Fair v. Smith

• Decision Date: 08 March 2012
• Citation: 2012 N.Y. Slip Op. 01707,93 A.D.3d 964,940 N.Y.S.2d 339
• Parties: Ayinde FAIR, Appellant, v. Joseph T. SMITH, Individually and as Superintendent of Shawangunk Correctional Facility, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01707

93 A.D.3d 964

940 N.Y.S.2d 339

Ayinde FAIR, Appellant,

v.Joseph T. SMITH, Individually and as Superintendent of Shawangunk Correctional Facility, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

March 8, 2012.

Ayinde Fair, Napanoch, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.

Before: MERCURE, Acting P.J., PETERS, MALONE JR., KAVANAGH and McCARTHY, JJ.

KAVANAGH, J.

Appeal from an order of the Supreme Court (Cahill, J.), entered August 13, 2010 in Ulster County, which granted defendants' motion to dismiss the complaint.

Plaintiff is a prison inmate who, as part of his observance of the Yoruba/Santeria faith, wears bead necklaces. Department of Corrections and Community Supervision Directive No. 4202 states that an inmate may, with a permit, “possess and wear, but not display, religious beads ... for use in the practice of an inmate's documented religion,” but that such beads “may be worn only underneath clothing so they are not visible.” According to plaintiff, in February 2009, while he was en route to a prison event, he was stopped by defendant Linda Nelson, a correction sergeant, and told that he had to wear a collared shirt to cover the beaded necklace that he was wearing. Plaintiff subsequently filed a grievance with prison officials, complaining that Nelson, by directing that he wear a collared shirt, had discriminated against him and was guilty of harassment. In March 2009, the Inmate Grievance Review Committee determined that while plaintiff could not be required to wear a collared shirt, prison regulations required that any beads he wore not be visible, even at the neck line. Plaintiff appealed this determination to defendant Joseph T. Smith, the facility Superintendent, who denied his grievance noting that the “display of beads ... is a legitimate security concern” and that Nelson's “actions were in keeping with sound correctional practice.” Plaintiff appealed Smith's decision to the Central Office Review Committee, which found that Nelson, by seeking to enforce a prison regulation, was not guilty of harassment and had not engaged in conduct constituting a form of illegal discrimination. After plaintiff commenced this action alleging, among other things, that his constitutional rights had been violated, Supreme Court granted defendants' motion to dismiss, finding that a viable cause of action had not been set forth in the complaint. Plaintiff now appeals.

Plaintiff claims that his rights under the U.S. and N.Y. Constitutions, as well as the Religious Land Use and Institutionalized Persons Act (hereinafter RLUIPA) ( see 42 U.S.C. § 2000cc) had been violated by Nelson's efforts to enforce this prison regulation. In that regard, we note that an inmate's right to practice his or her religion may be limited by prison officials without running afoul of the U.S. Constitution, so long as the restriction is “ ‘reasonably related to legitimate penological interests' ” ( Salahuddin v. Goord, 467 F.3d 263, 274 [2d Cir.2006], quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 [1987] ). According to RLUIPA, a state penal authority may not “impose a substantial burden” on an inmate's religious practice unless it can show that any such limitation “furthers a compelling governmental interest by the least restrictive means” reasonably available under all of the attendant circumstances ( Salahuddin v. Goord, 467 F.3d at 273–275; see 42 U.S.C. § 2000cc–1[a]; Cutter v. Wilkinson, 544 U.S. 709, 715, 125 S.Ct. 2113, 161 L.Ed.2d 1020 [2005] ). The N.Y. Constitution also provides that the legitimacy of limits placed on an inmate's right to practice his or her religion depends upon “a balancing of the competing interests at stake: the importance of the right asserted and the extent of the infringement are weighed against the institutional needs and objectives being promoted” ( Matter of Lucas v. Scully, 71 N.Y.2d 399, 406, 526 N.Y.S.2d 927, 521 N.E.2d 1070 [1988]; accord Jackson v. Coughlin, 204 A.D.2d 939, 940, 612 N.Y.S.2d 89 [1994]; Matter of Bunny v. Coughlin, 187 A.D.2d 119, 121, 593 N.Y.S.2d 354 [1993], lv. dismissed 82 N.Y.2d 679, 601 N.Y.S.2d 567, 619 N.E.2d 645 [1993] ).

Here, prison officials contend that gang members in the prison community wear necklaces as a means of communicating with each other, and such communications represent a threat to institutional security. This...