while in fact continuing current policy.
85. Defendants claim they relied on the advice of a Shiite mosque in New York City (the Imam Al-Khoei Islamic Center) received during 2001 to determine that separate Shiite services were not religiously required. But defendants manipulated the Al-Khoei Center’s advice by, among other things, pronouncing DOCS’s conclusions in advance of meeting with the Center.
86. Defendants’ decision to continue current policy instead of implementing Cancel v. Goord was based primarily on the religious opinion of Sunni extremist Warith Deen Umar. Umar’s religious decision about Shiite needs was based on Sunni/Wahhabi precepts. In an affidavit filed in early 2000 in Orafan v. Goord, 95-CV-319 (Northern District of New York), Umar stated that separate Shiite services were not religiously required and cited (i) his communication with “the Fiqh Committee based in Saudi Arabia,” (ii) his own understanding of the tenets of Islam, (iii) an opinion issued by the Chairman of the Fiqh Council of North America (“FCNA”), and (iv) Umar’s “own observations while visiting Mecca, Saudi Arabia on four occasions since 1978.”
87. Umar submitted a written statement from Dr. Taha Jabir Alalwani, Chairman of the FCNA, dated April 18, 2000. This statement was a religious opinion that “[t]here are no fundamental differences” between Sunni and Shiite, “the main difference they had in history was in political affairs,” and “[t]hey can pray together.” This statement was knowingly false and/or misleading, and represents the sectarian religious views of Alalwani and Umar.
88. Before coming to the United States, Alalwani was a professor at a state-run Wahhabi university in Saudi Arabia. For years, Alawani and his organizations have been under
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investigation by federal law enforcement on suspicion that they funded extremist Sunni terror
groups like Hamas and Palestinian Islamic Jihad. In early 2002, Alalwani’s home and the offices
of the FCNA and related organizations were raided by federal law enforcement as part of the
Operation Green Quest investigation to stem terror fundraising. Later, it was reported that Dr.
Alalwani is an unindicted co-conspirator in two federal prosecutions related to Sunni terror
funding.
89. Alalwani’s FCNA is a Sunni organization and has no authority with Shiite Muslims.
Umar knew this when he solicited the opinion of Alalwani and the FCNA in April 2000
regarding the rights of Shiite inmates, yet Umar falsely represented to the Court in this case that
the FCNA had Shiites in leadership positions.
90. The religious determination by Umar and the FCNA about the beliefs and rights of
was adopted by DOCS and maintained unchanged even after the decision of the Appellate
Division in Cancel v. Goord in December 2000. For instance, DOCS submitted a similar
affidavit from Umar and the identical statement from the FCNA in October 2001 in the instant
case and heavily relied upon these sources to argue in their October 2001 memorandum of law
that plaintiffs were seeking accommodations which had no basis in Islamic law. DOCS’s
memorandum stated:
• “[Umar] sought the guidance of the Fiqh Council of North America, a ‘nationally recognized board of Muslim scholars and educators whose sole purpose is to provide comprehension and clarity regarding Islamic law and practices.’ According to Imam Umar, the Council is recognized as authoritative by all of the major Muslim organizations in America, including those to which Shi’ites belong and play leadership roles. In response to his specific inquiry to the Fiqh Council regarding the necessity or appropriateness of separate worship by Shi’ite and Sunni Muslim inmates, Imam Umar received the following response: ‘The Shi’a and Sunna, both of them are Muslims. . . . There are no fundamental differences between them. They can pray together . . . and the main difference they had in history was in political affairs. . . .’”
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• “Pugh does not purport to be an Islamic spiritual leader, nor does he claim to be able to speak with authority on matters of Islamic doctrine. There are within the Islamic community authoritative bodies, however, including the Fiqh Council, a deliberative body composed of Islamic scholars . . . that are so qualified and to whom DOCS . . . addressed questions regarding the necessity of separate worship for Shi’ites and Sunnis. [These authorities] stated emphatically that there is no requirement for the separation sought by plaintiffs herein. Nevertheless . . . plaintiffs seek to have [the district court] substitute its judgment for that of these canonical authorities.”
• “As a result of the advice obtained from, among others, . . . the Fiqh Council, DOCS has concluded that religious practices unique to Shi’ite Muslims can be accommodated within the existing Islamic program at DOCS, as recently modified, without the need for separate services, prayer areas or chaplains.”
91. Defendants also relied on Sunni extremist Salahuddin Muhammad to support their
decision to ignore the Cancel v. Goord court order. As discussed above, DOCS officials were
aware since 1998 that Salahuddin Muhammad considers Shiism to be a “deviant and disruptive
school of thought” and prevents Shiite freedom of expression. Yet in or about 2001, defendants
relied on the religious opinion of Salahuddin Muhammad to confirm that separate Shiites services
were not religiously required.
The “Protocol for Shiite Muslim Programs and Practices”
92. As part of their effort to sidestep the mandate of Cancel v. Goord, defendants
developed and promulgated the so-called “Protocol for Shiite Muslim Programs and Practices” in
August 2001. The “Protocol,” which is still in effect, is both facially insufficient to remedy the
systematic discrimination against Shiites within DOCS, and is also not applied fairly to Shiites.
93. The Protocol provides that Shiite inmates “shall have the same rights as all other
inmate faith groups to attend Shi’ite Muslim religious education and study classes.” But the
Protocol does not provide that Shiite inmates be treated equally to Sunni inmates (or other
similarly situated inmates) with regard to study and education. And in fact Shiite inmates,
including plaintiffs, have been arbitrarily denied study classes; have been harassed and bothered
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by DOCS employees with regard to the administrative details of study classes; have been allowed far fewer study classes per week than Sunni inmates and other religious groups; and have not been given funding equal to Sunni inmates for books and other materials. Mazzuca, Salahuddin Muhammad and Jimmie Harris were personally involved in these actions and inactions.
94. The “Protocol” provides that there will be a single Jumuah service for both Sunnis and Shiites, but that Shiites “shall be afforded the full and equal opportunity to participate in, without discrimination, the weekly Friday Juma service.” Instead, Sunni chaplains and Sunni inmates at many correctional facilities have continued their policy of making Shiites unwelcome at Jumuah by, among other things, directly preaching against Shiites, using code words and veiled language to ostracize and belittle Shiites, distributing anti-Shiite literature, making direct verbal threats and engaging in other inappropriate and/or threatening behavior. Sunni chaplains and Sunni inmates also continue to make Shiites unwelcome at Jumuah services by performing the services in the Sunni manner.
95. For these reasons, and because the Sunni Jumuah service has no religious value for them, plaintiffs Pugh and Chatin to this day are not able to participate in Jumuah services.
96. The written Protocol provides that Shiite inmates shall be allowed to observe the Shiite holy days of Ashura and Id Ul Ghadeer Khum (a day near the end of the Prophet’s life on which he designated Imam Ali his successor). Notwithstanding this, Shiite inmates including plaintiffs have been prevented by DOCS officials from observing these holy days at all, and/or have not been allowed to observe them in a manner equivalent to other religious groups on their designated holy days.
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97. In or about March 2002, Pugh filed a grievance requesting that Cancel v. Goord be followed and that Shiite education classes and a separate Shiite worship service be implemented. In March 2002, Superintendent Mazzuca responded that “as soon as an Imam volunteer of the Shi’a denomination of the Islamic faith has been identified, religious services will be instituted.” This was never done.
98. In August 2002, CORC denied a grievance filed by plaintiff Pugh regarding interference with Shiite study classes.
99. Defendants continue to make decisions about the rights of Shiite inmates based on their own interpretations of Shiite beliefs. For instance, in January 2002, CORC denied a grievance requesting separate Shiite services on the ground that the Shiite faith does not require separate services.
100. In December 2003, CORC denied plaintiff Pugh the right to worship separately from Sunni Muslims on the ground that Shiite beliefs do not require separate services.
101. In the years since the Shiite Protocol, Shiite inmates other than plaintiffs have filed grievances about the same discriminatory treatment faced by plaintiffs. CORC has denied all of these grievances and upheld the Protocol. DOCS has been given and has rejected numerous opportunities to resolve this dispute through the grievance process.
The Long Relationship with Dr. Alalwani 102. Since at least 1997, defendant Warith Deen Umar had a close relationship with Alalwani and his organizations. In 1997, Umar hosted an official from Alalwani’s Graduate School of Islamic and Social Sciences (GSISS) at a NAMC event in New York.
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103. In November 1997, Umar on behalf of the NAMC, and Dr. Alalwani on behalf of the GSISS, signed a “Memorandum of Understanding.” The Memorandum provided, among other things, that the GSISS would fund five scholarships for Muslim chaplains chosen by the NAMC.
104. In 1998, Umar and his NAMC organization worked with Dr. Alalwani and the GSISS to hold a training conference to DOCS Muslims chaplains at the GSISS. A focus of the conference was “The Prison Plan: 2000 and Beyond” which concerned Sunni Muslim proselytizing in United States prisons.
105. In February 1999, the GSISS donated many thousands of Qurans to DOCS chaplains for distribution to inmates.
106. In spring 2000, Umar and the NAMC held another training conference for DOCS Muslim chaplains at the GSISS. Umar informed defendants LoConte, Headley and Nuttal of this by email.
107. In 2000, Dr. Alalwani used his connections with the Saudi government to arrange for Umar and other DOCS chaplains to make the hajj (pilgrimage) to Saudi Arabia, paid for by official Saudi sources. On information and belief, defendant LoConte was aware the official Saudi funding was being used for Umar’s trip.
108. Since Umar retired from DOCS in late 2000, defendants Muhammad S. Ahmed and Ismail Abdur Rahim maintained the relationship between DOCS Muslim chaplains and the GSISS.
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109. In May 2002 – months after the Operation Green Quest raids were publicly reported – Ismail Abdur Rahim and the GSISS held another training conference for DOCS Muslim chaplains at the GSISS.
Umar’s Retirement and the Majlis Ashura 110. After Umar retired in 2000, first defendants Muhammad Ahmed and then defendant Ismail Abdur Rahim assumed control of Muslim programs and personnel within DOCS. Defendants then decided that an organization closely affiliated with Ismail Abdur Rahim would replace the NAMC as the endorsing body for DOCS chaplains. This new organization is called the Majlis Ashura of New York City and the Metropolitan Area. 111. The Majlis Ashura is a Sunni organization and does not speak for Shiite Muslims. 112. Muhammad Ahmed and Ismail Abdur Rahim are a Sunni Muslims and do not speak for Shiite Muslims. Rahim has distributed within DOCS writings by Sheikh Abdul Aziz bin Baaz, who, until his recent death, was the head of the Saudi Arabian Wahhabi clerical establishment. He has maintained Umar’s policy of establishing Sunni Islam within DOCS. 113. The Majlis Ashura has at least two officers, Amin Awad and Siraj Wahhaj, who are extremist Sunni Muslims linked to the first World Trade Center bombing conspiracy in a court document filed by the United States Attorney’s Office for the Southern District of New York. 114. Al-Amin Abdul Latif, a Sunni Muslim with close personal and religious ties to Ismail Abdur Rahim and Siraj Wahhaj, is the official at the Majlis Ashura who controls the endorsing of Muslim chaplains for DOCS. Latif himself was formerly a DOCS Muslim chaplain. He is a Sunni Muslim and does not speak for Shiite Muslims.
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115. In or about 2000, defendants Ahmed and Ismail Abdur Rahim created an organization called the New York Muslim Chaplains League to play the same role as the NAMC. The Muslim Chaplains League continued to work with Alalwani and the GSISS at least until 2002.
116. In 2001, the Majlis Ashura simply rubber-stamped all of the chaplain hiring decisions which had previously been made by Umar. To this day, DOCS has never had a credible, independent body to vet and hire Muslim chaplains.
117. On February 5, 2003, the Wall Street Journal reported that:
• Umar is a Wahhabi; • Umar believed the September 11 hijackers should be honored as martyrs; • Umar used his position with DOCS to spread Sunni radicalism to inmates; • Umar had allegedly preached that Shiite Islam was a Jewish conspiracy; • Umar is affiliated with the Graduate School of Islamic and Social Sciences in
Virginia, a school under investigation by federal law enforcement for funding of Sunni terrorism; • Umar and other New York prison chaplains had traveled to Saudi Arabia at the expense of the Saudi government; • Umar has consulted with Saudi Arabian religious leaders and agrees with their views; and • Umar claimed he had attempted to hire a Shiite chaplain in 1993, but was prevented by the opposition of the other Sunni chaplains.
118. Umar’s supervisors were or should have been previously aware of much of this information. Notwithstanding their knowledge of Umar’s extremism and religiously-motivated bias against Shiites, defendants have kept in place Umar’s longstanding policy concerning Shiites.
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119. Very recently, DOCS hired one person who calls himself Shiite to work in an administrative capacity out of a New York City office. But this person does not minister to plaintiffs or, on information and belief, other Shiite inmates; does not lead Shiite prayer services; and apparently holds certain religious beliefs which are different than plaintiffs and the Shiite thinkers they follow. As such, plaintiffs cannot credit or receive religious counseling from this new employee.
Accommodations for other groups and sub-groups 120. Defendants allow separate group religious observances and/or provides paid chaplains to officiate at group religious services for many small and large inmate religious groups, many of which are similarly situated to Shiites, including Protestants, Spanish-speaking Protestants, Catholics, Spanish-speaking Catholics, Jehovah’s Witnesses, 7th-day Adventists, Quakers, Eastern Orthodox Christians, Buddhists, Native Americans, Hindus, Jews, Rastafarians, adherents of Santeria, and adherents of two indigenous American forms of Islam known as Moorish Science Temple and the Nation of Islam. 121. Defendants also provide what is, in effect, a Sunni Muslim religious program. 122. Although defendants have asserted that they do not provide separate services for subgroups within a religion, they in fact provide separate services for at least eight subgroups of Christians and three variants of Islam. 123. According to DOCS records and estimates, many of the religious groups listed in paragraph 120 have fewer adherents within DOCS than Shiites. 124. Defendants have never offered and do not have a fair and legitimate rationale for allowing separate group religious activity by all of these groups but denying the same to Shiites.
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125. There is no administrative or staffing problem which justifies allowing all of these other groups to have separate worship accommodations while denying the same to Shiites. In particular, there is no administrative or staffing problem which justifies allowing Sunni Muslims, Nation of Islam and Moorish Science Temple to have separate worship accommodations while denying the same to Shiites.
126. There is no security concern which justifies allowing all of these other groups to have separate worship accommodations while denying the same to Shiites. In particular, there is no security concern which justifies allowing Sunni Muslims, Nation of Islam and Moorish Science Temple to have separate worship accommodations while denying the same to Shiites.
127. Plaintiffs and other Shiite inmates have been given far fewer religious education classes than Sunni Muslims, Nation of Islam Muslims, various Christian groups, and other similarly situated religious groups. When Shiite study classes have been allowed to occur, defendants have limited plaintiffs and other Shiite inmates to one class per week. In contrast, other religious groups are allowed as many as four or more classes per week.
FIRST CAUSE OF ACTION FREE EXERCISE OF RELIGION AS PROVIDED BY THE RELIGIOUS LAND USE AND
INSTITUTIONALIZED PERSONS ACT OF 2000, AS AGAINST ALL DEFENDANTS 128. Plaintiffs repeat and reallege paragraphs 1 to 127. 129. Through the actions, policies, customs and practices alleged above, defendants,
under color of State law, have imposed and continue to impose a substantial burden on plaintiffs’ religious exercise in violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000-cc without any compelling justification.
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130. As a result of this continuing violation, plaintiffs have endured and continue to endure great and irreparable loss, damage and injury. Unless this Court orders defendants to provide plaintiffs with the opportunity to freely exercise their religion of Shiite Islam, defendants will continue to engage in the conduct and practices set forth above and plaintiffs will continue to suffer irreparable harm.
SECOND CAUSE OF ACTION FREE EXERCISE OF RELIGION AS PROVIDED BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AS AGAINST ALL DEFENDANTS
131. Plaintiffs repeat and reallege paragraphs 1 to 130.
132. Through the actions, policies, customs and practices alleged above, defendants, under color of State law, have imposed and continue to impose a substantial burden on plaintiffs’ free exercise of religion in violation of the First and Fourteenth Amendments to the United States Constitution.
133. As a result of this continuing violation, plaintiffs have endured and continue to endure great and irreparable loss, damage and injury. Unless this Court orders defendants to provide plaintiffs with the opportunity to freely exercise their religion of Shiite Islam, defendants will continue to engage in the conduct and practices set forth above and plaintiffs will continue to suffer irreparable harm.
THIRD CAUSE OF ACTION CONSPIRACY TO DENY CIVIL RIGHTS AS PROHIBITED BY 42 U.S.C. § 1985(3) AND
THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AS AGAINST DEFENDANTS UMAR AND RAHIM
134. Plaintiffs repeat and reallege paragraphs 1 to 133.
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135. Through the actions, policies, customs and practices alleged above, defendant Umar conspired with the individuals described in paragraphs 25 and 26, under color of State law, to deprive plaintiffs and other Shiite inmates of their rights under the First and Fourteenth Amendments to the United States Constitution.
136. Through the actions, policies, customs and practices alleged above, defendant Rahim conspired with the individuals described in paragraphs 25 and 26, under color of State law, to deprive plaintiffs and other Shiite inmates of their rights under the First and Fourteenth Amendments to the United States Constitution.
137. As a result of these violations, plaintiffs have endured and continue to endure great and irreparable loss, damage and injury. Unless this Court orders defendants to provide plaintiffs with the opportunity to freely exercise their religion of Shiite Islam, defendant Rahim will continue to engage in the conduct and practices set forth above and plaintiffs will continue to suffer irreparable harm.
FOURTH CAUSE OF ACTION FAILURE TO PREVENT CONSPIRACY TO DENY CIVIL RIGHTS AS PROHIBITED BY 42
U.S.C. § 1986, AS AGAINST DEFENDANTS GOORD, LOCONTE, LENARD, HEADLEY, NUTTAL, PEREZ, HARRIS.
138. Plaintiffs repeat and reallege paragraphs 1 to 137.
139. Through the actions and practices alleged above, defendants knew that Umar and Rahim were conspiring with the individuals described in paragraphs 25 and 26, under color of State law, to deprive plaintiffs and other Shiite inmates of their rights under the First and Fourteenth Amendments to the United States Constitution.
140. Having the power to stop this conspiring, defendants allowed it to continue.
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141. As a result of these violations, plaintiffs have endured and continue to endure great and irreparable loss, damage and injury. Unless this Court restrains defendants from engaging in the conduct and practices set forth above and plaintiffs will continue to suffer irreparable harm.
FIFTH CAUSE OF ACTION ESTABLISHMENT OF RELIGION AS PROHIBITED BY THE FIRST AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION, AS AGAINST ALL DEFENDANTS 142. Plaintiffs repeat and reallege paragraphs 1 to 141. 143. Through the actions, policies, customs and practices alleged above, defendants,
under color of State law, have effectively established Sunni Islam as the official version of Islam within DOCS, in violation of the First and Fourteenth Amendments to the United States Constitution.
144. As a result of this continuing violation, plaintiffs have endured and continue to endure great and irreparable loss, damage and injury. Unless this Court orders defendants to refrain from establishing Sunni Islam, and to take steps to dismantle this establishment, defendants will continue to engage in the conduct and practices set forth above and plaintiffs will continue to suffer irreparable harm.
SIXTH CAUSE OF ACTION EQUAL PROTECTION OF THE LAWS AS PROVIDED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AS AGAINST ALL DEFENDANTS
145. Plaintiffs repeat and reallege paragraphs 1 to 144. 146. Through the actions, policies, customs and practices alleged above, defendants, under color of State law, have knowingly and intentionally provided plaintiffs and other Shiite
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Muslims substantially worse accommodations than many other similarly-situated inmate religious groups, in violation of the Fourteenth Amendment to the United States Constitution.
147. As a result of this continuing violation, plaintiffs have endured and continue to endure great and irreparable loss, damage and injury. Unless this Court orders defendants to refrain from this unequal treatment, and to take steps to accommodate plaintiffs in a manner similar to other similarly-situated inmate religious groups, defendants will continue to engage in their damaging conduct and practices and plaintiffs will continue to suffer irreparable harm.
SEVENTH CAUSE OF ACTION FREE EXERCISE OF RELIGION AS PROVIDED BY NEW YORK CONSTITUTION ART. I,
§ 3, AS AGAINST ALL DEFENDANTS 148. Plaintiffs repeat and reallege paragraphs 1 to 147. 149. Through the actions, policies, customs and practices alleged above, defendants have imposed and continue to impose a substantial burden on plaintiffs’ free exercise of religion in violation of Article I, § 3 of the New York Constitution. 150. As a result of this continuing violation, plaintiffs have endured and continue to endure great and irreparable loss, damage and injury.
EIGHTH CAUSE OF ACTION FREE EXERCISE OF RELIGION AS PROVIDED BY N.Y. CORRECTION LAW § 610, AND
DOCS DIRECTIVES 4200, 4202 AND 4750, AS AGAINST ALL DEFENDANTS 151. Plaintiffs repeat and reallege paragraphs 1 to 150. 152. Through the actions, policies, customs and practices alleged above, defendants have
imposed and continue to impose a substantial burden on plaintiffs’ free exercise of religion in
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violation of New York Correction Law § 610; DOCS Directives 4200, 4202 and 4750; and other applicable New York State rules and regulations.
153. As a result of this continuing violation, plaintiffs have endured and continue to endure great and irreparable loss, damage and injury.
PRAYER FOR RELIEF 154. Plaintiffs seek judgment:
a. declaring that defendants’ actions and omissions have violated and continue to violate plaintiffs’ rights;
b. enjoining defendants, preliminarily and permanently, from further harming plaintiffs, as described above in paragraphs 130, 133, 137, 141, 144 and 147;
c. awarding plaintiffs compensatory damages jointly and severally from each defendant;
d. awarding plaintiffs nominal damages from each defendant; e. awarding plaintiffs punitive damages from each defendant; f. awarding plaintiffs’ attorney’s fees as well as costs and disbursements incurred in this action; and g. granting such other and further relief as the Court may deem just and proper. Dated: New York, New York
January 18, 2004
________________________ J. ANDREW KENT (JK-2891) 125 Broad Street New York, New York 10004 (212) 558-7921 Attorney for Plaintiffs
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US Court of Appeals for the Second Circuit Case Summary

Court of Appeals Docket #: 02-30 Nsuit: 3555 PRISONER PET-Prison Condition Pugh, et al v. Goord, et al Appeal from: U.S. District Court

Filed: 1/31/02

Lower court information: District: 0208-01: 00-cv-7279 Trial Judge: Gerard E. Lynch

4/25/03

**ORIGINAL** Argument as early as week of 5/19/03. (ca96)

4/28/03

Proposed for argument the week of 7/14/03. (ca96)

6/3/03

Set for argument on 7/14/03 . [02-30] (ca96)

7/11/03

Letter received dated 7/10/3 from attorney J. Andrew Kent, asking that court protect appellant's identity. (pr25)

02-30 Pugh, et al v. Goord, et al

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7/14/03

Case heard before VAN GRAAFEILAND, CALABRESI, WESLEY, C.JJ . (TAPE: CD Date: 7/14/03) (ca97)

9/24/03

Judgment of the district court is VACATED & REMANDED by published signed opinion filed. (RCW) [02-30] (pr25)

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Judgment filed. [Entry Date: 9/25/03] (pr25)

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Notice to counsel of errata sheet filed 10/15/3. (pr25)

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Record on appeal RETURNED to lower court. No. of volumes: 1 (ref)

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 345 F.3d 121 (2003)
Thomas PUGH, Jr., Edward Hamil and Clay Chatin, Plaintiffs-Appellants, Errol Ennis, Plaintiff, v.
Glenn S. GOORD, Commissioner of D.O.C.S., William Mazzuca, Supt. F.C.F., Ada Perez, Dupt. of Program F.C.F., Lewis Goidel, Grievance Supervisor, Thomas Eagen, Grievance
Director, Warith Deen Umar, Administrative Chaplain, Defendants-Appellees.
Docket No. 02-0030.
United States Court of Appeals, Second Circuit.
Argued: July 14, 2003. Decided: September 24, 2003.
122 *122 J. ANDREW KENT, New York, NY, for Plaintiffs-Appellants.
SACHIN S. PANDYA, Assistant Solicitor General for Eliot Spitzer, Attorney General of New York, (Michael S. Belohlavek, Deputy Solicitor General, on the brief), New York, NY, for Defendants-Appellees.
Richard S. Mezan, for Foundation for the Defense of Democracies, Amicus Curiae.
Before: VAN GRAAFEILAND, CALABRESI, WESLEY, Circuit Judges.
RICHARD C. WESLEY, Circuit Judge.
Appellants Thomas Pugh, Edward Hamil and Clay Chatin, acting pro se, brought this civil rights action (42 U.S.C. § 1983) against several senior administrators of the New York State Department of Correctional Services ("DOCS") and Fishkill Correctional Facility ("Fishkill"). Appellants are incarcerated Shiite Muslims. They contend, among other things, that DOCS has refused to allow them to hold their own congregate prayer services separate from Sunni Muslim inmates in violation of their constitutional and federal statutory rights. Early on in the litigation, appellants moved for a preliminary injunction to prevent DOCS from implementing a state-wide Protocol that provided for a single Muslim prayer service. After a hearing on the motion, the district court denied the preliminary injunction and, without notice to either side, sua sponte dismissed appellants' claims. We conclude the district 123 court erred by failing to provide appellants adequate notice of its intention to dismiss the action. Thus, the district *123 court's order should be vacated and the case remanded for further proceedings.
The factual and procedural background of this case is carefully detailed in the decision of the district court. See Pugh v. Goord, 184 F.Supp.2d 326 (S.D.N.Y. 2002) (Pugh I). In essence, appellants contend that DOCS's religious program for Muslims impermissibly impairs their ability to practice the Shiite faith. They contend the Muslim program at Fishkill is dominated by Sunni Muslims and a Sunni Iman. They further assert that certain Sunni worship practices directly contradict their religious tenets and the Iman has been openly hostile to the Shiite inmate population. Id. at 329-30. Juxtaposed to appellants' contentions is a detailed program instituted by DOCS prior to this dispute that attempts to focus on and accommodate elements common to all sects of Islam: "(1) Jum'ah (Friday noon services); (2) Islamic studies classes; (3) Islamic introduction services; and (4) Majlis Shu'urah (consultation and religious planning)." Id. at 328. Additional dietary and spiritual accommodations are also provided as well as a grievance procedure for individual complaints against Muslim prison chaplains. See id. at 328-29.
Appellants were not the only inmates to seek redress before the courts with regard to the Fishkill Iman and Sunni/ Shiite difficulties. As the district court aptly noted, similar complaints were successfully litigated in New York state court. Id. at 330 (discussing Cancel v. Goord, 278 A.D.2d 321, 717 N.Y.S.2d 610 (2d Dep't.2000), leave to appeal denied, 96 N.Y.2d 707, 725 N.Y.S.2d 638, 749 N.E.2d 207 (2001)). In response to the state court's directives in Cancel, DOCS augmented the program with a state-wide Protocol in August 2001 to increase Shiite inmate

access to DOCS's sanctioned religious services and classes and to ensure that Shiite inmates would not be harassed or subjected to discrimination in the practice of their faith.[1]Id. In the district court's view, "DOCS undertook a sincere, thoughtful and effective effort to reconcile the religious needs of the [Shiite] prisoner population with the security and penological interests of the State." Id. at 331.
Shortly after DOCS issued its Protocol 0907 7 days to be exact 0907 appellants moved for a preliminary injunction challenging the Protocol and, once again, asserted their immediate right to a separate religious program. On October 5, 2001, the court held a conference on the motion. Appellants again asked for a separate prayer area and chaplain. In response, defendants submitted the affidavit of John LoConte, then-Director of Ministerial and Family Services for DOCS. LoConte explained that DOCS provides prisoners with religious opportunities and generally alleged there would be administrative, spacial and security burdens if DOCS were required to accommodate all denominational differences.
124 *124 In January 2002, the district court issued an order denying appellants' preliminary injunction motion. See Pugh I, 184 F.Supp.2d at 337. The court reasoned that appellants did not dispute "that the four-point program for Muslim inmates is facially non-sectarian, and permits practice of those aspects of Islam that are common to both the Shiite and Sunni faiths. Prisoners are permitted to pray five times daily, to participate in religious consultation and instruction, to take part in communal Jum'ah services and to possess and use religious symbols such as prayer rugs and prayer beads." Id. at 333. The court characterized appellants as asserting that "regardless of whether the DOCS Muslim program passes constitutional muster on its face, the program as administered under the Sunni chaplain at Fishkill significantly infringes upon their ability to worship freely." Id. at 334.
The court then applied the four-factor inquiry set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and concluded the "Constitution does not require more than is provided by DOCS's Muslim program, as modified by the new [Shiite] Protocol and that [appellants] accordingly cannot succeed on the merits of their claims." Id. at 333. Having denied the preliminary injunction, the district court then sua sponte dismissed appellants' complaint indicating that further discovery would not aid in resolution of the matter. The court took note that appellants "do not dispute that all Islamic sects share certain central religious practices, and that these shared religious practices are accommodated under the DOCS program.... The only dispute remaining is purely a legal one concerning whether the measures actually taken by the defendants are constitutionally sufficient." Id. at 337.
In March 2002, appellants, now represented by counsel, moved pursuant to Federal Rule of Civil Procedure 60 (b) to vacate the judgment. The court denied the motion noting its previous decision "turned not on whether [Shiite] doctrine permits Sunni and [Shiite] Muslims to worship together, but on the reasonableness of the justifications set forth by DOCS for refusing to provide separate opportunities for congregate worship." Pugh v. Goord, No. 00-7279 (S.D.N.Y.2002) (Pugh II). The court also refused to recognize a claim under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") noting that appellants had not raised the statute prior to filing the Rule 60 motion.
Appellants appeal from both orders.[2]
Analysis
District courts have the power to enter summary judgment sua sponte only if "the losing party was on notice that [it] had to come forward with all of [its] evidence." First Financial Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 114 (2d Cir.1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A sua sponte award of summary judgment may well be appropriate if it is clear that all of the evidentiary 125 material a party might submit is before the court and no material issue of fact exists. Ramsey v. Coughlin, *125 94 F.3d 71, 74 (2d Cir.1996). But even that is cast into doubt by First Financial, which suggests that, where no party has moved for summary judgment and no notice was given by the court, a sua sponte grant of summary judgment is never appropriate. See First Financial, 193 F.3d at 115. In addition, this Court has regularly noted that "the failure to provide [a] pro se party with notice of the requirements of Rule 56 of the Federal Rules of Civil Procedure, and the consequences of noncompliance therewith, will result in vacatur of the summary judgment,

no matter how meritorious, unless the movant shows (or it is obvious to the court) that the pro se was aware of this rule's requirements." Irby v. New York City Trans. Auth., 262 F.3d 412 (2d Cir.2001) (emphasis added); see also McPherson v. Coombe, 174 F.3d 276, 282 (2d Cir.1999). There was no such showing here.
The inmates' motion and their supporting papers for a preliminary injunction did not require the district court to determine the matter as if it were confronted with an application for summary judgment under Rule 56. "[P]reliminary injunction motion papers should not be treated as if they were a response to a motion for summary judgment," because parties are not required to present everything they have when moving for a preliminary injunction. Hispanics for Fair & Equitable Reapportionment v. Griffin, 958 F.2d 24, 26 (2d Cir.1992). Appellants were required to establish the likelihood of success on the merits, see, e.g., Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir.1999), but the "[l]oss of a motion for preliminary injunction means only temporary lethality." Griffin, 958 F.2d at 26. While appellants may have been appropriately denied injunctive relief, that did not require the court to resolve the entire matter.
DOCS urges us to affirm the district court's dismissal; it agrees with the district court that further discovery would not have resulted in establishing issues of material fact. See Fed.R.Civ.P. 56(f). In effect, DOCS maintains appellants were not prejudiced by the lack of notice. It is hard to assess this contention until it is measured against appellants' response to a summary judgment application from DOCS or on the court's initiative. The district court specifically noted appellants had made a "sufficient allegation" that absence of an opportunity for separate Shiite worship services "infringed on plaintiffs' ability to practice their religion." Pugh II; see also Pugh I, 184 F.Supp.2d at 332-35. Nevertheless, the court determined as a matter of law that DOCS's justification for denying separate religious opportunities was reasonable. It did so by relying on an affidavit from Director LoConte that, at best, contained generalized assertions about the institutional impact of separate Shiite services. It may be that the Protocol is a reasonable penological accommodation of Shiite needs; however, appellants should first be put on notice that they must come forward to identify a genuine issue of fact in that regard, or their case will be at an end. In our view, they are entitled to that.
The district court also refused to analyze appellants' claim based on the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, et seq. That statute was raised in an exhibit attached to the amended complaint, and was explicitly claimed as a basis of relief for the first time on the 60(b) motion. Since the summary judgment order is now vacated, we need not decide if that refusal was appropriate. We note only that had notice been given by the court that summary judgment was being considered, there is at least the possibility 126-12p8laintiffs *126-128 would have sought to amend their complaint to raise more squarely the RLUIPA question. In any event, on remand, appellants will have an opportunity to move to amend their complaint if they so choose. See Fed.R.Civ.P. 15.
By holding that the district court failed to uphold the procedural safeguards necessary in this case, we do not of course address the merits of appellants' claims.[3] The district court's order should be vacated and the case remanded.
Editor's Note: The opinion of the United States Court of Appeals, Second Circuit, in Berry v. Kerik, published in the advance sheet at this citation, 345 F.3d 126, was withdrawn from the bound volume at the request of the court.
[1] The trial court in Cancel annulled a DOCS's grievance proceeding determination in which the inmate pro se plaintiff sought separate Shiite worship services. The Court ordered that Shiite Muslims have contact with a Shiite scholar registered with DOCS pursuant to designated DOCS guidelines, or if none was available, that Shiite Muslim inmates be allowed to participate in a religious class once a week with an approved inmate facilitator. Cancel v. Goord, 181 Misc.2d 363, 365, 695 N.Y.S.2d 267 (A.D.2d 1999). The Appellate Division struck the last two directives and remitted the matter to Supreme Court "to conduct appropriate proceedings to determine the manner in which to permit the petitioner and his fellow [Shiite] Muslims to practice their faith, apart from Sunni Muslim prisoners, consistent with all pertinent regulations governing the proper and safe administration of a correctional facility." Cancel, 278 A.D.2d at 321, 717 N.Y.S.2d 610.

[2] DOCS argues that only Pugh has properly appealed from the district court's decision and order of December 28, 2001, because the notice of appeal was titled "THOMAS PUGH, JR., et al." Federal Rule of Appellate Procedure 3(c)(4) clearly states that "an appeal must not be dismissed for informality of form or title of the notice of appeal or for failure to name a party whose intent to appeal is otherwise clear from the notice." (emphasis added). Although the other appellants were not in the caption, all of their names appeared in the notice; it is "objectively clear" that all desired to appeal.
[3] We note that the district court treated appellants' First Amendment claims and Equal Protection claims as being identical. Because we decide the case on the failure to give notice, we express no view on the issue. In the interest of judicial economy, however, we deem it wise to mention that while, on some set of facts 0907 perhaps the ones the district court had before it when it issued summary judgment 0907 the two claims may be identical, it does not necessarily follow that they are the same on other conceivable facts.
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 CLOSED,PRO−SE
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:00−cv−07279−RJS

Pugh, et al v. Goord, et al Assigned to: Judge Richard J. Sullivan Demand: $0 Case in other court: 02−00030. Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Thomas Pugh, Jr.

Date Filed: 09/27/2000 Date Terminated: 01/29/2009 Jury Demand: Plaintiff Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question
represented by Aaron Olshina Lavine Sullivan & Cromwell, LLP (NYC) 125 Broad Street New York, NY 10004 (212) 558−4851 Fax: (212) 558−3358 Email: lavinea@sullcrom.com LEAD ATTORNEY
Caroline M. Flintoft 125 Broad Street 26th Floor New York, NY 10004−2498 (212) 558−1686 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Claire Elise Coleman Sullivan and Cromwell, LLP(NYC) 125 Broad Street New York, NY 10004 (212) 558−4847 Fax: (212) 558−3588 Email: colemanc@sullcrom.com TERMINATED: 06/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Andrew Kent 125 Broad Street New York, NY 10004 (212) 558−7921 TERMINATED: 03/07/2005 LEAD ATTORNEY
Thomas Pugh , Jr. P.O. Box 1245 (95−B−2496) Beacon, NY 12508−0901 LEAD ATTORNEY
Amy Elizabeth Howlett Sullivan & Cromwell, LLP (NYC) 125 Broad Street New York, NY 10004 (212)−558−7413 Fax: (212)−558−4947 Email: howletta@sullcrom.com ATTORNEY TO BE NOTICED

Plaintiff Errol Ennis TERMINATED: 01/20/2004
Plaintiff Edward Hamil
Plaintiff Clay Chatin All Others in the same situation

represented by Errol Ennis PRO SE
Errol Ennis Buffalo Federal Detention Facility 4250 Federal Drive 24−507499 Batavia, NY 14020 LEAD ATTORNEY
represented by Aaron Olshina Lavine (See above for address) LEAD ATTORNEY
Edward Hamil P.O. Box 1245 (97−A−0584) Beacon, NY 12508−0901 LEAD ATTORNEY
James Andrew Kent (See above for address) TERMINATED: 03/07/2005 LEAD ATTORNEY
Amy Elizabeth Howlett (See above for address) ATTORNEY TO BE NOTICED
Caroline Marie Flintoft Sullivan and Cromwell, LLP(NYC) 125 Broad Street New York, NY 10004 (212) 558−1686 Fax: (212) 558−3358 Email: flintoftc@sullcrom.com ATTORNEY TO BE NOTICED
Claire Elise Coleman (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Olshina Lavine (See above for address) LEAD ATTORNEY
Caroline M. Flintoft (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Claire Elise Coleman (See above for address) TERMINATED: 06/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clay Chatin P.O. Box 1245 (92−A−9000)

V. Defendant Commissioner Glen Goord of D.O.C.S.
Defendant William Mazzuca Supt. F.C.F.
Defendant Ada Perez Dupt. of Program F.C.F.
Defendant Lewis Goidel Grievance Supervisor TERMINATED: 01/20/2004 Defendant

Beacon, NY 12508−0901 LEAD ATTORNEY
James Andrew Kent (See above for address) TERMINATED: 03/07/2005 LEAD ATTORNEY
Amy Elizabeth Howlett (See above for address) ATTORNEY TO BE NOTICED
represented by Leonard Arthur Cohen Attorney General of the State of New York 120 Broadway 24th Floor New York, NY 10271 (212) 416−8597 Email: leonard.cohen@oag.state.ny.us LEAD ATTORNEY
Michael J. Keane Office of The Attorney General(NYS) 28 Liberty Street, 21st Floor New York, NY 10005 (212) 416−8550 Fax: (212) 416−6075 Email: michael.keane@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leonard Arthur Cohen (See above for address) LEAD ATTORNEY
Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leonard Arthur Cohen (See above for address) LEAD ATTORNEY
Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leonard Arthur Cohen (See above for address) LEAD ATTORNEY
represented by

T. Eagen Grievance Director TERMINATED: 01/20/2004
Defendant Warith Deen Umar Administrative Chaplin
Defendant Jimmie Harris Deputy Superintendent for Program Services at Fishkill Correctional Facility and former Director of Ministerial and Family Services
Defendant John Nuttal Deputy Commissioner for Program Services and former Assistant Commissioner for Program Services
Defendant Frank Headley former Deputy Commissioner for Program Services
Defendant John R. LoConte former Director of Ministerial and Family Services
Defendant Mark Lenard Director of Ministerial and Family Services
Defendant Muhammad Salih Ahmed former acting Ministerial Program Coordinator for Islamic Affairs
Defendant Ismail Abdur Rahim Ministerial Program Coordinator for Islamic Affairs

Leonard Arthur Cohen (See above for address) LEAD ATTORNEY
represented by Leonard Arthur Cohen (See above for address) LEAD ATTORNEY
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark T. Walsh Gleason, Dunn, Walsh & O'Shea 40 Beaver Street Albany, NY 12207 (518) 432−7511 LEAD ATTORNEY
represented by Michael J. Keane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael J. Keane (See above for address) LEAD ATTORNEY
represented by Michael J. Keane (See above for address) LEAD ATTORNEY

Date Filed 09/27/2000

# Docket Text
1 DECLARATION IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS by Thomas Pugh Jr., Errol Ennis, Edward Hamil, Clay Chatin (bm) (Entered: 09/29/2000)

09/27/2000 09/27/2000 09/27/2000
11/17/2000 11/29/2000 12/28/2000 03/07/2001 03/09/2001 03/09/2001 03/09/2001 03/09/2001 03/15/2001 04/25/2001 05/10/2001 06/12/2001

2 COMPLAINT filed. (bm) (Entered: 09/29/2000)
Magistrate Judge Ronald L. Ellis is so Designated. (bm) (Entered: 09/29/2000)
3 60 DAYS ORDER...The plaintiffs are hereby directed to file an amended complaint containing the information specified above. Should plantiff decide to file an amended complaint, it must be submitted to this Court's Pro Se Office within 60 days of the date of this order, be captioned as an "Amended Complaint" and bear the same docket number as this order. A copy of this Order must be attached to the amended complaint. Plaintiffs are advised that their amened complaint will completely replace their original complaint. No summons shall be issued at this time and all further proceedings shall be stayed for sixty days or until plaintiff has complied with this order. If plaintiff fails to comply with this order within the time allowed, the complaint will be dismissed. Once submitted, the amended complaint shall be reviewed for compliance with this order and substantive sufficiency and then, if proper, the case shall be reassigned to a district judge in accordance with the procedures of the Clerk's Office. If this case is reassigned, a copy of this Order shall be served with the summons and amended complaint. I certify pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith. ( signed by Chief Judge Michael B. Mukasey ) Copies mailed. (bm) (Entered: 09/29/2000)
4 AMENDED COMPLAINT by Thomas Pugh Jr., Errol Ennis, Edward Hamil, Clay Chatin: amending [2−1] complaint (cd) (Entered: 11/21/2000)
5 Notice of reassignment to Judge Gerard E. Lynch . Copy of notice and judge's rules mailed to Attorney(s) of record: Clay Chatin, Edward Hamil, Errol Ennis, Thomas Pugh Jr.. (bm) (Entered: 11/30/2000)
A summons was issued on 12/19/00. (kw) (Entered: 01/02/2001)
6 ACKNOWLEDGEMENT OF SERVICE of S&C as to Ada Perez by self on 2/21/01. Answer due on 3/13/01 for Ada Perez. (lf) (Entered: 03/08/2001)
7 ACKNOWLEDGEMENT OF SERVICE of Summons and Complaint as to Glen Goord by William Gonzalez on 2/21/01. Answer due on 3/13/01 for Glen Goord. (cd) (Entered: 03/12/2001)
8 ACKNOWLEDGEMENT OF SERVICE of Summons and Complaint as to T. Eagen by personal svc on 2/20/01. Answer due on 3/12/01 for T. Eagen. (cd) (Entered: 03/12/2001)
9 ACKNOWLEDGEMENT OF SERVICE of summons and complaint as to William Mazzuca by personal svc on 2/28/01. Answer due on 3/20/01 for William Mazzuca. (cd) (Entered: 03/12/2001)
10 ACKNOWLEDGEMENT OF SERVICE of Summons and Complaint as to Lewis Goidel by personal svc on 2/20/01. Answer due on 3/12/01 for Lewis Goidel. (cd) (Entered: 03/12/2001)
11 Memo−Endorsement on letter addressed to Judge Lynch from Leonard A. Cohen, dated 3/9/01; reset answer due for 5/9/01 for Warith Deen Umar, for T. Eagen, for Lewis Goidel, for Ada Perez, for William Mazzuca, for Glen Goord . ( signed by Judge Gerard E. Lynch ); Copies mailed. (sn) (Entered: 03/19/2001)
12 RETURN OF SERVICE of summons and complaint executed as to Warith Deen Umar by personal service on 4/2/01. Answer due on 4/23/01 for Warith Deen Umar. (kw) (Entered: 04/26/2001)
13 ANSWER TO THE AMENDED COMPLAINT by Glen Goord, William Mazzuca, Ada Perez, Lewis Goidel, T. Eagen, and Warith Deen Umar (Attorney Leonard Arthur Cohen from the Attorney General of the State of New York); jury demand. (kw) (Entered: 05/14/2001)
14 ORDER, reset all discovery due for 9/30/01 ; the next conference before the Court is scheduled for 10/5/01 at 2:45 pm, at which time, if the case has not by then been settled, the parties should be prepared to discuss both a timetable for motion practice and the status of the state court remedial process ( signed by Judge Gerard E. Lynch ); Copies mailed. (cd) (Entered: 06/12/2001)

07/18/2001 08/03/2001 08/03/2001 08/21/2001
08/27/2001 09/19/2001 09/21/2001
09/21/2001
09/21/2001
09/21/2001

15 NOTICE of change of address by Errol Ennis. (kkc) (Entered: 07/20/2001)
Memo from the Pro Se Office regarding the change of address of Errol Ennis. (kw) (Entered: 08/06/2001)
16 Memo−Endorsement on letter addressed to Judge Lynch from Leonard A. Cohen, dated 7/30/01. Re: extending pltff's time to respond to interrogatories ; resetresponse to interrogatories due for 9/24/01 ; The request for the appointment of counsel is denied without prejudice to renewal at a later stage of the litigation . ( signed by Judge Gerard E. Lynch ); Copies mailed. (kg) (Entered: 08/07/2001)
17 ORDER, all parties should be prepared, at the 10/5 conference, to address whether the new protocol moots this action. In particular, if the plntfs believe that the policies adopted in the protocol violate their constitutional rights, they should be prepared to explain what aspects of the new policy they maintain are unconstitutional ; the Clerk is respectfully directed to docket and file in the record of this case the letters referred to in this Order ( signed by Judge Gerard E. Lynch ); Copies mailed. (cd) (Entered: 08/22/2001)
18 NOTICE OF MOTION by Thomas Pugh Jr., for preliminary injunction pursuant to Rule 65 of the FRCP . Affidavit of Thomas Pugh Jr. in support is attached. Return date 10/5/01. (kw) (Entered: 08/31/2001)
19 Memo−Endorsement on letter addressed to Judge Lynch from Leonard A. Cohen, dated 9/5/01; deft's response to motion reset to 9/14/01 for [18−1] motion for preliminary injunction pursuant to Rule 65 of the FRCP . ( signed by Judge Gerard E. Lynch ); Copies mailed. (sn) (Entered: 09/21/2001)
20 ORDER PURS TO RULE 30: PLAINTIFF EDWARD HAMIL; an Assistant Attorney General may take the deposition of plaintiff Edward Hamil before a notary public, or some other officer authorized to administer oaths by the laws of the United States or of the State of NY, at any New York State Correctional Facility, upon notice to the plaintiff and Superintendent of the correctional facility ; Plaintiff is further advised that if he fails to attend and complete his own deposition, the Court may impose sanctions purs to FRCP 37(d), which may include an order dismissing the complaint in this action ; ( signed by Judge Gerard E. Lynch ); Copies mailed. (djc) (Entered: 09/24/2001)
21 ORDER PURSUANT TO RULE 30: PLAINTIFF CLAY CHATIN; an Assistant Atty General may take the deposition of plaintiff Clay Chatin before an otary public, or some other officer authorized to administer oaths by the laws of the United States of the State of NY, at any New York State Correctional Facility, upon notice to the plaintiff and Superintendent of the correctional facility ; Plaintiff is further advised that if he fails to attend and complete his own deposition the Court may impose sanctions purs to FRCP 37(d), which may include an order dismissing the complaint in this action ; ( signed by Judge Gerard E. Lynch ); Copies mailed. (djc) (Entered: 09/24/2001)
22 ORDER PURSUANT TO RULE 30: PLAINTIFF THOMAS PUGH, JR.; An Assistant Attorney General may take the deposition of Plaintiff Thomas Pugh, Jr. before a notary public, or some other officer authorized to administer oaths by the laws of the United States or of the State of NY, at any New York State Correctional Facility, upon notice to the plaintiff and Superintendent of the correctinal facility ; Plantiff is further advised that if he fails to attend and complete his own deposition, the Court may impose sanctions purs to FRCP 37(d), which may include an order dismissing the complaint in this action ; ( signed by Judge Gerard E. Lynch ); Copies mailed. (djc) (Entered: 09/24/2001)
23 Memo−Endorsement on letter addressed to Judge Lynch from Leonard A. Cohen, dated 9/5/01, Defts' Response to motion reset to 10/5/01 for [18−1] motion for preliminary injunction pursuant to Rule 65 of the FRCP ; assuming the conference will be able to proceed is scheduled on that date, defts may make an oral submission on that date, supplemented by any written filing. Plntfs will have an appropriate opportunity to reply after the conference, if necessary ( signed by Judge Gerard E. Lynch ); Copies mailed. (cd) (Entered: 09/24/2001)

10/03/2001
10/29/2001 10/29/2001 11/07/2001 11/13/2001 12/06/2001 01/03/2002
01/03/2002 01/15/2002
01/31/2002 01/31/2002 01/31/2002 03/18/2002 03/18/2002
03/18/2002 03/29/2002

24 Memo−Endorsement on letter addressed to Judge Lynch from Leonard A. Cohen, dated 9/10/01, granting defts request for leave of the Court to take Mr. Ennis' deposition at any time prior to the date of the trial of this matter in the event he returns to the US ( signed by Judge Gerard E. Lynch ); Copies mailed. (cd) (Entered: 10/04/2001)
25 AFFIDAVIT of Leonard A. Cohen by defendants in opposition to [18−1] motion for preliminary injunction pursuant to Rule 65 of the FRCP. (kw) Modified on 10/30/2001 (Entered: 10/30/2001)
26 MEMORANDUM OF LAW by defendants in opposition to [18−1] motion for preliminary injunction pursuant to Rule 65 of the FRCP. (kw) (Entered: 10/30/2001)
27 AFFIDAVIT of John Loconte in opposition to [18−1] motion for preliminary injunction pursuant to Rule 65 of the FRCP. (tp) (Entered: 11/08/2001)
28 AFFIDAVIT of Thomas Pugh Jr. in opposition to [27−1] affidavit. (kw) (Entered: 11/16/2001)
29 Transcript of record of proceedings before Judge Gerard E. Lynch on 10/5/01. (kw) (Entered: 12/06/2001)
30 OPINION and ORDER #86413, that for the reasons set forth, the Court is denying [18−1] motion for preliminary injunction pursuant to Rule 65 of the FRCP, and plaintiffs' claims are dismissed in their entirety. ( signed by Judge Gerard E. Lynch ); Copies mailed. (tp) (Entered: 01/03/2002)
Case closed. (tp) (Entered: 01/03/2002)
31 NOTICE OF APPEAL by Thomas Pugh Jr.; from [30−1] order . Copies of notice of appeal mailed to Attorney(s) of Record: Attorney Generals Office for the State of New York. *(I.F.P. REVOKED 9/27/00)* *($105.00 APPEAL FILING FEE DUE)*. (dt) (Entered: 01/31/2002)
Notice of appeal and certified copy of docket to USCA: [31−1] appeal by Thomas Pugh Jr. ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 01/31/2002)
32 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: [31−1] appeal by Thomas Pugh Jr. (dt) (Entered: 01/31/2002)
by Thomas Pugh Jr., Indexed record on appeal files sent to the U.S.C.A.. (dt) (Entered: 01/31/2002)
33 MEMORANDUM OF LAW by Thomas Pugh Jr., Edward Hamil, Clay Chatin in support of Rule 60 motion vacating the January 3, 2002 Opinion and Order. (yv) (Entered: 03/20/2002)
34 NOTICE OF MOTION by Thomas Pugh Jr., Edward Hamil, Clay Chatin pursuant to FRCP 60(b) for an Order indicating that the Court is likely to grant plaintiff's Rule 60(b) motion, allowing plaintiffs to move the Court of Appeals for the Second Circuit for a remand, returning jurisdiction to the District Court , an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action . Return date not indicated. (yv) (Entered: 03/20/2002)
35 DECLARATION of J. Andrew Kent by Thomas Pugh Jr., Edward Hamil, Clay Chatin in support Re: Rule 60 motion of Thomas Pugh, Edward Hamil and Clay Chatin. (yv) (Entered: 03/20/2002)
36 Memo−Endorsement on letter addressed to Judge Lynch from Leonard A. Cohen, dated 3/26/02; granting counsel for defts' request for an extension to respond until 4/9/02 to [34−1] motion pursuant to FRCP 60(b) for an Order indicating that the Court is likely to grant plaintiff's Rule 60(b) motion, allowing plaintiffs to move the Court of Appeals for the Second Circuit for a remand, returning jurisdiction to the District Court; reset to 4/9/02 for [34−2] motion an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action . ( signed by Judge Gerard E. Lynch ); Copies mailed. (sn) (Entered: 04/04/2002)

04/12/2002
04/12/2002
04/22/2002 04/30/2002 05/01/2002
05/01/2002
05/01/2002
06/28/2002 10/10/2002

37 MEMORANDUM OF LAW by Glen Goord, William Mazzuca, Ada Perez, Lewis Goidel, T. Eagen, Warith Deen Umar in opposition to [34−1] motion pursuant to FRCP 60(b) for an Order indicating that the Court is likely to grant plaintiff's Rule 60(b) motion, allowing plaintiffs to move the Court of Appeals for the Second Circuit for a remand, returning jurisdiction to the District Court, [34−2] motion an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action . (cd) (Entered: 04/17/2002)
38 AFFIDAVIT of Leonard Cohen by Glen Goord, William Mazzuca, Ada Perez, Lewis Goidel, T. Eagen, Warith Deen Umar in opposition to [34−1] motion pursuant to FRCP 60(b) for an Order indicating that the Court is likely to grant plaintiff's Rule 60(b) motion, allowing plaintiffs to move the Court of Appeals for the Second Circuit for a remand, returning jurisdiction to the District Court, [34−2] motion an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action . (cd) (Entered: 04/17/2002)
39 NOTICE of attorney appearance for Thomas Pugh Jr., Edward Hamil, Clay Chatin by James Andrew Kent. (djc) (Entered: 04/30/2002)
40 REPLY MEMORANDUM by Thomas Pugh Jr., Errol Ennis, Edward Hamil, Clay Chatin in support of re: [34−2] motion an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action (ae) (Entered: 05/02/2002)
41 MEMORANDUM OF LAW by Glen Goord, William Mazzuca, Ada Perez, Lewis Goidel, T. Eagen, Warith Deen Umar in opposition to [34−1] motion pursuant to FRCP 60(b) for an Order indicating that the Court is likely to grant plaintiff's Rule 60(b) motion, allowing plaintiffs to move the Court of Appeals for the Second Circuit for a remand, returning jurisdiction to the District Court, [34−2] motion an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action . (pl) (Entered: 05/03/2002)
42 REPLY MEMORANDUM by Thomas Pugh Jr., Errol Ennis, Edward Hamil, Clay Chatin in further support of re: [34−1] motion pursuant to FRCP 60(b) for an Order indicating that the Court is likely to grant plaintiff's Rule 60(b) motion, allowing plaintiffs to move the Court of Appeals for the Second Circuit for a remand, returning jurisdiction to the District Court, [34−2] motion an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action (pl) (Entered: 05/03/2002)
43 DECLARATION of J.Andrew Kent by Thomas Pugh Jr., Errol Ennis, Edward Hamil, Clay Chatin in support of Re: [34−1] motion pursuant to FRCP 60(b) for an Order indicating that the Court is likely to grant plaintiff's Rule 60(b) motion, allowing plaintiffs to move the Court of Appeals for the Second Circuit for a remand, returning jurisdiction to the District Court, [34−2] motion an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action . (pl) (Entered: 05/03/2002)
USCA appeal fees received $105.00 6/20/02 on receipt # E 0442608. U.S.C.A. # 02−30. (dt) (Entered: 06/28/2002)
45 MEMORANDUM OPINION # 87556, denying [34−1] motion pursuant to FRCP 60(b) for an Order indicating that the Court is likely to grant plaintiff's Rule 60(b) motion, allowing plaintiffs to move the Court of Appeals for the Second Circuit for a remand, returning jurisdiction to the District Court, denying [34−2] motion an Order setting aside the factual findings and conclusions of law contained in the Court's January 3, 2002 Opinion and Order which denied plaintiffs' motion for a preliminary injunction and dismissed this action . ( signed by Judge Gerard E. Lynch ); (yv) (Entered: 10/17/2002)

10/16/2002 10/16/2002 11/26/2002 12/16/2002 01/14/2003 01/16/2003 04/28/2003 11/17/2003 11/19/2003 12/08/2003
01/20/2004
01/20/2004
03/26/2004

44 AMENDED NOTICE OF APPEAL by Thomas Pugh Jr., Clay Chatin, Edward Hamil ; from ; the Decision of October 3, 2002 not entered in this action as of yet, amending [31−1] appeal from . Copies of notice of appeal mailed to Attorney(s) of Record: Leonard Arthur Cohen, Esq. (dt) (Entered: 10/16/2002)
Notice of appeal and certified copy of docket to USCA: [44−1] appeal by Edward Hamil, Clay Chatin, Thomas Pugh Jr. ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 10/16/2002)
USCA Case Number Re: [31−1] appeal by Thomas Pugh Jr., [44−1] appeal by Edward Hamil, Clay Chatin, Thomas Pugh Jr. USCA NUMBER: 02−30. (dt) (Entered: 11/26/2002)
USCA appeal fees received $105.00 12/16/02 on receipt # E 0459520. (dt) (Entered: 12/16/2002)
46 Filed notice of 1st. suppl. transmittal of R.O.A. [31−1] appeal by Thomas Pugh Jr., [44−1] appeal by Edward Hamil, Clay Chatin, Thomas Pugh Jr. (pr) (Entered: 01/14/2003)
by Thomas Pugh Jr., Edward Hamil and Clay Chatin, 1st Supplemental indexed record on appeal files (02−0030) sent to the U.S.C.A. to Frank Perez. (dt) (Entered: 01/16/2003)
47 NOTICE of Finling of Amended Notices of Appeal by Edward Hamil, Clay Chatin . (cd) (Entered: 04/29/2003)
Record on appeal file (02−0030) returned from U.S. Court of Appeals: [31−1] appeal by Thomas Pugh Jr. (pr) (Entered: 11/17/2003)
48 MANDATE OF USCA (certified copy) Re: [31−1] appeal by Thomas Pugh Jr., [44−1] appeal by Edward Hamil, Clay Chatin, Thomas Pugh Jr. ORDERED ADJUDGED AND DECREED that the judgment of the district court is VACATED AND REMANDED in accordance with the opinion of this court. ISSUED AS MANDATE 11/6/03, 02−0030. MACKECHNIE, CLERK, USCA. (pr) (Entered: 11/21/2003)
49 CASE MANAGEMENT PLAN: The case is to be tried by a jury; Joinder of additional parties must be accomplished by 1/5/04; amended complaint may be filed until 1/5/04; all fact discovery is to be completed by 5/14/04; first request for production of documents, if any, are to be served by 1/5/04; interrogatories pursuant to Local Rule 33.3(a) of the Civil Rules of the Southern District of New York to be served by 3/1/04; depositions are to be completed by 4/19/04; experts, if any, are to be designated by 4/5/04, and experts' reports exchanged no later than 4/5/04; requests to admit, if any, are to be served no later than 4/23/04; next case management conference scheduled for 5/21/04 at 10:30 A.M. (Signed by Judge Gerard E. Lynch on 12/2/03) (sac, ) (Entered: 12/23/2003)
50 SECOND AMENDED COMPLAINT amending 4 30/60 Days Amended Complaint against Jimmie Harris, John Nuttal, Frank Headley, John R. LoConte, Mark Lenard, Muhammad Salih Ahmed, Ismail Abdur Rahim, Glen Goord, William Mazzuca, Ada Perez, Warith Deen Umar.Document filed by Clay Chatin, Edward Hamil, Thomas Pugh Jr. Related document: 4 30/60 Days Amended Complaint filed by Errol Ennis, Clay Chatin, Edward Hamil, Thomas Pugh.(sac, ) (Entered: 01/26/2004)
Set Answer Due Date re: 50 Amended Complaint, as to Muhammad Salih Ahmed answer due on 1/30/2004; Glen Goord answer due on 1/30/2004; Jimmie Harris answer due on 1/30/2004; Frank Headley answer due on 1/30/2004; Mark Lenard answer due on 1/30/2004; John R. LoConte answer due on 1/30/2004; William Mazzuca answer due on 1/30/2004; John Nuttal answer due on 1/30/2004; Ada Perez answer due on 1/30/2004; Ismail Abdur Rahim answer due on 1/30/2004; Warith Deen Umar answer due on 1/30/2004. (sac, ) (Entered: 01/26/2004)
1st Supplemental ROA Returned. 1st Supplemental Indexed record on Appeal Files for 31 Notice of Appeal filed by Thomas Pugh, 44 Amended Notice of Appeal, filed by Clay Chatin, Edward Hamil, Thomas Pugh USCA Case Number 02−0030, returned from the U.S. Court of Appeals. (dt, ) (Entered: 03/29/2004)

04/14/2004 04/14/2004
04/19/2004 04/19/2004 04/19/2004 04/19/2004 04/19/2004 04/19/2004 04/19/2004 07/27/2004 08/10/2004 08/30/2004 09/03/2004 09/15/2004 09/27/2004

51 Civil Case Management Paln Amended Answer due by 4/16/2004. Deposition due by 7/16/2004. Discovery due by 8/16/2004. Case Management Conference set for 8/16/2004 04:30 PM before Judge Gerard E. Lynch. (Signed by Judge Gerard E. Lynch on 4/1/2004) (jsa, ) (Entered: 04/16/2004)
Set Answer Due Date re: 50 Amended Complaint, as to Muhammad Salih Ahmed answer due on 4/26/2004; T. Eagen answer due on 4/26/2004; Lewis Goidel answer due on 4/16/2004; Glen Goord answer due on 4/16/2004; Jimmie Harris answer due on 4/16/2004; Frank Headley answer due on 4/16/2004; Mark Lenard answer due on 4/16/2004; John R. LoConte answer due on 4/16/2004; William Mazzuca answer due on 4/16/2004; John Nuttal answer due on 4/16/2004; Ada Perez answer due on 4/16/2004; Ismail Abdur Rahim answer due on 4/16/2004; Warith Deen Umar answer due on 4/16/2004. (jsa, ) (Entered: 04/16/2004)
52 AFFIDAVIT OF SERVICE of Summons and Amended Complaint as to the New York State Department of Correctional Services. Service was accepted by William M. Gonzalez. Document filed by Clay Chatin, Edward Hamil, Thomas Pugh Jr. (db, ) (Entered: 04/20/2004)
53 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,. John Nuttal served on 3/19/2004, answer due 4/8/2004. Service was accepted by Maryann Richards. Document filed by Clay Chatin ; Errol Ennis ; Edward Hamil ; Thomas Pugh Jr. (yv, ) (Entered: 04/20/2004)
54 AFFIDAVIT OF SERVICE. Muhammad Salih Ahmed served on 3/5/2004, answer due 3/25/2004. Service was accepted by Helen Denno, Records Mgr.. Document filed by Clay Chatin ; Edward Hamil ; Thomas Pugh Jr.. (dle, ) (Entered: 04/20/2004)
55 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,. Jimmie Harris served on 3/30/2004, answer due 4/19/2004. Service was accepted by Stephen Johnson. Document filed by Clay Chatin ; Edward Hamil ; Thomas Pugh Jr.. (dle, ) (Entered: 04/20/2004)
56 AFFIDAVIT OF SERVICE of Summons and Amended Complaint. Mark Lenard served on 3/19/2004, answer due 4/8/2004. Service was accepted by Joanne Jergens. Document filed by Clay Chatin ; Edward Hamil ; Thomas Pugh Jr. (kw, ) (Entered: 04/20/2004)
57 AFFIDAVIT OF SERVICE of Summons and Amended Complaint. John R. LoConte served on 2/24/2004, answer due 3/15/2004. Service was accepted by William M. Gonzalez. Document filed by Clay Chatin ; Edward Hamil ; Thomas Pugh Jr. (jco, ) (Entered: 04/20/2004)
58 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,. Ismail Abdur Rahim served on 3/19/2004, answer due 4/8/2004. Service was accepted by Joanne Jergens. Document filed by Clay Chatin ; Errol Ennis ; Edward Hamil ; Thomas Pugh Jr.. (pl, ) (Entered: 04/21/2004)
59 NOTICE of Appearance by Caroline M. Flintoft on behalf of Clay Chatin, Thomas Pugh Jr. (sac, ) (Entered: 07/28/2004)
60 ENDORSED LETTER addressed to Judge Lynch from Michael Keane dated 7/28/04: granting an extension of time until 9/16/04 to conclude all discovery. The 8/16 conference is adjourned until 9/17/04 at 3:30 pm. (Signed by Judge Gerard E. Lynch on 8/3/04) (cd, ) (Entered: 08/12/2004)
61 ANSWER to Second Amended Complaint. Document filed by Glen Goord, Jimmie Harris, Frank Headley, Mark Lenard, William Mazzuca, John Nuttal, Ada Perez. Related document: 50 Amended Complaint, filed by Clay Chatin, Edward Hamil, Thomas Pugh.(sac, ) (Entered: 09/01/2004)
62 NOTICE OF CASE REASSIGNMENT to Judge Kenneth M. Karas. Judge Gerard E. Lynch no longer assigned to the case. (laq, ) (Entered: 09/15/2004)
Mailed notice to the attorney(s) of record. (laq, ) (Entered: 09/15/2004)
63 SCHEDULING ORDER: Status Conference set for 11/5/2004 10:00 AM before Judge Kenneth M. Karas. (Signed by Judge Kenneth M. Karas on 9/20/04) Copies mailed by chambers.(pl, ) (Entered: 09/30/2004)

10/13/2004
10/13/2004 10/27/2004 11/01/2004 11/05/2004 11/10/2004 11/15/2004 12/09/2004 12/17/2004
12/17/2004 12/23/2004 12/23/2004
01/03/2005 01/04/2005
01/04/2005

64 ORDER, that the NYS Office of the Attorney General is relieved as counsel for deft Umar and that all papers shall be served on deft at 520 Feura Bush Road Glenmont, NY 12077 (518) 475−0437. It is further ordreed tha the Office of the State Atty Genl provide a copy of this order to Mr. Umar at the above address. (Signed by Judge Kenneth M. Karas on 10/5/04) copies sent by chambers.(cd, ) (Entered: 10/15/2004)
65 STATE DEFTS' ORDER TO DEPOSE INMATES, Thomas Pugh and Clay Chatin, as further set forth in this document. (Signed by Judge Kenneth M. Karas on 10/5/04) (cd, ) (Entered: 10/15/2004)
66 NOTICE of Appearance by Claire E. Coleman on behalf of Clay Chatin, Thomas Pugh Jr. (jmi, ) (Entered: 10/28/2004)
67 SCHEDULING ORDER (DUPLICATE ORIGINAL): that state defendants shall complete production of documents by 9/24/04; Status Conference set for 11/5/2004 10:00 AM before Judge Kenneth M. Karas. Additional deadlines are as set forth in this Order. (Signed by Judge Kenneth M. Karas on 9/20/04) (pl, ) (Entered: 11/03/2004)
MEMORANDUM TO THE DOCKET CLERK: Discovery conference held. Mr. Walsh will be filing a notice of appearance for defendant Loconte. Further conference set for 12/10/04 at 3:30 pm (yv, ) (Entered: 11/12/2004)
68 ORDER: Status Conference set for 12/10/2004 at 3:30 PM before Judge Kenneth M. Karas. (Signed by Judge Kenneth M. Karas on 11/10/04) (sac, ) (Entered: 11/12/2004)
69 NOTICE of Appearance by Mark T. Walsh on behalf of John R. LoConte (jco, ) (Entered: 11/18/2004)
70 ORDER; Plaintiffs shall submit a response, in the form of a letter brief of no more than 3 pages, by the close of business on 12/8/04. (Signed by Judge Kenneth M. Karas on 12/2/04) (sac, ) (Entered: 12/10/2004)
71 ORDER Plaintiffs shall submit for in camera review documentation regarding the basis for Plaintiff Pugh's assertion, in his deposition, of the Fifth Amendment privilege against self incrimination by 12/17/04. Defendants shall submit for in camera review the requested "personal files" and "personal files" by 12/17/04. Plaintiffs shall submit a letter outlining why each question raised in their rebuttal expert report is in response to the amended expert report or deposition of Defendants' expert Neguin Yavari by 12/17/04. Defendant shall respond by 12/27/04. A conference is scheduled for 1/19/05 at 2:30PM. Responses due by 12/27/2004 (Signed by Judge Kenneth M. Karas on 12/15/04) (dfe, ) (Entered: 12/21/2004)
72 AFFIDAVIT of Caroline M. Flintoft. Document filed by Errol Ennis, Edward Hamil, Thomas Pugh Jr.. (jmi, ) (Entered: 12/23/2004)
73 ORDER; defts request to compel pltff Pugh to respond to all questions is denied. (Signed by Judge Kenneth M. Karas on 12/21/2004) (jp, ) (Entered: 12/27/2004)
74 ENDORSED LETTER addressed to Judge Karas from Caroline Flintoft dated 12/17/2004 re: counsel requests permission to withdraw as counsel for pltff. The application will be held in abeyance to permit counsel to provide greater detail to the specific efforts to contact Mr. Hamil. (Signed by Judge Kenneth M. Karas on 12/21/2004) (jp, ) (Entered: 12/27/2004)
75 ANSWER to Second Amended Complaint. Document filed by John R. LoConte. Related document: 50 Amended Complaint, filed by Clay Chatin, Edward Hamil, Thomas Pugh, Jr.(db, ) (Entered: 01/06/2005)
77 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Claire E. Coleman dated 12/29/04 re: Counsel for plaintiff writes to request an opportunity to reply in writing. Alternatively, plaintiffs request the opportunity to address defendants' assertions and arguments at the January 19 conference. Plaintiffs are given until 1/7/05 to file any reply to defendants' 12/23 and 27 letters regarding plaintiffs' expert rebuttal report. So Ordered. (Signed by Judge Kenneth M. Karas on 12/30/04) (jco, ) (Entered: 01/07/2005)
78 NOTICE of Constitutional Challenge; pursuant to Rule 24(c) of the FRCP, dft LoConte notifies the court of his constitutional challenge to theReligious Land Use and Institutional Persons Act of 2000. Document filed by John R. LoConte. (dle, )

01/06/2005 02/02/2005 02/09/2005 02/18/2005 03/01/2005 03/01/2005 03/07/2005 03/07/2005
03/07/2005
03/21/2005
04/22/2005 05/04/2005 06/01/2005 07/01/2005
07/01/2005 08/01/2005

(Entered: 01/10/2005)
76 TRANSCRIPT of proceedings held on 12/13/04 (jog, ) (Entered: 01/06/2005)
79 ANSWER to Amended Complaint. Document filed by Muhammad Salih Ahmed, Ismail Abdur Rahim. Related document: 50 Amended Complaint, filed by Clay Chatin,, Edward Hamil,, Thomas Pugh, Jr.(kw, ) (Entered: 02/07/2005)
80 ORDER; the application to preclude the expert report of Sheikh Mohammad is denied. (Signed by Judge Kenneth M. Karas on 2/3/05) (sac, ) (Entered: 02/11/2005)
81 ANSWER to Amended Complaint. Document filed by Warith Deen Umar. Related document: 50 Amended Complaint, filed by Clay Chatin,, Edward Hamil,, Thomas Pugh, Jr..(dle, ) (Entered: 02/24/2005)
82 NOTICE of Appearance by Claire Elise Coleman on behalf of Thomas Pugh, Jr, Edward Hamil, Clay Chatin. (db, ) (Entered: 03/07/2005)
83 NOTICE of Appearance by Caroline Marie Flintoft on behalf of Thomas Pugh, Jr, Edward Hamil, Clay Chatin. (db, ) (Entered: 03/07/2005)
84 ORDER: pursuant to Local Rule 1.4, Claire Coleman and Caroline M. Flintoft are substituted as counsel of record for plaintiffs in place of James Andrew Kent. (Signed by Judge Kenneth M. Karas on 3/2/05) (db, ) (Entered: 03/09/2005)
85 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Michael Keene dated 3/1/05 re: defendants application but not made on behalf of defendant Imam Umar or Lo Cante, is GRANTED. Those defendants have until 3/9/05 to submit the date−stamped documents, and any briefing and plaintiffs' response is due 3/21/05. (Signed by Judge Kenneth M. Karas on 3/2/05) (db, ) (Entered: 03/10/2005)
86 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Caroline M. Flintoft dated 3/1/05 re: Caroline M. Flintoft and Ms. Coleman request that the Court withdraw their motion to withdraw as counsel for plaintiff Edward Hamil. Application GRANTED. (Signed by Judge Kenneth M. Karas on 3/2/05) (db, ) (Entered: 03/10/2005)
87 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Mark Walsh dated 3/11/05 re: counsel for dfts requests to serve their sur rebuttal report by 4/29/05. Dfts are given until 4/29/05 to serve their sur rebuttal report. Plaintiff will have until 5/27/05 to depose this expert. (Signed by Judge Kenneth M. Karas on 3/16/05) (dle, ) (Entered: 03/23/2005)
88 ORDER; that the application to modify the protective order governing the disclosure of certain documents in this case is granted in part and denied in part. (Signed by Judge Kenneth M. Karas on 4/15/05) (pl, ) (Entered: 04/28/2005)
89 TRANSCRIPT of proceedings held on 4/19/05 before Judge Kenneth M. Karas. (lma, ) (Entered: 05/04/2005)
90 ENDORSED LETTER addressed to Judge Karas from Claire Coleman dated 5/26/05: plntf application to depose defts' sur−rebuttal expert Ms. Yavari on 6/1/05 is granted. (Signed by Judge Kenneth M. Karas on 5/27/05) (cd, ) (Entered: 06/06/2005)
91 ORDER; counsel who will try the case shall appear for a status conference on August 16, 2005 at 11:30 a.m. in the United States Federal Courthouse, 500 Pearl Street, NY, NY, Courtroom 21D.... Counsel for plaintiff shall notify all parties of this conference. (Signed by Judge Kenneth M. Karas on 6/30/05) (djc, ) (Entered: 07/05/2005)
Set Deadlines/Hearings: Status Conference set for 8/16/2005 11:30 AM before Judge Kenneth M. Karas. (djc, ) (Entered: 07/05/2005)
92 ORDER; the Court impose a final discovery deadline in this action of 8/15/05 is denied. The parties should be prepared to discuss these issues at the 8/16/05 conference. In addition, the parties should continue to diligently pursue the remaining discovery, as the Court intends to set an expeditious deadline. (Signed by Judge Kenneth M. Karas on 7/29/05) (sac, ) (Entered: 08/02/2005)

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93 ENDORSED LETTER addressed to Judge Karas from Claire E. Coleman dated 07/13/05 re: counsel requetsts that the Court impose a final discovey deadline in this action of August 15, 2005...; Defendants are instructed to respond to this letter by July 26, 2005. (Signed by Judge Kenneth M. Karas on 7/20/05) (djc, ) (Entered: 08/15/2005)
95 ORDER; of all the documents submitted for in camera review, the Court concludes that the following documents are discoverable B1, B2, and B5. The remaining documents need to be turned over for the reasons stated on the record. The parties shall update the Court by 8/30/05, regarding the subpeonas. Discovery shall close by 9/30/05. Pre−motion letters are due 9/30/05, responses are due 10/7/05. A conference is scheduled for 10/13/05 at 12:00pm. (Signed by Judge Kenneth M. Karas on 8/16/05) (kco, ) (Entered: 08/31/2005)
96 ENDORSED LETTER addressed to Judge Karas from Sarah E. Light dated 9/9/05 re: conference is rescheduled to October 19, 2005 at 4:30 p.m.. (Signed by Judge Kenneth M. Karas on 9/19/05) (djc, ) (Entered: 09/21/2005)
97 ORDER as discussed in the conference call on 9/15/05, Defendant's application for production of the document used to refresh Mr. Hamil's recollection is denied without prejudice. Defendant may seek the production of this document by letter submitted on or before 9/19/05. Plaintiff shall respond on or before 9/22/05. Parties are granted permission to submit their letters by fax. So Ordered. (Signed by Judge Kenneth M. Karas on 9/16/05) (jco, ) (Entered: 09/23/2005)
98 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Claire E. Coleman dated 9/20/2005 re: plaintiffs write to respectfully request an extension of the page limit of plaintiffs' response to defendants' 9/9/2005 letters from 3 pages to 5 pages. ENDORSEMENT: Plaintiff's request to submit a 5 page letter in response to defendants' 9/19 letters is granted. Plaintiffs may also submit the writing at issue to the Court for in camera reviews. So Ordered. (Signed by Judge Kenneth M. Karas on 9/30/2005) (lb, ) (Entered: 10/03/2005)
99 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Claire E. Coleman dated 10/10/2005 re: to request that, if the Court approves the proposed redactions, the Court so endorse this letter.ENDORSEMENT: The redacted version of the document to be produce is accaptable. An unredacted copy was submitted to the Court as part of plaintiffs' motion papers and will be filed under seal. (Signed by Judge Kenneth M. Karas on 10/11/2005) (jmi, ) (Entered: 10/14/2005)
100 ENDORSED LETTER: addressed to Judge Kenneth M. Karas from Michael Keane dated 9/29/05 re: request that the Court permit the deposition of the Al−Khoei Islamic Center to take place on 10/11/05. ENDORSEMENT: So Ordered. (Signed by Judge Kenneth M. Karas on 10/18/05) (js, ) (Entered: 10/18/2005)
101 ORDER: Plaintiff's counsel is directed to turn the document over to defendants' counsel. Even if Hamill's review of the document was before testifying, the Court finds that the letter is related to both Hamil's credibility and important matters in the case. Therefore, the Court would exercise its discretion under Fed. R. Evid 612 (2) to order the letter turned over in the interests of justice. To accommodate Plaintiff's concern regarding mental impressions, conclusions, opinions, or legal theories, Plaintiff's counsel has until 10/12/05 to submit a proposed redacted version of the document to the Court. Defendants' request for other documents not reviewed by plaintiff Hamil during the break in his deposition is DENIED, as there is no support in Fed. R. 612 for their production. (Signed by Judge Kenneth M. Karas on 10/4/05) (js, ) (Entered: 10/18/2005)
MEMORANDUM TO THE DOCKET CLERK: pre−motion conference held before Judge Kenneth M. Karas on 10/19/05. (db, ) (Entered: 10/24/2005)
102 NOTICE of Appearance by Aaron Olshina Lavine on behalf of Thomas Pugh, Jr, Edward Hamil, Clay Chatin (db, ) (Entered: 11/04/2005)
103 ENDORSED LETTER: : addressed to Judge Kenneth M. Karas from Mark T. Walsh dated 12/19/2005. ENDORSEMENT: Defendant LoConte may submit a memo of law no longer than 50 pages. (Signed by Judge Kenneth M. Karas on 12/19/2005) (lb, ) (Entered: 12/21/2005)

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104 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Michael J. Keane dated 12/20/05. ENDORSEMENT: The DOCS defendants represented by the State Attorney General's office are given until 1/4/06 to file their motion for summary judgment. Plaintiffs are given until 3/6/06 to respond. Defendants will be given until 4/6/06 to reply. (Signed by Judge Kenneth M. Karas on 12/21/05) (js, ) (Entered: 01/10/2006)
105 ENDORSED LETTER: addressed to Judge Kenneth M. Karas from Mark T. Walsh dated 12/22/2005 re: we respectfully request that the Court consider this letter a request for similar extension with the same response and reply time set forth in the Your Honor's 12/21/2005 Order. ENDORSEMENT: Denied. (Signed by Judge Kenneth M. Karas on 12/22/2005) (lb, ) (Entered: 01/10/2006)
106 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Aaron O. Lavine dated 12/23/05. ENDORSEMENT: Plaintiff may respond to the summary judgment motion with one brief. SO ORDERED. (Signed by Judge Kenneth M. Karas on 1/9/06) (kco, ) (Entered: 01/11/2006)
107 MOTION for an order permitting the United States of America to Intervene in this action.. (jp, ) (Entered: 01/20/2006)
108 MEMORANDUM OF LAW in Support re: 107 MOTION to Intervene. (jp, ) (Entered: 01/20/2006)
109 Intervenor The United States of America's Memorandum of law in defense of the constitutionality of the religious land use and institutionalized persons act of 2000. (jp, ) (Entered: 01/20/2006)
110 Intervenor the United States of America's Appendix of unpublished opinions and legislative history cited in its Memorandum of law in defense of the constitutionality of the religious land use and institutionalized persons act of 2000. (jp, ) (Entered: 01/20/2006)
111 ENDORSED LETTER addressed to Judge Karas from Michael J. Garcia dated 1/17/06 re: The Government's request to file a 32−page brief in response to Defendants' summary judgment motions is Granted.. (Signed by Judge Kenneth M. Karas on 1/19/06) (djc, ) (Entered: 01/25/2006)
112 ENDORSED LETTER addressed to Judge Kenneth M. Karas from Aaron Lavine dated 2/23/06 re: counsel for plaintiffs requests 90 pages for their memorandum of law. Plaintiffs are given 90 pages for their response to dfts' motions. Next time, however, counsel should either mail such a request or obtain permission prior to sending the letter via fax. (Signed by Judge Kenneth M. Karas on 2/23/06) (dle, ) (Entered: 02/28/2006)
113 MOTION for an order purs. to FRCP Rule 56 granting him summary judgment dismissing the complaint in its entirety and for an order declaring that t he Religious Land Use and Institutionalized Persons Act, 42 USC 2000cc is unconstitutional as applied under the Spending Clause of the United State Constitution and on its face under the Spending Clause, the Commerce Clause and the Tenth Amendment of the United States Constitution. Document filed by John R. LoConte. (dle, ) (Entered: 04/07/2006)
114 AFFIDAVIT of John R. LoConte in Support re: 113 MOTION for Summary Judgment.. Document filed by John R. LoConte. (dle, ) (Entered: 04/07/2006)
115 MEMORANDUM OF LAW in Support re: 113 MOTION for Summary Judgment. Document filed by John R. LoConte. (dle, ) (Entered: 04/07/2006)
116 REPLY AFFIDAVIT of Mark T. Walsh in Support re: 113 MOTION for Summary Judgment.. Document filed by John R. LoConte. (dle, ) (Entered: 04/07/2006)
117 REPLY MEMORANDUM OF LAW in Support re: 113 MOTION for Summary Judgment.. Document filed by John R. LoConte. (dle, ) (Entered: 04/07/2006)
118 APPENDIX of Unreported Cases Cited in dft LoConte's memorandum of law and reply memorandum of law in support of his motion for summary judgment. Document filed by John R. LoConte.(dle, ) (Entered: 04/07/2006)

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119 RULE 56.1 STATEMENT. Document filed by John R. LoConte. (dle, ) (Entered: 04/07/2006)
120 AFFIDAVIT of Mark T. Walsh in Support re: 113 MOTION for Summary Judgment. Document filed by John R. LoConte. (dle, ) (Entered: 04/07/2006)
123 MEMORANDUM OF LAW in Support re: 122 MOTION for Summary Judgment.. Document filed by Glen Goord, Jimmie Harris, John Nuttal, Frank Headley, Mark Lenard, Muhammad Salih Ahmed, William Mazzuca, Ada Perez. (dle, ) (Entered: 04/12/2006)
124 RULE 56.1 STATEMENT. Document filed by , Glen Goord, Jimmie Harris, John Nuttal, Frank Headley, , , Muhammad Salih Ahmed, , William Mazzuca, Ada Perez. (dle, ) Modified on 4/12/2006 (dle, ). (Entered: 04/12/2006)
125 MEMORANDUM OF LAW in Opposition re: 122 MOTION for Summary Judgment.. Document filed by Thomas Pugh, Jr, Edward Hamil, Clay Chatin. (dle, ) (Entered: 04/12/2006)
126 Response TO 124 Rule 56.1 Statement. Document filed by Thomas Pugh, Jr, Edward Hamil, Clay Chatin. (dle, ) (Entered: 04/12/2006)
127 DECLARATION of Clay Chatin in Opposition re: 113 MOTION for Summary Judgment., 122 MOTION for Summary Judgment.. Document filed by Clay Chatin. (djc, ) (Entered: 04/12/2006)
128 DECLARATION of Thomas Pugh, Jr. in Opposition re: 113 MOTION for Summary Judgment., 122 MOTION for Summary Judgment.. Document filed by Thomas Pugh, Jr. (djc, ) (Entered: 04/12/2006)
129 DECLARATION of Claire E. Coleman in Opposition re: 113 MOTION for Summary Judgment 122 MOTION for Summary Judgment; (volume one of Four: Exhibits 1−11) (djc, ) (Entered: 04/12/2006)
121 REPLY MEMORANDUM OF LAW in Support of State Dft's motion for summary judgment. Document filed by Glen Goord. (dle, ) (Entered: 04/10/2006)
122 MOTION for an order purs. to Rule 56 of the FRCP granting dfts summary judgment against plaintiffs on the grounds that no genuine issue of material fact remains for trial and dfts are entitled to judgment as a matter of law on each of plaintiffs' claims. Document filed by Glen Goord, Jimmie Harris, John Nuttal, Frank Headley, Mark Lenard, Muhammad Salih Ahmed, William Mazzuca, Ada Perez. (dle, ) (Entered: 04/12/2006)
130 ORDER that the United States of America's motion to intervene which is unopposed is granted. The clerk of the court is directed to terminate the motion (doc. no. 107). (Signed by Judge Kenneth M. Karas on 4/27/06) (dle, ) (Entered: 05/02/2006)
131 ORDER, pursuant to Local Rule 1.4, that Aaron O. Lavine is substituted as attorney of record and attorney to be noticed for plaintiffs Thomas Pugh and Clay Chatin, in place of Claire E. Coleman and Caroline M. Flintoft. SO ORDERED (Signed by Judge Kenneth M. Karas on 6/18/2007) (jmi) (Entered: 06/26/2007)
132 NOTICE OF CASE REASSIGNMENT to Judge Richard J. Sullivan. Judge Kenneth M. Karas is no longer assigned to the case. (jeh) (Entered: 09/10/2007)
Mailed notice to the attorney(s) of record. (jeh) (Entered: 09/10/2007)
Received returned mail re: 132 Notice of Case Assignment/Reassignment. Mail was addressed to Errol Ennis of Buffalo Federal Detention Facility at 4250 Federal Drive, 24−507499, Batavia, NY 14020 and was returned for the following reason(s): attempted − not known. (tve) (Entered: 11/15/2007)
133 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Aaron O. Lavine dated 10/1/07 re: Counsel for plaintiff writes to bring to the Court's attention the Second Circuit decision issued in Orafan, in which the Circuit vacated and remanded the district court's grant of summary judgment to defendants, finding that disputed issues of material fact preclude summary judgment on both plaintiff's RLUIPA claims and their Equal Protection claims. In light of the Circuit's decision, defendants'

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summary judgment motions in Pugh are no longer sustainable and should be withdrawn, or failing that, promptly denied. Defense counsel has been notified about the delivery of this letter to give them an opportunity voluntarily withdraw their motions. Counsel suggests that this case should be brought to a trial on the merits at the earliest available date. Plaintiff's request a status conference during the week of 10/1/07, to discuss the Pugh, if possible, to pick a trial date. ENDORSEMENT: Defendants are instructed to respond to Plaintiffs' letter or, in the alternative, to withdraw their motion for summary judgment by October 9, 2007. (Signed by Judge Richard J. Sullivan on 10/2/07) (tro) (Entered: 10/05/2007)
134 NOTICE OF APPEARANCE by Amy E. Howlett on behalf of Thomas Pugh, Jr, Edward Hamil, Clay Chatin (djc) (Entered: 10/05/2007)
135 ORDER: counsel who will try this case are to appear for a status conference on 10/29/2007 at 3:00 PM in Courtroom 21C, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Sullivan. Mr. Walsh and Mr. Umar will be permitted to appear by telephone. (Signed by Judge Richard J. Sullivan on 10/22/07) (kco) (Entered: 10/29/2007)
136 ORDER: Defendants shall file and serve their supplemental materials no later than Friday, November 9, 2007. Any response from the plaintiffs and/or the United States shall be filed and served not later than Friday, November 16, 2007. Responses due by 11/16/2007. (Signed by Judge Richard J. Sullivan on 10/29/07) (tro) (Entered: 11/01/2007)
137 Appendix of Unreported Cases Cited in Defendant LoConte's Supplemental Memorandum of Law in Support of his Motion for Summary Judgment. (djc) (Entered: 11/14/2007)
138 MEMORANDUM OF LAW in Support of his Motion for Summary Judgment. Document filed by John R. LoConte. (djc) (Entered: 11/14/2007)
139 AFFIDAVIT OF SERVICE of Supplemental Memorandum of alw on Behalf of Defendant John LoConte in Support of his Motion for summary Judgment and appendix of unreported Cases Cited in Defendant LoConte's Supplemental Memorandum of Law in Support of his Motion for Summary Judgment served on Aaron O. Lavie,Esq., Warren Deen Umar, Michael Keane, Ex. and Sarah Light, Esq. on 11/8/07. Service was made by Federal Express Overnight. (djc) (Entered: 11/15/2007)
140 DECLARATION of Michael J. Keane. (djc) (Entered: 11/15/2007)
141 SUPPLEMENTAL MEMORANDUM OF LAW in Further Support re: 122 MOTION for Summary Judgment. Document filed by Glen Goord, Jimmie Harris, John Nuttal, Frank Headley, Mark Lenard, Muhammad Salih Ahmed, William Mazzuca, Ada Perez. (djc) (Entered: 11/16/2007)
142 ORDER that the oral argument on the outstanding motions in this case shall be held at on February 13, 2008 at 4:00pm in United States Courthouse for the Southern District of New York, Courtroom 21C, 500 Pearl Street, New York, New York. SO ORDERED ( Oral Argument set for 2/13/2008 at 04:00 PM in Courtroom 21C, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 1/15/2008) (jmi) (Entered: 01/15/2008)
143 ORDER: that the oral argument scheduled for today shall begin at 4:30 p.m., instead of the original time of 4:00 p.m. (Signed by Judge Richard J. Sullivan on 2/13/08) (tro) (Entered: 02/14/2008)
144 MEMORANDUM AND ORDER granting in part and denying in part 113 Motion for Summary Judgment; granting in part and denying in part 122 Motion for Summary Judgment. For the reasons set forth in this Memorandum and Order, State Defendants' summary judgment motions are granted in part and denied in part. Defendants' motion to dismiss plaintiff Chatin's claims for injunctive relief as moot is granted. Summary judgment in favor of defendants is granted on plaintiffs' RLUIPA claim to the extent plaintiffs seek monetary damages. Defendants' motions are denied in all other respects. The Clerk of the Court is respectfully directed to terminate the motions located at document numbers 113 and 122. (Signed by Judge Richard J. Sullivan on 7/31/08)

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(tro) (Entered: 08/04/2008)
145 NOTICE OF APPEAL from 144 Order on Motion for Summary Judgment. Document filed by John R. LoConte. Filing fee $ 455.00, receipt number E 659945. Copies of Notice of Appeal mailed to attorney(s) of record: Amy E. Howlett, Esq.; Attorney General of State of New York; A.U.S.A.; and Warith Deen Umar, Pro Se. (nd) (Entered: 08/15/2008)
Transmission of Notice of Appeal to the District Judge re: 145 Notice of Appeal,. (nd) (Entered: 08/15/2008)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 145 Notice of Appeal,. (nd) (Entered: 08/15/2008)
146 ORDER: A Status Conference is set for 9/11/2008 at 01:30 PM in Courtroom 21C, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Sullivan. (Signed by Judge Richard J. Sullivan on 8/25/08) (db) (Entered: 08/26/2008)
147 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Andrew Hodge Meier dated 8/26/08 re: Counsel submits that they have through September 3, 2008 to file said notice of appeal and that a pretrial conference at this time would be premature. ENDORSEMENT: The conference in this matter will proceed as scheduled on September 11, 2008 at 1:30 p.m. (Signed by Judge Richard J. Sullivan on 8/27/08) (mme) (Entered: 08/28/2008)
148 NOTICE OF APPEAL from 144 Order on Motion for Summary Judgment. Document filed by Glen Goord, Jimmie Harris, John Nuttal, Frank Headley, Mark Lenard, Muhammad Salih Ahmed, William Mazzuca, Ada Perez. Filing fee $ 455.00, receipt number E 662109. Copies of Notice of Appeal mailed to attorney(s) of record: Imam Umar; Walsh & O'Shea; Sullivan & Cromwell; and A.U.S.A. (nd) (Entered: 09/04/2008)
Transmission of Notice of Appeal to the District Judge re: 148 Notice of Appeal,. (nd) (Entered: 09/04/2008)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 148 Notice of Appeal,. (nd) (Entered: 09/04/2008)
149 ORDER: All parties are required to participate in a telephone conference in this action on 9/16/2008 at 09:00 AM before Judge Richard J. Sullivan. (Signed by Judge Richard J. Sullivan on 9/10/08) (tro) (Entered: 09/11/2008)
150 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Sarah E. Light dated 9/11/08 re: Counsel for the U.S. request that they be excused from the Court appearance in this matter regarding the merits of this case. Counsel will, however, participate in the telephonic status conference with the Court currently scheduled for 9:00 a.m on 9/16/08. ENDORSEMENT: Request granted. (Signed by Judge Richard J. Sullivan on 9/11/08) (tro) (Entered: 09/11/2008)
151 TRANSCRIPT of proceedings held on 8/13/08 before Judge Richard J. Sullivan. (ama) (Entered: 10/01/2008)
152 ORDER, Status Conference set for 10/31/2008 at 12:30 PM in Courtroom 21C, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Sullivan. (Signed by Judge Richard J. Sullivan on 9/26/08) (mme) (Entered: 10/02/2008)
153 TRANSCRIPT of proceedings held on 9/11/08 before Judge Richard J. Sullivan. (ama) (Entered: 10/07/2008)
154 ORDER: IT IS HEREBY ORDERED that the status conference scheduled for October 31, 2008 at 12:30 p.m. is adjourned. Parties are further ordered to submit a joint status letter by Friday, November 7, 2008, informing the Court of the status of the settlement negotiations. So Ordered (Signed by Judge Richard J. Sullivan on 10/31/08) (js) (Entered: 11/03/2008)
155 ORDER that the Parties submit a joint status letter by Friday, November 21, 2008, informing the Court of the status of the settlement negotiations. SO ORDERED. ( Status Report due by 11/21/2008.) (Signed by Judge Richard J. Sullivan on 11/10/2008) (jmi) (Entered: 11/12/2008)

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156 ORDER: IT IS HEREBY ORDERED that the Parties submit a joint status letter by Friday, December 5, 2008. informing the Court of the status of the settlement negotiations. So Ordered (Signed by Judge Richard J. Sullivan on 11/24/08) (js) (Entered: 11/25/2008)
157 ORDER: It is hereby ordered that the parties submit a joint status letter by January 9, 2009, informing the Court of the status of settlement negotiations. (Signed by Judge Richard J. Sullivan on 12/8/2008) (jpo) (Entered: 12/09/2008)
158 ORDER that the parties submit their joint stipulation of dismissal no later than Friday, 1/23/09. (Signed by Judge Richard J. Sullivan on 1/12/09) (cd) (Entered: 01/12/2009)
159 ENDORSED LETTER addressed to Judge Richard J. Sullivan from MIchael J. Keane dated 1/23/09 re: State Defendants respectfully request that the parties be granted until Tuesday, January 27, 2009 to file the requisite papers so as to accommodate Mr. Walsh, and his client. ENDORSEMENT: Requests granted. (Signed by Judge Richard J. Sullivan on 1/23/09) (pl) (Entered: 01/26/2009)
160 STIPULATION OF WITHDRAWAL AND JUDGMENT: Pursuant to F.R.C.P. 41(a)(1), plaintiffs Thomas Pugh, Jr. and Clay Chatin, by and through their counsel, hereby stipulation to the withdrawal and dismissal with prejudice of all claims against Defendants Glenn S. Goord, Mark Leonard, Frank Headley, John Nuttall, William Mazzucca, Ada Perez and Jimmie Harris ("State Defendants"), Defendant John LoConte and Defendant pro se Warith Deen Umar in this action. After due deliberation, the Court HEREBY ORDERS, DECREES AND ADJUDGES that judgment be entered as follows: All claims asserted against defendants in this case no. 00cv7279 (RJS) are dismissed in their entirety with prejudice, pursuant to the terms and conditions of a Private Settlement Agreement, dated January 2009. (Signed by Judge Richard J. Sullivan on 1/28/09) (tro) Modified on 1/29/2009 (ml). (Entered: 01/29/2009)
161 STIPULATION OF SETTLEMENT: Private Settlement Agreement; IT IS HEREBY STIPULATED AND AGREED by and between the undersigned attorneys for plaintiffs Thomas Pugh, Jr. and Clay Chatin and Defendants Glenn S. Goord, Mark Leonard, Frank Headley, John Nuttall, William Mazzucca, Ada Perez and Jimmie Harris ("State Defendants"), Defendant John LoConte and Defendant pro se Warith Deen Umar in this action. Plaintiffs discontinue this action with prejudiceand discharge and release all State Defendants (Glenn S. Goord, Mark Leonard, Frank Headley, John Nuttall, William Mazzucca, Ada Perez and Jimmie Harris) Defendant John LoConte and Defendant pro se Warith Deen Umar in their individual and official capacities and their successors or assigns; the State of New York, and New York State Department of Correctional Services, including its agencies, subdivisions, employees, private contractors or assignees, of any and all claims, demands, or causes of actions, known or unknown, now existing or hereafter arising, whether presently asserted or not, which relate in any way to the subject matter of this action, and further agree to discontinue and/or not commence in any court, arbitration or administrative action, any litigation or claims against State Defendants(Glenn S. Goord, Mark Leonard, Frank Headley, John Nuttall, William Mazzucca, Ada Perez and Jimmie Harris)Defendant John LoConte and Defendant pro se Warith Deen Umar, the State of New York; and New York State Department of Correctional Services, pertaining to the underlying facts, circumstances or incidents that gave rise to the aforementioned action, or any results of the aforementioned facts, circumstances or incidents. Notwithstanding any other provision of this agreement, Plaintiffs refrain the right to enforce this private settlement agreement. The parties hereto agree that the above−captioned action shall be discontinued with prejudice pursuant to Rule 41(a) of the F.R.C.P. THE COURT APPROVES THIS PRIVATE SETTLEMENT AS TO FORM ONLY AND IT IS SO ORDERED. (Signed by Judge Richard J. Sullivan on 1/28/09) (tro) (Entered: 01/29/2009)
162 MANDATE of USCA (Certified Copy) as to 145 Notice of Appeal, filed by John R. LoConte USCA Case Number 08−4040−pr. IT IS HEREBY ORDERED that the motion of the State defendants Glenn Goord et al. to withdraw the appeal with prejudice is GRANTED. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 4/15/2009. (nd) (Entered: 05/12/2009)

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Transmission of USCA Mandate/Order to the District Judge re: 162 USCA Mandate,. (nd) (Entered: 05/12/2009)
163 MANDATE of USCA (Certified Copy) as to 148 Notice of Appeal, filed by Glen Goord, William Mazzuca, John Nuttal, Mark Lenard, Muhammad Salih Ahmed, Ada Perez, Frank Headley, Jimmie Harris USCA Case Number 08−4040−pr/08−4431−pr. IT IS HEREBY ORDERED that the motion to withdraw appeal be and it hereby is GRANTED. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 6/30/2009. (nd) (Entered: 07/01/2009)
Transmission of USCA Mandate/Order to the District Judge re: 163 USCA Mandate,. (nd) (Entered: 07/01/2009)