Panayoty v. Annucci

• Decision Date: 16 August 2012
• Docket Number: Civ. No. 9:11–CV–159 (DNH/RFT).
• Citation: 898 F.Supp.2d 469
• Parties: Ricky PANAYOTY; Angelo Bonilla; and Anthony Young, Plaintiffs, v. Anthony J. ANNUCCI, Executive Deputy Commissioner; John Nuttall, Deputy Commissioner for Program; Lucien LeClaire, Jr., Facility Operations; Mark Leonard, Director of Ministerial Service; James A. Nichols, Mid–Orange Correctional Facility; K.F. Keller, Former Acting Superintendent of Mid–Orange; Brian Fischer, Department of Correctional Services, Defendants.
• Court: U.S. District Court — Northern District of New York

898 F.Supp.2d 469

Ricky PANAYOTY; ¹ Angelo Bonilla; and Anthony Young, Plaintiffs,

v.Anthony J. ANNUCCI, Executive Deputy Commissioner; John Nuttall, Deputy Commissioner for Program; Lucien LeClaire, Jr., Facility Operations; Mark Leonard, Director of Ministerial Service; James A. Nichols, Mid–Orange Correctional Facility; K.F. Keller, Former Acting Superintendent of Mid–Orange; Brian Fischer, Department of Correctional Services, Defendants.

Civ. No. 9:11–CV–159 (DNH/RFT).

United States District Court,

N.D. New York.

Aug. 16, 2012.

Angelo Bonilla, Otisville, NY, pro se.

Anthony Young, Ogdensburg, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General of the State of New York, Adele M. Taylor–Scott, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants ².

REPORT–RECOMMENDATION and ORDER

RANDOLPH F. TREECE, United States Magistrate Judge.

Plaintiffs Angelo Bonilla and Anthony Young, who are inmates in the custody of the New York State Department of Corrections and Community Supervision (DOCCS),³ bring this civil rights action against various DOCCS officials. Dkt. No. 55, 2d Am. Compl.; see also supra note 1. Both Plaintiffs are members of the Nations of Gods and Earth (NGE) and assert that various DOCCS prison regulations, which place certain restrictions on members of NGE, violate 1) their right to freely practice their religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.; and 2) their right to equal protection under the Fourteenth Amendment. Id. Defendants move for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Dkt. No. 67. Plaintiff Bonilla filed a Response in Opposition to this Motion. Dkt. No. 69. To date, the Court has not received a response from Plaintiff Young. For the reasons that follow, this Court recommends granting in part and denying in part Defendants' Motion.

I. BACKGROUND and MATERIAL FACTS

Much of the facts associated with this action are generally agreed upon, but with some important exceptions. A brief historical narrative is warranted in order to put the issues in this litigation into perspective.⁴

The Nation of Gods and Earth was founded in the 1960s by Clarence 13X Smith, who was an associate of Malcom X and was previously a member of the Nation of Islam (NOI). See Dkt. No. 67–3, Adele Taylor Scott, Esq., Decl., dated Feb. 24, 2012, Ex. C, Angelo Bonilla Dep., dated Nov. 4, 2011, at p. 18; ⁵Marria v. Broaddus, 200 F.Supp.2d 280, 282–83 (S.D.N.Y.2002) ( “ Marria I” ). “The name ‘Nation of Gods and Earth’ is derived from the belief that male members of the group are ‘Gods,’ while females are called ‘Earths[;]’.... Clarence 13X taught his followers that they “were God the same way he was.” ” Wright v. Fayram, 2012 WL 2312076, at *2 (N.D.Iowa June 18, 2012). NGE adherents study the Bible, the Koran, and the Torah, but more from an historical perspective, and NGE members do not believe in a “mystery” or unseen god. Id.; Bonilla Dep. at pp. 15, 25, & 46. Sometimes, members of NGE are also referred to as the Five Percenters, a colloquial name derived from NOI leader Elijah Muhammad,

who separated the world's population into three categories: the Five Percent, the Ten Percent, and the Eighty–Five Percent. According to Elijah Muhammad,the Ten Percent teach the Eighty–Five Percent to believe in the existence of a “mystery God” and thereby keep the Eighty–Five Percent enslaved by having them worship something that they cannot see.... Muhammad characterized the remaining Five Percent as the poor, righteous teachers who do not believe in the teachings of the Ten Percent and instead teach the identity of the true and living God, as well as freedom, justice, and equality to all human families of the planet earth.

Marria v. Broaddus, 2003 WL 21782633, at *1 (S.D.N.Y. July 31, 2003)( “Marria II” ) (internal citations omitted); see also Bonilla Dep. at p. 30 (“A Five Percenter is a righteous person who knows ... the truth and the mystery of God.”).

The central text studied by NGE members is known as the 120 Degrees, which is also studied by members in NOI. Marria II, 2003 WL 21782633, at *1–2. Additionally, NGE members utilize “two numerology devices known as the Supreme Alphabet and Supreme Mathematics.” Id. at *3. The three forms of central NGE literature have been described as follows:

The 120 Degrees are lessons arranged in a question and answer format that represent the teachings of NOI founder Master Fard Muhammad and Elijah Muhammad. The Supreme Alphabet and Supreme Mathematics assign a word to each letter of the alphabet (almost all of which begin with the letter to which they correspond) and ten “righteous” principles to each number from 0 to 9. They are used as keys “to understand[ing] man's relationship to the universe and Islam,” as well as to understanding and interpreting the 120 Degrees.

Id. (citations omitted).

An additional piece of NGE literature is a monthly newspaper called The Five Percenter. This periodical, published by the Allah Youth Center (founded by Clarence 13X), “contains articles about current events relevant to the Nation, information about community activities, letters to the editor, editorials, and Fiver Percenter lessons and ‘plus lessons,’ including teachings from the 120 Degrees, the Supreme Alphabet, and the Supreme Mathematics.” Id. (citations omitted).

Members of NGE also have congregative gatherings known as Civilization Classes, Parliaments, and Rallies, as well as certain Honor Days, such as Allah's birthday (celebrated on the day Clarence Smith was born). Id. at *4;see also Bonilla Dep. at pp. 33–34. The Marria Court explained these congregative activities as follows:

[T]he Nation conducts “Civilization Classes,” in which more senior members—i.e., those who have studied the lessons longer than others—educate newer members about the lessons and how they can be applied.... Nation members also gather regularly for “Parliaments” and “Rallies.” During these gatherings, members come together to help one another learn their lessons, to educate one another by conversing about the lessons' meaning and application (which they call “building”), and to make decisions as a community.

Marria II, 2003 WL 21782633, at *4 (internal citations omitted); Bonilla Dep. at pp. 41–42 & 51–52.

NGE members also use an official symbol referred to as the Universal Flag. According to Bonilla's testimony,

[t]he stars are yellow and black .... symboliz[ing] the sun, black is for the black person .... [and] yellow is for every other color person. And inside of it we have seven that[ ] comes from our mathematics seven—the seventh letter in the alphabet is G for God. We have a moon, which is the woman and we have a star which is a child.

Bonilla Dep. at p. 49.

The Universal Flag is displayed on all NGE literature as well as crowns. Id. at pp. 49–50. The crowns are similar to a kufi worn by Muslims, except that they often have tassels on them symbolizing the planet and the moon, with the person representing the sun. Id. at p. 50. Crowns are worn during Parliaments and symbolize a person's status within the NGE. Id. at p. 52.

According to Defendant Anthony Annucci, DOCCS Executive Deputy Commissioner, during the 1990s, “the proliferation of gangs and gang related activities inside the New York State prison system reached critical levels and presented a very serious threat to security.” Dkt. No. 67–2, Anthony Annucci Decl., dated Feb. 23, 2012, at ¶ 6. One group identified as perpetrators of gang activity was a group known as the “Five Percenters.” Id. at ¶ 7. DOCCS personnel worried that “ ‘Five Percenter’ literature was being used as a means of legitimizing the gang and recruiting new members, and that the flags and other Five Percenter insignia and symbols were used as a means of gang identification.” Id. at ¶ 9. Similarly, there was concern that the “Supreme Alphabet” and “Supreme Numbers” were used as a code by which messages were sent amongst inmates to plan gang activity. Id. at ¶ 10. In response, DOCCS classified “Five Percenters” as an “unauthorized” group, “and viewed membership in that group as an organized threat to prison security.” Id. at ¶ 11. No distinction was made between so-called “Five Percenters” and NGE adherents, and a total ban on all NGE literature, and anything containing NGE symbols or emblems, was instituted. Id., Ex. B. Thus, any inmate found in possession of the Supreme Alphabet, Supreme Mathematics, The Fiver Percenter publication, the NGE flag, and/or the 120 Degrees ⁶ would be disciplined for possessing contraband.

In 2003, however, following a non jury trial, the Honorable Naomi R. Buchwald, United States District Judge for the S.D.N.Y., ruled that the inmate-plaintiff's beliefs in NGE were both sincere and religious in nature thus entitling him to RLUIPA and First Amendment protections, and further found that DOCCS' classification of NGE as a security threat and the total ban on NGE literature violated the prisoner-plaintiff's free exercise rights under the First Amendment and RLUIPA. Marria II, 2003 WL 21782633. In rendering this ruling, Judge Buchwald recognized the important security interest DOCCS has and the “possibility that ‘the Five Percenters' may somewhat uniquely connote both a religion and a gang in the New York State prison system (though the sincere religious adherents and gang members may not be the same inmates).” Id. at *18 (emphasis in original). Nevertheless, because DOCCS' policy of a total ban was not the least restrictive means to further its compelling security interest, District Judge Buchwald directed that certain relief be afforded to NGE adherents, such as the right of NGE adherents to possess a copy of the 120 Degrees, the Supreme Alphabet, and the Supreme Mathematics. Id. at *18–20. Other issues, such as The Five Percenter, symbols such as the Universal Flag, congregational opportunities, and observance...