Opinion
439-09.
Decided October 15, 2009.
Randolph Rossi, Petitioner, Pro Se.
Coxsackie Correctional Facility, Tyler Mitchell, Coxsackie Correctional Facility, Milton Powell, Coxsackie Correctional Facility, NahShon Jackson, Coxsackie Correctional Facility, Andrew M. Cuomo, Attorney General, State of New York, Attorney For Respondent, The Capitol, Albany, New York, Robert M. Blum, Assistant Attorney General of Counsel.
The petitioner, an inmate at Coxsackie Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review three separate administrative determinations. Two of the determinations relate to the denial of formal grievances that he filed in connection with his claims that the respondent has interfered with his right to practice the Rastafarian faith. With regard to a cause of action unrelated to the two grievances, the petitioner alleges that the respondent has prevented him from establishing an organization to engage in fund raising for the Rastafarian community.
Turning first to a preliminary issue, the Court observes that three inmates, Milton Powell (DIN No. XX-X-XXXX, Tyler Mitchell (DIN No. XX-X-XXXX) and NahShon Jackson (DIN No. XX-X-XXXX), all members of the Rastafarian faith, have made separate motions to be joined as petitioners in this matter under CPLR 1001. In view of the summary nature of a CPLR Article 78 proceeding, and in the absence of compelling reasons in support of the grant of said motions, the Court finds that each of the motions should be denied.
Turning to the merits, the Court is mindful that Correctional Law § 610 (1) provides "[a]ll persons who may have been or may hereafter be committed to or taken charge of by any of the institutions mentioned in this section, are hereby declared to be and entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference." Such statutory requirement is reflected in the applicable regulations of the Department of Correctional Services. 9 NYCRR § 7024.1 provides:
"(a) Prisoners have an unrestricted right to hold any religious belief, and to be a member of any religious group or organization.
(b) Prisoners are entitled to exercise their religious beliefs in any manner that does not constitute a threat to the safety, security or good order of a local correctional facility, or the health of any individual. ***
(d) Equal status and protection shall be afforded all prisoners in the exercise of their religious beliefs, except when such exercise results in facility expenditures which are unreasonable or disproportionate to those extended to other prisoners for similar purposes."
It has been held that "[i]nmate rights to religious freedom must be balanced against security considerations and the State's legitimate correctional goals" ( Matter of Cancel v Goord, 278 AD2d 321, 323 [2d Dept 2000]).
"In making this determination four factors are considered: (1) whether there is a logical connection between the prison practice and legitimate governmental interests, (2) whether there are alternate means of exercising the right, (3) the impact upon staff and other inmates and the allocation of prison resources, and (4) whether there are alternatives that adequately address the concerns (Matter of Lucas v Scully, 71 NY2d 399, 405)" ( Matter of Malik v Coughlin, 158 AD2d 833, 834 [3d Dept 1990]).
In addition, the Religious Land Use and Institutionalized Persons Act of 2000 ( 42 U.S.C. § 2000cc-1, hereinafter RLUIPA) prohibits respondent from imposing a substantial burden on the religious exercise of a prisoner unless respondent demonstrates that imposition of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. ( 42 USC § 2000cc-1 [a]). However, even under the RLUIPA, legitimate safety and security concerns take precedence ( see Cutter v Wilkinson, 544 US 709, 722).
Grievance CX-14424-08
This grievance consisted of two complaints. In the first the petitioner alleges that the Rastafarian Community has been denied certain religious items for use in classes and in observance of high holy days. The items consisted of Holy Icons, Lion of Judah Banners, alter cloths, a censer, frankincense and myrrh and charcoal. In the second complaint it is alleged that the Rastafarian community is no longer permitted to use the gymnasium for the consumption of sacramental meals during Rastafarian High Holy Day celebrations. The petitioner indicates that the Rastafarian faith community deems the gymnasium to be consecrated ground. It is alleged that since January 2008, the Rastafarian faith community has been required to consume religious Holy Day meals on unconsecrated grounds, that is, the prison mess hall. The Inmate Grievance Resolution Committee ("IGRC") issued a decision on September 3, 2008 which recited as follows:
"This grievance is granted with clarification; per Father Reddie, Protestant Chaplain, the only consecrated area that exists in this facility is the chapel. The matter of not eating in the gymnasium was a directive from the Superintendent of this facility and was therefore followed. The matter of religious materials being provided for Holy Day Celebrations is granted. These items have been ordered by the facility for use by the Rastafarian community and should be provided for such. Grievant is advised to communicate with Father Reddie about ordering charcoal, frankincense and myrrh."
Petitioner appealed the grievance to the Superintendent, who issued the following decision on September 11, 2008:
"This grievance is accepted in so far as the religious material that has been purchased for the Rastafarian community be allowed to be used in their services. Any additional religious materials needed should be addressed to the facility chaplain. The location for the religious services was mandated by the Superintendent.
"This grievance is accepted in part."
The petitioner appealed the decision to the Central Office, which issued the following decision on October 22, 2008:
"Upon full hearing of the facts and circumstances in the instant case, the action requested herein is hereby denied. CORC upholds the determination of the Superintendent for the reasons stated.
"CORC notes that, in accordance with Directive #
4202, it is the discretion of the Superintendent in consultation with the Coordinating Chaplain to designate places for religious worship. As such, the determination to have Rastafarian services conducted and religious meals consumed in a shared area of worship is appropriate.
"Contrary to the grievant's assertions, CORC has not been presented with sufficient evidence to substantiate any malfeasance by staff.
"CORC advised the grievant to address any further religious concerns to the facility Coordinating Chaplain."
The Court must first observe that to the extent that CORC upheld the Superintendent's determination, the matter was resolved in petitioner's favor. With respect to the balance of the grievance, other than petitioner's unsupported, conclusory allegations, no evidence is presented in admissible form, by or through a recognized authority or expert in the Rastafarian faith, to establish what the relevant tenets of the Rastafarian religion are. In other words, there is no admissible evidence in the record to support the petitioner's various contentions that his statutory or constitutional rights to practice the Rastafarian faith have been violated. This includes Rastafarian doctrine concerning the purpose and significance of consecrated ground in the Rastafarian faith; the requirement that sacramental meals be consumed upon consecrated ground; and whether or not other areas within the facility may also be consecrated for purposes of consuming religious meals.
With regard to whether the Court should take judicial notice of the tenets of the Rastafarian faith, the Court observes that" [a] court may only apply judicial notice to matters "of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof"'" ( Carter v Metro N. Assocs., 255 AD2d 251, at 251 [1st Dept., 1998], quoting Dollas v Grace Co., 225 AD2d 319, 320, quoting Ecco High Frequency Corp. v Amtorg Trading Corp., 81 NYS2d 610, 617, affd 274 App Div 982). "The fact at issue must be "generalized knowledge as [is] so notorious as not to be the subject of reasonable dispute"'" ( id., quoting Abrevaya v Palace Theatre Realty Co., 25 Misc 2d 600, 603 [Sup Ct, NY County 1960], quoting Model Code of Evidence rule 801). It has been held that a court may not take judicial notice of detailed canonical doctrine, but rather it must be proved as a matter of fact ( see Rector, Churchwardens Vestrymen of Christ's Church at Pelham v Collett, 208 App Div 695, 699 [2d Dept 1924], affd 240 NY 563).
Under all of the circumstances, the Court finds that the petitioner failed in his burden to demonstrate that respondent violated the tenets, rituals and practices of his faith, and/or that the grievance determination was arbitrary and capricious.
Grievance CX 14465-08
In this grievance, the petitioner complained of three matters. In the first, he indicated that a Rastafarian family event was held on Saturday, July 26, 2008 which commemorated the birth of His Imperial Majesty Emperor Haile Selassie I. The petitioner's faith community was not provided religious artifacts or regalia. The items included a religious portrait of His Majesty and Empress Menen, Lion of Judah Banners, altar cloths, table for altar, censer, frankincense and myrrh, and bible of the altar and rituals of opening and closing the gathering. In the second complaint, the petitioner indicated that the food provided was not what was mandated by the DOCS religious calendar menu; and that the only food received that adhered to the religious menu was a rice and beans salad. The third complaint was that the Rastafarian cooks who were previously approved for purposes of preparing the food for the holy day meal were not permitted to do so.
The IGRC meet on September 19, 2008 and issued the following decision:
"This grievance is accepted. Upon investigation, it has been determined that the proper menu was not followed nor was the approved cooks allowed to prepare the food. Rastafarian festivals should be held in accordance with the rights and privileges of the Rastafarian community."
The Superintendent, upon appeal by the petitioner, issued the following determination on September 26, 2008:
"The Food Service Administrator followed the NYS Department of Nutritional Services menu for the TAFARI Rastafarian Festival. The FSA had three registered Rastafarians working in food service department, and did not need additional cooks to prepare the food for approximately 40 inmates and guests who attended the festival. Per the facility chaplain, banners and incense are not a requirement for the presentation of food and is not a violation of the Rastafarian community.
The petitioner alleges that the three Rastafarian cooks who were assigned to the facility kitchen were not the ones approved for the Holy Day meal. According to the petitioner, under Rastafarian religious doctrine, the cooks preparing the Holy Day meal must sanctify themselves prior to the day of meal preparation through ritual cleansing, fasting, and the reading of Psalms.
"The grievance is denied."
Upon appeal to the Central Office, the following decision was issued on November 5, 2008:
"Upon full hearing of the facts and circumstances in the instant case, and upon recommendation of the Division of Nutritional Services, the action requested herein is hereby denied with clarification. CORC upholds the determination of the Superintendent for the reasons stated.
"Contrary to the grievants' assertions, CORC has not been presented with sufficient evidence to substantiate any malfeasance by staff. CORC notes that the menu for the day was the state prescribed menu, and that there were no objections expressed by the inmates prior to the event.
The Court notes that this finding comes from a memo dated July 31, 2008 from Father Reddie, the Protestant Chaplain at Coxsackie Correctional Facility to the Inmate Grievance Committee. In the memo, Father Reddie indicates that he met weekly (with two exceptions) with the Rastafarian Community from April 2008 to July 2008. Father Reddie indicates "[i]t was understood that the menu for the day would be the state prescribed menu and there were no objections."
"Further, the Food Service Administrator used the three Rastafarian mess hall workers to prepare the food, as no additional inmates were not (sic) required. CORC asserts that the artifacts, incense and banners were not a requirement for event, nor were they necessary for the presentation of the food. CORC has not been presented with sufficient evidence of violations of the rights and privileges of the Rastafarian community.
In the memo dated July 31, 2008 of Father Reddie to the Inmate Grievance Committee, Father Reddie indicated that "[t]he matter of banners and incense are not a requirement for the presentation of the food and in itself is not a violation of the rights or privileges of the Rastafarian community."
"CORC advises the grievants to address any future concerns regarding adherence to event packets to the staff advisor for the most expeditious means of resolution. There is no reimbursement due to the Rastafarians at this time.
"CORC notes that Directive #
4040, Section 701.1, states, in part, that the grievance program is not intended to support an adversary process."
Again, because the petitioner failed to submit evidence in admissible form from an authoritative source and/or expert with regard to the tenets of the Rastafarian faith, the Court finds that the petitioner failed in his burden to demonstrate that the respondent violated any of petitioner's statutory or constitutional rights, and/or that the determination was arbitrary and capricious.
Special Purpose Organization
On January 30, 2008 the petitioner submitted an application to establish a special purpose organization to be known as the Royal Sons of Judah (Rastafarians). The application form contained a box entitled "Anticipated Special Projects or Events: in which the petitioner inserted the following: "Funding Rastafarian Holy Days Celebrations". On July 7, 2008 the Superintendent of Coxsackie Correctional Facility issued the following decision:
"This is a response to you letter of June 30, 2008, in which you request permission to organize a Special Purpose Group in order to conduct a fundraiser.
"In your letter you present three reasons for the fundraiser. However, each of the three reasons described items which are provided to the Rastafarian community by the Department of Corrections. Therefore, your request to establish a Special Purpose Group is denied."
The petitioner then sought review of the determination by the Director of Hispanic and Cultural Affairs. By letter dated November 5, 2008, Héctor de la Concha, Coordinator of the New York State Division of Hispanic and Cultural Affairs, advised the petitioner that his request "has been disapproved". On November 10, 2008 the petitioner wrote a letter to Kenneth S. Pearlman, Deputy Commissioner of Program Services in the Central Office requesting a copy of decision of Mr. de la Concha and Mr. Pearlman. Mr. Pearlman, on December 12, 2008, responded by indicating that he should contact the Deputy Superintendent of Programs at Coxsacki Correctional Facility for assistance.
Under Paragraph III of Directive 4760, the application form for an inmate organization must be reviewed by four corrections officials (who make preliminary recommendations) before it reaches the Deputy Commissioner For Program Services, who then "reviews the request and determines if the request is approved, disapproved or returned." There is no evidence in the record that Kenneth S. Perlman, Deputy Commissioner of Program Services ever made a final determination.
The respondent takes the position that the petitioner failed to exhaust his administrative remedies by failing to file a grievance with regard to this matter. "It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" ( Watergate v Buffalo Sewer, 46 NY2d 52, 57, citing, Young Men's Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375). "This doctrine furthers the salutory goals of relieving the courts of the burden of deciding questions entrusted to an agency ( see, 1 NY Jur, Administrative Law, § 5 pp 303-304), preventing premature judicial interference with the administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its expertise and judgement'" ( Watergate v Buffalo Sewer, supra, citing, Matter of Fisher [Levine], 36 NY2d 146, 150, and 24 Carmody-Wait 2d, NY Prac, § 145:346). This principle has been applied with consistency in dealing with administrative determinations involving inmates ( see, Matter of Hakeem v Wong, 223 AD2d 765, 765 [3rd Dept., 1996]; Matter of Banks v Recore, 245 AD2d 906, 907 [3rd Dept., 1997]; People ex rel. King v Lacy, 252 AD2d 701, 701-702 [3rd Dept., 1998]; Matter of Archie Clarke v Senkowski, 255 AD2d 848, 849 [3rd Dept., 1998]).
Paragraph II, D of Department of Correctional Services Directive 4760 states that "[a]ll inmate organizations must be approved by the Deputy Commissioner for Program Services." A review of paragraph III of Directive 4760, reveals that there is no provision for the administrative appeal of disapprovals of applications to form a special purpose organization. The Court agrees with the respondent that petitioner's only recourse was to file a grievance under the procedures set forth in Department of Corrections Directive 4040, and Part 701 of the Rules of the Department of Correctional Services ( see 7 NYCRR Part 701). While the petitioner apparently sent letters to various Corrections Department officials, these letters were no substitute for a properly filed grievance. The Court finds that petitioner's cause of action is barred by reason of his failure to exhaust his administrative remedies.
The Court has reviewed and considered petitioner's remaining arguments and contentions and finds them to be without merit. The Court finds that the grievance determinations were not made in violation of lawful procedure, are not affected by an error of law, and are not irrational, arbitrary and capricious, or an abuse of discretion. The cause of action with regard to the determination regarding the formation of a special purpose organization must be dismissed by reason of petitioner's failure to exhaust his administrative remedies. The Court concludes that the petition must be dismissed.
Incidental to all of the foregoing, the Court finds that petitioner's motion for a preliminary injunction must be denied.
Accordingly it is
ORDERED, that the motions of Milton Powell (DIN No. XX-X-XXXX, Tyler Mitchell (DIN No. XX-X-XXXX) and NahShon Jackson to be permitted to join the proceeding as petitioners is denied; and it is
ORDERED, that petitioner's motion for a preliminary injunction is denied; and it is further
ORDERED and ADJUDGED, that the petition be and hereby is dismissed.
This shall constitute the decision, order and judgment of the Court. The original decision/order/judgment is returned to the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decision/order/judgment and delivery of this decision/order/judgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.