Blast et al v. Fischer et al
Filing
102
ORDER denying 93 Motion for Preliminary Injunction; denying 95 Motion for Contempt ; denying 101 Motion for Contempt. Signed by Hon. H. Kenneth Schroeder, Jr on 8/29/2011. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SYNTHIA CHINA BLAST, 97-A-0308,
Plaintiff,
07-CV-0567(Sr)
v.
BRIAN FISCHER, Commissioner, et al.,
Defendants.
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all further proceedings, including
the entry of final judgment. Dkt. #50.
Currently before the Court are plaintiff’s motion for a preliminary injunction
enjoining defendants from prohibiting plaintiff’s direct purchase of Santeria ritual and
spiritual waters from approved vendors (Dkt. #93), and plaintiff’s motions for civil
contempt of this Court’s Order of Stipulated Settlement. Dkt. ## 95 & 101. For the
following reasons, the motions are denied.
BACKGROUND
Plaintiff, a transexual inmate at the Wende Correctional Facility
(“Wende”), commenced this action pro se, alleging that the New York State Department
of Correctional Services (“DOCS”), was depriving her of the opportunity to practice the
Santeria religion, in violation of her constitutional rights under the First Amendment and
the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution and the Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”). Dkt. #11.
The parties submitted a stipulation of settlement and order of dismissal
(Dkt. #71), which the Court “SO ORDERED” on October 23, 2009. Dkt. #72. The
stipulation of settlement provided, inter alia, that defendants would
issue Blast a religious permit for the items agreed to by the
parties, deliverable upon Blast’s execution of this
agreement. Blast acknowledges that the items set forth in
the religious permit are sufficient for Blast to freely and
adequately practice Blast’s religion.
Dkt. #71, ¶ 2. The religious permit granted plaintiff permission to make a request to the
local Chaplain in accordance with Directive 4202, paragraph G, for a minimum of two
authentic Santeria religious holidays. Dkt. #83, p.11. The religious permit also granted
plaintiff permission to possess, inter alia, “up to four bottles (each eight ounces or less)
of ritual water and up to five bottles of spiritual water a month (each eight ounces or
less) from approved commercial vendors.” Dkt. #83, p.11. With respect to vendors, the
permit provides as follows:
You may submit information on vendors you wish to be
considered for purchase of these items, in order to have the
vendors approved. Vendors will be asked for ingredients for
the . . . waters . . . . Items purchased may be tested for any
hazardous or dangerous ingredients or materials. Items
purchased may not contain alcohol or contraband drugs.
Items such as . . . waters . . . must be purchased and stored
in appropriate plastic containers.
Dkt. #83, p.12.
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The approval of vendors for ritual and spiritual waters has been
problematic because of the prevalence of alcohol in many of the water mixtures, which
is a security concern both because alcohol is flammable and because of concerns that
inmates may ingest the water for its alcohol content. Dkt. #86, ¶ 10. DOCS eventually
identified three potential vendors offering Orange Water, Holy Water, Pyamid Water,
Camphor Water, Rose Water and St. Claire Water containing essential oils within
distilled water rather than alcohol. Dkt. #86, ¶ 17. Plaintiff rejected these options
because they “are not Santeria spiritual and ritual waters used in Santeria/Yoruba
religion,” noting, for example, that the Holy water is Catholic religious water. Dkt. #94,
¶ 11; Dkt. #98, ¶ 18.
Plaintiff declares that she has provided defendants multiple copies of
catalogs identifying Santeria ritual and spiritual waters which do not contain alcohol,
including the Original Products Company in Bronx, New York. Dkt. #94, ¶ ¶ 2-3.
Plaintiff further declares that although this vendor provided letters listing ingredients,
DOCS forced her to return five spiritual waters and four ritual waters received from
Original Products without even testing the waters as contemplated in the religious
permit issued to plaintiff. Dkt. #94, ¶¶ 5-6. Similarly, plaintiff declares that she was
forced to return four containers of ritual waters ordered from Azure Green, Inc. Dkt.
#94, ¶ 7. In addition to Original Products and Azure Green, Inc., plaintiff identifies
Wisdom Products and Church Goods as sources of ritual and spiritual waters for
practitioners of Santeria. Dkt. #94, ¶ 14.
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DOCS declares that upon receipt of the waters plaintiff ordered from
Azure Green, Inc., a Senior Attorney with Counsel’s Office at DOCS contacted Azure
Green, Inc., and received a return letter by fax stating that all of their waters and
washes, with the exception of the Holy Water and Pyramid Water, contain alcohol. Dkt.
#98, ¶ ¶ 21-22 & p.43. DOCS declares that it has sought information about ingredients
for waters from Church Goods, aka The Luck Shop, as well as another vendor,
Divinafe, aka, Inesca Imports, but received no response. Dkt. #98, ¶ ¶ 23-24.
DOCS declares that it has approved Original Products as a vendor for
Lake Water, Rain Water, River Water and Sea Water, ordered these products and
offered them to plaintiff for sale at the cost of the waters and price of shipping, but
plaintiff refused to purchase them unless she was permitted to place the order with the
vendor directly. Dkt. #98, ¶ ¶ 26 & 39. DOCS further declares that it has approved
Wisdom Products, aka Indio Products, as a vendor for Ven A Mi (Come to Me),
Reversible, San Antonio (St. Anthony), spiritual waters, as well as fourteen different
types of bath and floor washes, so long as the ingredient labels accompanying the
waters do not indicate alcohol as an ingredient. Dkt. #98, ¶ ¶ 29-31, 34 & 39.
DOCS declares that it is requiring plaintiff to order the waters through the
facility chaplain because “Santeria vendors could not furnish products in commercially
sealed containers, with labels, as the parties had anticipated when the religious permit
was issued.” Dkt. #98, ¶ 3 & pp.52 & 61. Plaintiff states that DOCS was aware that the
waters were not commercially sealed prior to execution of the settlement. Dkt. #99, ¶ 8.
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DOCS further declares that it
wants to order the waters directly for both security reasons
and for administrative reasons. If the Department orders the
waters and takes delivery and receipt of the waters, then the
Department can set up ordering and distribution of the
waters for any other Santeria or Yoruba inmates who seek
the same items. . . . If the Department orders the waters,
then there would be little or no incentive for Blast or any
other inmate to seek to have contraband delivered in the
waters.
Dkt. #98, ¶ 41. DOCS agrees to show plaintiff invoices for the waters so as to allay
concerns that DOCS would overcharge plaintiff. Dkt. #98, ¶ 40.
DISCUSSION AND ANALYSIS
Plaintiff complains that although she identified Original Products and
Wisdom Products in October, 2009, DOCS did not approve them as vendors for more
than a year. Dkt. #99, ¶¶ 27-28. Pursuant to the terms of the settlement agreement,
plaintiff argues that she should be permitted to order ritual and spiritual waters directly
from approved vendors, subject to inspection and testing by DOCS. Dkt. #94, ¶ 10.
Plaintiff complains that it is a violation of her religious beliefs to rely upon the Catholic
Chaplin to order her Santeria waters. Dkt. #99, ¶¶ 17-18. As a practical matter, plaintiff
notes that because she is allowed to order oils and eggshells directly from the same
vendors that DOCS is obtaining the waters, she will be forced to incur multiple shipping
and handling fees. Dkt. #99, ¶¶ 23-24. Plaintiff also complains that she has not been
allowed to celebrate two religious holidays per year as provided in the stipulated
settlement. Dkt. #101, ¶ 12.
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As an initial matter, the Court repeats its prior determination (Dkt. #92),
that because this case was closed following entry of the settlement agreement, a
preliminary injunction is procedurally inappropriate.
With respect to the motions for contempt, it is well settled that a “party
may be held in civil contempt for failure to comply with a court order if (1) the order the
contemnor failed to comply with is clear and unambiguous, (2) the proof of
noncompliance is clear and convincing, and (3) the contemnor has not diligently
attempted to comply in a reasonable manner.” Paramedics Electromedicina
Commercial, LTDA, v. GE Medical Systems Info. Techs, Inc., 369 F.3d 645, 655 (2d
Cir. 2004) (internal quotation omitted). “It need not be established that the violation was
willful.” Id. However, a contempt order is a potent weapon to which courts should not
resort where there is a fair ground of doubt as to the wrongfulness of the defendant’s
conduct. King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995) (quotation and
citation omitted).
The Court does not find that defendants lacked diligence in their efforts to
locate appropriate vendors for the spiritual and ritual waters. To the contrary, DOCS
retained a Santeria expert, inquired of numerous potential vendors, considered allowing
plaintiff to create her own religious waters, and ultimately approved two vendors. Given
the lack of commercially sealed containers and discrepancies between vendors’
representations regarding the use of alcohol as an ingredient and the ingredient lists
provided by vendors, as well as the potential for alterations in ingredients from one
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order to another, the Court does not find DOCS’ direction that plaintiff order the waters
through its personnel so that they can confirm the absence of alcohol as an ingredient
in each water ordered, to be onerous. Moreover, the requirement that plaintiff place her
orders through DOCS’ personnel is not violative of the terms of the settlement
agreement, which is silent as to the procedure for placing orders with vendors.
However, the Court will direct DOCS to allow plaintiff, if she so chooses, to order her
oils and eggshells along with her waters so as to avoid multiple shipping and handling
fees from the same vendor.
Plaintiff has not proffered sufficient facts to the Court with respect to her
claim of denial of religious holidays to assess the contempt motion. For example,
plaintiff does not aver that she requested any particular holiday ritual or gathering in
accordance with the procedures set forth in the religious permit.
CONCLUSION
For the foregoing reasons, the Court denies plaintiff’s motions for a
preliminary injunction (Dkt. #93) and contempt (Dkt. ##95 & 101).
SO ORDERED.
DATED:
Buffalo, New York
August 29, 2011
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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