Blast et al v. Fischer et al
Filing
136
ORDER granting 110 Motion ; granting 112 Motion ; resolving 113 Motion to Reopen Case; resolving 133 Motion for Hearing. Signed by Hon. H. Kenneth Schroeder, Jr on 12/23/2014. (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 motions to reopen this matter and
hold the New York State Department of Correctional Services (“DOCS”),1 in civil
contempt of this Court’s Order of Stipulated Settlement. Dkt. ## 110, 112, 113 & 133.
For the following reasons, the motions are granted.
BACKGROUND
Plaintiff, a transgender male-to-female inmate at the Wende Correctional
Facility (“Wende”), commenced this action pro se, alleging that DOCS was depriving
1
Although DOCS has merged with the New York State Division of Parole to form the
New York State Department of Corrections and Supervision (“DOCCS”), the Court will continue
to utilize DOCS for consistency.
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. As relevant to the instant dispute, the religious permit issued by DOCS
granted plaintiff permission to “possess up to six bottles (each one ounce or less)” of
ritual and prayer oils” in plaintiff’s cell. Dkt. #83, p.11.
A Memorandum from D.S.P. Crowley to the Package Room Staff at
Wende, dated June 13, 2011, provides that plaintiff may order Santeria oils from
Wisdom Products and/or Indio Products and explains that:
The Santeria prayer oils they sell come in one (1) oz. or less
glass bottles. The Santeria ritual oils come in 2 oz plastic
bottles. He will be allowed to have a total of six bottles of
the oils, each two ounces or less, in his cell at a time. He
may not have any oils in bottles larger than two ounces and
squirt tops will not be permitted. He will be required to turn
in an empty bottle in order to receive a new bottle.
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The prayer oils which are approved for his purchase are on
the attached copy of the Wisdom Products Catalog, page
72. Upon arrival, the oils mut go to Chaplain Snyder who is
responsible for delivering them to Inmate Blast and doing a
one for one exchange, if required.
Dkt. #114, p.7.
On April 2, 2012, plaintiff withdrew her motion to hold defendants in
contempt of the settlement following issuance of an amended religious permit, which,
as relevant to the instant dispute, provided as follows:
Ritual and prayer oils. You may possess up to six bottles
(each two ounces or less) in your cell. You may purchase
up to six bottles of oil per month from approved commercial
vendors. The Chaplain can maintain up to 32 ounces of oil
for you, to refill the plastic or glass bottles in your cell, which
hold one or two ounces. You have worked out an exchange
process with the staff at Wende CF, allowing you to
exchange bottles of oil. You are currently using plastic or
glass bottles of oil in either a one or two ounce size. This
process to use these bottles can continue at Wende CF or if
you are transferred. No squirt tops are permitted.
Dkt. #108, p.2, ¶¶ 4-5 & p.8, ¶ 2. The amended religious permit also states that
“[i]tems such as the oils, waters and eggshell must be purchased and stored in
appropriate plastic containers, unless the oils are stored in one or two ounce glass
bottles.” Dkt. #108, p.9, ¶ 7. The amended religious permit also allows plaintiff to keep
a shrine in plaintiff’s cell in accordance with Directive 4202, paragraph N.2.d and
specifically states that the “shrine may have normally allowable items, such as tobacco
(loose and cigars).” Dkt. #108, p.9, ¶ 5. The amended religious permit states that it will
serve as plaintiff’s “statewide religious item exemption,” but does not allow plaintiff “any
special privileges beyond those afforded to other offenders” should plaintiff be “sent to
SHU, or on a court trip, or a medical trip.” Dkt. #108, p.11.
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On March 23, 2013, plaintiff was transferred to the Auburn Correctional
Facility (“Auburn”). Dkt. #111. On October 24, 2013, plaintiff was placed in
Administrative Segregation, which is housed in the Special Housing Unit (“SHU”), after
reporting that multiple inmates in the Protective Custody Unit had threatened to sexually
assault plaintiff. Dkt. #111, pp.2-3, ¶¶ 5 & 7. By Memorandum dated November 5,
2013, Auburn DSP Justin Thomas informed plaintiff that she would not be allowed the
items set forth in the religious exemption while in Administrative Segregation in SHU.
Dkt. #111, ¶ 8. Plaintiff objects that the religious exemption permit denies special
privileges solely if plaintiff is sent to SHU for disciplinary reasons. Dkt. #111, p.3, ¶ 9.
Plaintiff complains that she may be kept in Administrative Segregation, and therefore
denied the right to practice Santeria, for years. Dkt. #111, p.4, ¶¶ 11-12.
On December 23, 2013, plaintiff was transferred to the Shawangunk
Correctional Facility (“Shawangunk”), and placed in Involuntary Protective Custody.
Dkt. #112, ¶ 5. Despite being presented with the religious permit, officials at
Shawangunk confiscated six glass bottles of prayer oils, each one-third of an ounce,
and refused to allow plaintiff to possess glass bottles and loose tobacco and cigars.
Dkt. #112, ¶ 6 & Dkt. #122.
Plaintiff was transferred to the Sullivan Correctional Facility (“Sullivan”),
where the prayer oils and loose tobacco and cigars continued to be withheld. Dkt.
#125. In a declaration dated May 16, 2014, Sullivan Superintendent Patrick Griffin
states that plaintiff is housed in Involuntary Protective Custody which is located within
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SHU. Dkt. #127, ¶ 5. In accordance with DOCS Directive #4911, Superintendent
Griffin declares that
Sullivan Correctional Facility does not permit inmates items
that are made of glass and the Commissary does not sell
glass products. Glass is considered contraband and has
been used as a weapon and an instrument to do self-harm.
Inmate Blast would be permitted to order the oils in glass
and have them shipped to the Facility Chaplain who could
then transfer them to an appropriate plastic container for use
by inmate Blast.
Dkt. #127, ¶ 6. Superintendent Griffin also declares that plaintiff was transferred to
Sullivan, a Mental Health Service Level 1 facility, because of threats of self-harm and
was housed in the Residential Crisis Treatment Program for more than a month after
threatening self harm and threatening to start a fire. Dkt. #127, ¶ 7.
Plaintiff declares that she is allowed to possess a lamp with a glass
lightbulb in her cell at Sullivan and notes that Directive 4911 permits one ounce glass
bottles of toiletries when received directly from an approved vendor in original
packaging. Dkt. #132, ¶ 14 & Dkt. #134, ¶ 5. Plaintiff provided the Court with a copy of
Directive #4911, which provides:
Toilet Articles/Cosmetics
***
- No glass, except when approved toiletries cannot be
obtained in plastic containers or cans then one ounce glass
containers may be permitted when received directly from an
approved store or manufacturer as packaged by them.
Dkt. #134, p.3. In any event, plaintiff notes that it was DOCS which chose the vendor
for the prayer oils; plaintiff’s preferred vendor sold the prayer oils in plastic bottles. Dkt.
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#132, ¶¶ 5-6. Plaintiff declares that the secure roll on ball prevents transfer of the oils
to a plastic container and, in any event, objects to the transfer of religious oils into
common containers by DOCS staff. Dkt. #132, ¶ 25. Plaintiff declares that she “has
not once used her glass oil bottles to commit any acts of self-harm” nor has she ever
lost any of the glass oil bottles. Dkt. #132, ¶ 7. Plaintiff declares that the religious
permit was honored in Wende, Mid-State and Auburn Correctional Facilities without
incident and notes that the religious permit explicitly states that it is applicable at all
DOCS facilities. Dkt. #132, ¶ 15 & 17. In addition, plaintiff declares that inmates are
allowed to order and receive up to $128 in tobacco products from the commissary and
that Native Americans, even those in disciplinary SHU, are allowed to burn sage and
possess a lighter. Dkt. #132, ¶ 16. Plaintiff seeks monetary damages as compensation
for DOCS’ restraint on her inability to practice her Santeria faith since October 24,
2013. Dkt. #133, ¶ 18.
DISCUSSION AND ANALYSIS
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
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wrongfulness of the defendant’s conduct. King v. Allied Vision, Ltd., 65 F.3d 1051,
1058 (2d Cir. 1995) (quotation and citation omitted).
The permit for religious items referenced in the Court Ordered settlement,
as amended, clearly allows plaintiff to possess glass bottles of prayer oils and tobacco
(loose and cigars), not only at Wende, where the amended permit was issued, but also
if plaintiff is transferred to another facility. Dkt. #108, p.8, ¶¶ 2 & 5. Despite the clarity
of the language in the permit for religious items, and despite the absence of any
evidence of problems in regards thereto at other facilities at which plaintiff has been
housed, DOCS has transferred plaintiff to facilities at which she has been denied
possession of these items without evidence of any effort, let alone diligence, to comply
with the terms of the permit for religious items in so far as it allows plaintiff to possess
prayer oils and tobacco. The Court will not permit DOCS’ decision to house plaintiff in
SHU, absent any indication of disciplinary reasons for such placement, to unilaterally
alter the terms of the settlement and the permit for religious items incorporated therein.
Although the Court is not insensitive to the safety and security issues posed by plaintiff,
DOCS may not simply ignore the terms of a settlement ordered by the Court. If DOCS
determines that a modification of that order is necessary, and cannot be negotiated with
plaintiff, it should seek such relief from the Court.
CONCLUSION
For the foregoing reasons, the Court grants plaintiff’s motions for civil
contempt and directs that, within 30 days of this Order, DOCS provide plaintiff with
access to prayers oils in original plastic or glass bottles, no more than two ounces in
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size, from approved commercial vendors and access to tobacco (loose and cigars) as
normally allowed in the facility in which plaintiff is currently housed. In addition, as
compensation for being denied use of prayer oils and tobacco in her religious practice
for approximately 60 weeks, DOCS is ordered to pay plaintiff $1500.
SO ORDERED.
DATED:
Buffalo, New York
December 23, 2014
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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