Rush et al v. New York State Department of Correction and Community Supervision et al

Filing 54

OPINION AND ORDER re: 31 MOTION for Preliminary Injunction, filed by Basheen Rush. Plaintiff's motion for a preliminary injunction is DENIED.The Clerk is instructed to terminate the motion. (Doc. #31). So Ordered. (Signed by Judge Vincent L. Briccetti on 10/4/16) Copies Mailed By Chambers. (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BASHEEN RUSH,
:
:
Plaintiff,
:
: OPINION AND ORDER
v.
:
: 15 CV 3103 (VB)
DR. L. MALIN, ANTHONY ANNUCCI,
:
CHERYL MORRIS, N. CHEESEBORO,
:
MICHAEL CAPRA, JEFF MCKOY, T.
:
TRACZ, K. CROWLEY, HERNANDEZ,
:
IMAM HASAN A. MU’MIN,
:
Defendants.
:
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Plaintiff, an inmate who identifies as Shiite Muslim currently incarcerated at Orleans
Correctional Facility (“Orleans”) brings this action pro se and in forma pauperis under the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, and
42 U.S.C. § 1983, alleging that defendants have violated his rights to free exercise of his religion
and equal protection during his incarceration at Sing Sing Correctional Facility (“Sing Sing”)
and Orleans.
Before the Court is plaintiff’s motion for a preliminary injunction, filed on July 11, 2016.
(Doc. #31).
For the reasons set forth below, plaintiff’s motion is DENIED.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
BACKGROUND
Plaintiff originally brought this action on April 15, 2015, alleging violations of his
constitutional rights while he was incarcerated at Sing Sing. At the time he filed his complaint,
however, he was already incarcerated at Orleans. (See Doc. #2).
Defendants answered the original complaint on March 21, 2016. (Doc. #25).
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The Court held an initial conference on April 13, 2016, at which time plaintiff informed
the Court he wished to amend the complaint to assert additional causes of action related to his
incarceration at Orleans. The Court granted plaintiff’s request, and plaintiff filed an amended
complaint on June 29, 2016. (Doc. #30).
In his amended complaint, plaintiff alleges he has been denied “religious fundamental
acts of worship, such as Ithna-Asheri Shi’a Islam Ju’mah services; religious events; 9 Days of
Muharram; Day of Ashura; Eid ul Fitr prayer,” and has been discriminated against based on his
religion. (Doc. #30 at 3). Plaintiff sues ten individual defendants employed by the New York
State Department of Corrections and Community Supervision (“DOCCS”), four of whom work
at Sing Sing (“Sing Sing defendants”), two at Orleans (“Orleans defendants”), and four at the
DOCCS administrative offices in Albany (“DOCCS defendants”).
On July 11, 2016, plaintiff filed the instant motion for a preliminary injunction, seeking
the following relief:
[A]n injunction against the defendants and order the defendants to show cause why the
plaintiff should not be allow[ed]:
a. To conduct the last day of Muharram October 10, 2016 and the day of Ashura
October 11, 2016 separate from the Sunni Muslims.
b. That the plaintiff and those wishing to attend the 9 days of Muharram (also known
as Ashura) be released out at 3:30 pm or after the Count clear, for worship services,
congregational prayer and reflection of Imam Husain (AS) and his Family killed
and to conclude at 8:45pm. Providing them with Halal food, that shall be cook[ed]
by a Shi’a Muslims. The Halal food shall be delivered to the activity building at
sundown on or about October 2, 2016 to October 9, 2016.
c. Each adherent allowed fruits, nuts, and dates to break the fast. Allow the plaintiff
to bring Prayer rugs and Qur’an. Allow the plaintiff will be [able] to wear his best
clothing. (e.g. personal shirt, prayer robes.)
d. All food prepare for the event was be consumed by the plaintiff and the adherents
wishing to attend.

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e. On the 11-day of October 2016 the plaintiff and those, wishing to attend the Day
of Ashura shall be allowed to be present in the activity building [no] later than 8:30
am and remain until 8:45pm.
f. At 11:00am, the plaintiff will return to his dorm for the count and allowed to return
at 12:00pm, they shall be provided with refreshment, such as walnuts, coffee cake,
coffee, tea, milk. The plaintiff and adherents shall be allowed to have a day of
reflection.
g. The plaintiff and adherents shall be allowed to offer in congregation the Dhur
prayer (afternoon prayer at approx. 12:00pm), the As’r prayer (the late afternoon
prayer at approx. 3:45pm), the Maghrib prayer (the evening prayer at sundown),
and the Isha prayer (the night prayer at approx. 8:30pm).
h. At approx 5:00pm the Halal meal shall be brought to the activity building for the
plaintiff and the adherents.
(Doc. #31 at 5-7).
DISCUSSION
I.

Venue
Defendants argue plaintiffs’ claims against the Orleans and DOCCS defendants should be

severed and transferred to the United States District Courts for the Western or Northern Districts
of New York.
The Court finds, at this phase of the case, severance and transfer is not appropriate.
Pursuant to 28 U.S.C. § 1391(b), “[a] civil action may be brought in . . . a judicial district
in which any defendant resides, if all defendants are residents of the State in which the district is
located,” or “a judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred.”
Venue is proper in this case because all defendants reside in the State of New York, and
the Sing Sing defendants reside in this district. Moreover, a substantial part of the allegations
contained in the amended complaint arose at Sing Sing, which is located in this district.

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Nevertheless, defendants argue joinder of the Orleans defendants in the amended
complaint was improper and transfer of the case to another district is appropriate.
Federal Rule of Civil Procedure 20(a)(2) states that “[p]ersons . . . may be joined in one
action as defendants if . . . any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and . . . any question of law or fact common to all defendants will
arise in the action.”
In determining whether allegations arise out of the same series of transactions or
occurrences, “courts in this Circuit commonly ask whether a plaintiff asserts a claim against the
joined defendant that is ‘logically related’ to the claims asserted against existing defendants.”
Springle v. City of New York, 2013 WL 592656, at *4 (S.D.N.Y. Feb. 14, 2013). 1 “There is no
rigid rule as to what constitutes the same series of transactions or occurrences for purposes of
joinder under Rule 20. In determining whether a particular situation constitutes a transaction or
occurrence, a case by case approach is generally pursued.” Martinez v. Robinson, 2001 WL
498407, at *5 (S.D.N.Y. May 10, 2001) (internal citations and quotations omitted).
Here, although plaintiff alleges he was denied his right to religious freedom in various
ways first at Sing Sing and later at Orleans, the overarching allegation relevant to both his
complaint and his motion for a preliminary injunction is that the DOCCS policies do not
adequately protect his right to practice his religion, and that the correctional officer defendants
have not properly implemented the policies that are in place, in either Sing Sing or Orleans.
Accordingly, the Court is satisfied the allegations against defendants arise out of the same series

1

Plaintiff will be provided with copies of all unpublished opinions cited in this decision.
See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
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of transactions or occurrences and involve questions of fact and law common to all defendants.
See Martinez v. Robinson, 2001 WL 498407, at *5 (rejecting argument that “alleged beatings
involv[ing] different correction officers assigned to different divisions,” arose from different
transactions or occurrences because plaintiff was not seeking relief “only from the correction
officers who participated directly in the alleged beatings”).
In addition, defendants urge the Court under 28 U.S.C. Section 1404(a), to transfer the
case “[f]or the convenience of parties and witnesses, in the interest of justice.”
“[M]otions for transfer lie within the broad discretion of the district court and are
determined upon notions of convenience and fairness on a case-by-case basis.” Solar v. Annetts,
707 F. Supp. 2d 437, 441 (S.D.N.Y. 2010) (internal quotation and citation omitted).
At this time, it would not be in the interest of justice to transfer the action to another
district. The requested preliminary injunction relates to events that are scheduled to take place
on October 2-11, 2016. There would be insufficient time for a new judge to become familiar
with the case and render a decision on the merits of the preliminary injunction before the motion
becomes moot.
Accordingly, the Court declines to sever and transfer the claims brought against the
Orleans and DOCCS defendants at this phase of the case. 2
II.

Motion for Preliminary Injunction
Defendants next argue plaintiff has failed to show he is entitled to the preliminary

injunctive relief he seeks.

2

Defendants may of course move to sever again when they respond to to the amended
complaint, and certainly if all claims arising in this district are dismissed, the Court would
strongly consider transferring any remaining claims to another district where venue would be
proper at that time.
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The Court agrees.
“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.” Sussman v.
Crawford, 488 F.3d 136, 139 (2d Cir. 2007) (internal citation and quotation omitted).
“To secure a preliminary injunction . . . the moving party must demonstrate (1) that it will
be irreparably harmed in the absence of an injunction, and (2) either (a) a likelihood of success
on the merits or (b) sufficiently serious questions going to the merits of the case to make it a fair
ground for litigation, and a balance of hardships tipping decidedly in its favor.” MONY Grp.,
Inc. v. Highfields Capital Mgmt., L.P., 368 F.3d 138, 143 (2d Cir. 2004) (internal citation and
quotation omitted).
“A party moving for a mandatory injunction that alters the status quo by commanding a
positive act must . . . make a clear or substantial showing of a likelihood of success on the merits,
a standard especially appropriate when a preliminary injunction is sought against government.”
D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006), opinion
amended on denial of reh'g, 480 F.3d 138 (2d Cir. 2007) (internal citations and quotations
omitted). Plaintiff here must meet this higher standard because he is seeking to have DOCCS
change its policy regarding joint Sunni and Shiite observances during Muharram/Ashura.
Although the Court finds (assuming the truth of the allegations in the preliminary
injunction motion) that plaintiff has satisfied his burden on the irreparable harm prong, he has
failed to make a clear or substantial showing of a likelihood of success on the merits. 3

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Even if the lesser standard of “sufficiently serious questions going to the merits” applied,
the Court finds plaintiff has failed to make that showing for the same reasons set forth below,
namely, that defendants have established to the Court’s satisfaction that the policies at issue were
put in place in furtherance of compelling governmental interests with the least restrictive means
available.
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A.

Irreparable Harm

“To satisfy the irreparable harm requirement, [plaintiff] must demonstrate that absent a
preliminary injunction [he] will suffer an injury that is neither remote nor speculative, but actual
and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve
the harm.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (internal citation
and quotations omitted).
Here, the crux of plaintiff’s proposed preliminary injunction seeks to enjoin defendants
from “forcing the plaintiff to perform the last two days of Muharram/Ashura with the Sunni
Muslim community.” (Prelim. Inj. Motion at 1). He alleges he “would be committing a sin” if
he participated in the Sunni-led services taking place this month. (Pl.’s Reply at 3).
Assuming the truth of these allegations solely for the purpose of deciding this motion, the
Court finds plaintiff has sufficiently shown he will suffer an actual and imminent injury if the
preliminary injunction is not granted, and therefore he has satisfied the irreparable harm prong of
the analysis.
B.

Likelihood of Success on the Merits

A finding of irreparable harm does not end the analysis, however. As mentioned,
plaintiff must also make a clear or substantial showing of a likelihood of success on the merits of
his claim.
The Court finds plaintiff has not met his burden here.
Plaintiff brings claims under RLUIPA, the First Amendment, and the Equal Protection
Clause of the Fourteenth Amendment.

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The Court addresses the RLUIPA and constitutional claims in turn. 4
1.

RLUIPA

“Under RLUIPA, a plaintiff must demonstrate that the state has imposed a substantial
burden on the exercise of his religion; however, the state may overcome a RLUIPA claim by
demonstrating that the challenged policy or action furthered a compelling governmental interest
and was the least restrictive means of furthering that interest.” Redd v. Wright, 597 F.3d 532,
536 (2d Cir. 2010); see also Holt v. Hobbs, 135 S. Ct. 853, 862 (2015).
“RLUIPA’s ‘substantial burden’ inquiry asks whether the government has substantially
burdened religious exercise . . . not whether the RLUIPA claimant is able to engage in other
forms of religious exercise.” Holt v. Hobbs, 135 S. Ct. at 862.
“RLUIPA requires us to scrutinize the asserted harm of granting specific exemptions to
particular religious claimants and to look to the marginal interest in enforcing the challenged
government action in that particular context.” Id. at 863 (internal quotations and citation
omitted).
Here, plaintiff alleges he “would be committing a sin” if he is not permitted to participate
in Muharram/Ashura separately from Sunni Muslims. (Pl.’s Reply at 3). The Court accepts
plaintiff’s religious beliefs to be sincerely held, and accepts for the purposes of this motion that

4

Defendants also argue plaintiff is not likely to succeed on the merits of his claims
because he has failed to exhaust his administrative remedies. (Defs.’ Br. at 20). Plaintiff
submitted with his reply papers what appears to be a fully exhausted complaint, culminating in a
decision by the Inmate Grievance Program Central Office Review Committee, “uphold[ing] the
determination of the Superintendent” and asserting “[t]he last days of Ashura are listed as Islam
and are not limited only to Shi’ites,” and “no compelling reason has been presented to allow the
Shi’ite inmates a separate place to worship.” (Pl.’s Reply at Ex. 9). The Court need not make a
final determination on the issue of exhaustion at this time, however, because it finds plaintiff is
not likely to succeed on the merits for the reasons stated herein.
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the burdens placed on him with respect to the observance of Muharram/Ashura with Sunni
Muslims are substantial.
However, defendants have established the policies in question were put in place in
furtherance of compelling governmental interests.
First, defendants have submitted a copy of the official DOCCS Holy Day calendar and
the 2001 “protocol for Shiite Muslim Programs and Practices,” the development of which took
more than two years of consideration and outreach to “major Islamic organizations in New York
State in order to determine the appropriate direction in matters of Islamic doctrine, tradition and
ritual.” (Morris Dec’l ¶¶ 33-34). The Holy Day calendar provides that the “first nine days” of
the “Days of Ashura (Muharram)” are “traditionally celebrated by Shi’ite Muslims,” and the
“Last Two Days of Ashura” “are celebrated by all Islamic adherents.” (Morris Dec’l Ex. B at
15). Neither entry states that Sunni and Shiite Muslims are to be provided with separate spaces
for participation in these events.
Moreover, defendants submit that DOCCS’s policies serve to “maintain[] safety and
security, avoid[] conflict among inmates by separating them into groups, [and] avoid[] the
administrative costs of organizing and holding separate services for Sunni Muslims for a Holy
Day reserved primarily for Shi’a inmates”; “foster[] harmony among inmates and avoid[]
exacerbating animosities that may exist within groups of religious adherents among those
inmates”; and “avoid the administrative burden of reserving additional space, requiring
additional security staff, preparing additional food, dispatching additional clean-up crews –
essentially avoiding the duplication of effort upsetting the status quo would require.” (Defs.’ Br.
at 21, 23-24).

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Defendants have also satisfied the Court that DOCCS’s policies are the least restrictive
means available. In particular, as explained in a declaration by DOCCS’s Director of
Ministerial, Family and Volunteer Services, DOCCS has established guidelines to permit
inmates with individualized beliefs “to practice their religion while recognizing the limitations of
the prison setting and resources.” (Morris Dec’l ¶ 15). In particular, “[a]ll inmates are allowed
to pray and study in their cells and to receive religious publications,” they are permitted to “meet
individually with any facility chaplain,” or if an inmate “feels that a religious program does not
fulfill his religious needs, DOCCS . . . allows inmates to receive spiritual advice from the outside
religious community when a DOCCS chaplain is not available.” (Id. ¶¶ 16-18).
As a result, the Court agrees with defendants that the least restrictive means of
accommodating plaintiff’s religious beliefs, in light of the compelling governmental interests
they advance, is “to allow Sunni inmates to participate with him in observing the last days of
Muharram and Ashura.” (Defs.’ Br. at 25). Rahman v. Goord, 2007 WL 1299408, at *4
(W.D.N.Y. May 3, 2007) (finding a “joint Jumah service” attended by both Sunni and Shiite
Muslims was “the least restrictive means of accomplishing” DOCCS’s “compelling interest in
having a single Jumah service”).
2.

Constitutional Claims

Much like the RLUIPA analysis, a plaintiff asserting constitutional violations bears the
initial burden of showing that the disputed policy substantially burdens his sincerely held
religious beliefs. Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006). The defendants
then “bear the relatively limited burden of identifying the legitimate penological interests that
justify the impinging conduct,” but “the burden remains with the prisoner to show that these
articulated concerns were irrational.” Id. at 275.

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“Under the First Amendment, . . . a generally applicable policy will not be held to violate
a plaintiff's right to free exercise of religion if that policy is reasonably related to legitimate
penological interests.” Id. (internal citation and quotation omitted).
For an equal protection claim, the standard is similar to a First Amendment claim: “the
reasonableness of the prison rules and policies must be examined to determine whether
distinctions made between religious groups in prison are reasonably related to legitimate
penological interests.” Benjamin v. Coughlin, 905 F.2d 571, 575 (2d Cir. 1990).
As discussed above, the Court accepts for the purposes of this motion that the policies in
question pose a substantial burden on plaintiff’s sincerely held religious beliefs. In addition, the
Court assumes for the purposes of this motion that the policies in question recognize the
distinction between the Sunni and Shiite religious groups at Sing Sing and Orleans and that
holding joint Muharram/Ashura observances is a DOCCS policy put in place despite those
distinctions.
However, defendants have met their burden by showing that the restrictions placed on
plaintiff’s religious freedoms are reasonably related to several legitimate penological interests.
For example:
•

“DOCCS as a matter of policy attempts to avoid dividing inmates into groups where
differences among them are emphasized, as the pronouncement of such differences can
lead to divisiveness among inmates, and ultimately could lead to the resentments and
rivalries that compromise social harmony that DOCCS tries to maintain in its prison
facilities, and could, if extreme, lead to violence. Thus, DOCCS aims to accommodate
groups of co-religionists without exacerbating rivalries by segregating individuals in subgroups.” (Morris Dec’l ¶ 45).

•

“Segregating Sunni from Shia for the observances of the ‘Days of Ashura (Muharram)’
and the ‘Last Two Days of Ashura’ would require that any facility in which segregation
would be ordered would have to find separate and appropriate space for the competing
observances, and therefore also have to assign security sufficient for each space. In
addition, the dietary requirements for separate observances would require additional work
for kitchen staff.” (Id. ¶ 48).
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•

“[The] Religious Holy Day Calendar . . . is a carefully balanced protocol . . . to allow the
greatest number of inmates to practice their religion while . . . meeting the security,
administrative and financial constraints facing DOCCS. To deny requests to alter the
religious calendar to all inmates assures consistency, while granting any request for some
but not others would create the appearance of favoritism, fostering resentment.” (Id. ¶ 54).
Plaintiff alleges in his complaint defendants are “responsible for creating an expectation

for the Plaintiff to have separate . . . Islamic religious events from Sunni Muslims” apparently
because Shiite Muslims have been permitted to participate in other religious events separate from
Sunni Muslims. (Amend. Compl. ¶¶ 2, 12). He alleges this proves “no legitimate penological
interest exists” in having other religious events be joint between the two groups. (Id. ¶ 12). The
Court finds this argument unpersuasive in light of the specific and rational penological interests
provided by defendants.
In sum, although the Court accepts for purposes of this motion that the policies in
question pose a substantial burden on plaintiff’s sincerely held religious beliefs, defendants have
provided legitimate and rational explanations for why they are justified in not providing separate
spaces, food, and staffing for Shiite Muslims for all religious events, including the ones at issue
here. The Court therefore finds plaintiff is not likely to succeed on the merits of his claim.
Accordingly, plaintiff has failed to show he is entitled to the preliminary injunctive relief
he seeks.

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CONCLUSION
Plaintiff’s motion for a preliminary injunction is DENIED.
The Clerk is instructed to terminate the motion. (Doc. #31).
Dated: October 4, 2016
White Plains, NY
SO ORDERED:

______________________________
Vincent L. Briccetti
United States District Judge

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