Ross v. Coughlin

• Decision Date: 30 July 1987
• Docket Number: No. 86 Civ. 1277 (SWK).,86 Civ. 1277 (SWK).
• Citation: 669 F. Supp. 1235
• Parties: Gerald ROSS, Plaintiff, v. Thomas A. COUGHLIN III, et al. Defendants.
• Court: U.S. District Court — Southern District of New York

669 F. Supp. 1235

Gerald ROSS, Plaintiff, v. Thomas A. COUGHLIN III, et al. Defendants.

No. 86 Civ. 1277 (SWK).

United States District Court, S.D. New York.

July 30, 1987.

Phyllis Gelman, New York City, for plaintiff.

Robert Abrams, Atty. Gen. of State of N.Y., New York City by Anne Ehrenkranz, Asst. Atty. Gen., for defendant.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Plaintiff, Gerald Ross, is an orthodox Jewish inmate in the custody of New York State's Department of Correctional Services ("DOCS"). Ross seeks declaratory and injunctive relief as well as monetary damages against state prison officials. Plaintiff's claims are grounded in the First and Fourteenth Amendments of the United States Constitution, as well as the Civil Rights Act of 1871, 42 U.S.C. § 1983¹. Specifically, plaintiff claims defendants have violated his right to receive kosher food, his freedom to possess and use religious articles necessary to practice and observe his religion, and his freedom to maintain untrimmed facial hair, in accordance with Jewish laws.

Defendant, the Attorney General of New York (the "State"), moved to dismiss the case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure asserting that the action was moot, relief was barred by the Eleventh Amendment, and plaintiff failed to state a claim under either the First or Fourteenth Amendment or 42 U.S.C. § 1983.

Defendant's motions were assigned to Magistrate Bernikow for a report and recommendation. Magistrate Bernikow provided this court with a report recommending that the defendant's motions be denied. The case is before this court on defendant's objections to the report. For the reasons that follow defendant's objections are without merit and the Magistrate's report is adopted.

FACTS

The facts as alleged in the complaint are as follow. The plaintiff is an observant Jewish prisoner. He comes from an orthodox Jewish family and attended Chassidic Rabbinical schools for the entirety of his education. Ross believes in the Jewish laws of kashruth², the wearing of a yarmulke at all times³, the use of tephilin⁴ and tsitsith⁵, and the prohibition against shaving or trimming his facial hair. The sincerity of his religious beliefs have not been challenged and are not in question.

On May 16, 1985, after Ross was convicted of first degree rape and first degree robbery and sentenced, he was moved to Downstate Correctional Facility, New York's reception and processing center where inmates from city and county jails have their first contact with the New York State correctional system. The reception process includes photographing inmates, examining their belongings, searching their person and clothes, showering, and cutting their hair. Upon arrival Ross went through this initial screening, during which he first encountered resistance to his religious practices by New York State prison officials.

Ross was taken off the transfer bus at 2:30 p.m. on May 16, 1985, led into the "draft room" and allegedly told by a prison official to, "get that shit off your head," referring to Ross' yarmulke. He also had in his possession tephilin and tsitsith. As Ross explained the religious significance of these objects a prison official told him to, "keep his mouth shut or the guard would ram the club down Ross' throat." Ross complied with the orders and was told to sit in the waiting room, "but to be careful of the Nazis in there."

At 4:00 p.m. prison officials called Ross to the search table and found his religious articles. An official allegedly asked, "What type of shit do you call this?" slammed the tefillin on the table and announced, "You can't have this shit here. Either send it home, or we'll destroy it." When Ross asked to see the directives on religious matters the official allegedly pulled out his club and told plaintiff, "Keep your fucking mouth shut and when you're told to do something here, you do it without question, or you'll find yourself in some trouble you won't be able to get out of." During his nine week stay at Downstate, none of Ross' religious articles were returned to him, except for his yarmulke.

Shortly thereafter, Ross was told by officials to shave his head and beard. Before arriving at Downstate, Ross had obtained a letter from the Legal Aid Society stating that he could keep his beard until he could receive a letter from his Rabbi showing the sincerity of his belief and the importance of beard length in Jewish law. Ross was told by the official, "Wipe your ass with the Legal Aid Society letter and shave yourself, or Farrell will shave you." After showering, Ross was pushed into the barber's chair and poked with clubs while prison officials shaved his head and beard.

At 5:30 p.m. Ross was told to dress and then get his food. When Ross explained that he only ate kosher food, he was allegedly told, "Where the fuck do you think you are, a Holiday Inn. You eat what's here or starve, cause you're in my home now, and I don't cater to no Jew bastards." During Ross' stay at Downstate he ate only bread, fruit, dry cereal and water. He lost a substantial amount of weight because of this restricted diet.

On July 19, 1985 Ross was transferred to Green Haven Correctional Facility. Ross continued to encounter difficulties in the observation of his religious beliefs. The most significant problem was his beard. On arrival he was directed to trim his beard to be no longer than one inch, in accordance with directive # 4914 on prison "grooming standards." Again, Ross refused and was disciplined by a prison official. After a letter was written by Rabbi Kasriel Kastel, and due to this pending litigation prison officials agreed to temporarily allow Ross to maintain his beard length beyond one inch.

Since arriving at Green Haven Ross has been allowed to keep and wear his religious articles except when he is receiving visitors. Ross has not, however, consistently received kosher meals. During the first week of his incarceration at Green Haven Ross received no kosher food. Intermittently, he has been deprived kosher meals when taken to the dining room too late and the food is gone or he is not given enough time to eat. Ross remains in the custody of DOCS at Green Haven Correctional Institution.

DISCUSSION

In a motion to dismiss, the allegations of a complaint should be construed favorably to the pleader and not dismissed, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The issue is not whether the plaintiff will ultimately prevail on his claims, but only whether he should be entitled to offer evidence in support of those claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). For claims seeking relief under 42 U.S.C. § 1983, a plaintiff only need allege that a person acting under the color of state law deprived him of federal rights. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Green v. Maraio, 722 F.2d 1013, 1016 (2d Cir.1983).

I. FIRST AMENDMENT

The First Amendment provides that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The free exercise clause is made applicable to the states by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303-07, 60 S.Ct. 900, 903-05, 84 L.Ed. 1213 (1940). In applying this constitutional right to convicted prisoners, two general principles have recently been reaffirmed by the Supreme Court in O'Lone v. Estate of Shabazz, ___ U.S. ___, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) and Turner v. Safley, ___ U.S. ___, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

First, "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison" Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979); Accord Turner v. Safley, ___ U.S. ___, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Basic First Amendment rights are not among those that "a prisoner sheds at the prison gate." Procunier v. Martinez, 416 U.S. 396, 422, 94 S.Ct. 1800, 1815, 40 L.Ed.2d 224 (1974). (Marshall, J., concurring); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). A prisoner has the right to participate in practices which are an integral part of his religious belief. Moorish Science Temple of America v. Smith, 693 F.2d 987, 990 (2d Cir.1982).

Second, a prisoner's rights must be balanced against a State's right to limit First Amendment freedoms to meet valid penological objectives, including the deterrence of crime, rehabilitation of prisoners, and particularly institutional security. Pell, 417 U.S. at 822, 94 S.Ct. at 2804; Procunier, 416 U.S. at 412, 94 S.Ct. at 1811. In evaluating inmate claims of constitutional deprivations, federal courts should, "give appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar ... circumstances of penal confinement." Jones v. North Carolina Prisoners, 433 U.S. 119, 125, 97 S.Ct. 2532, 2537, 53 L.Ed. 2d 629 (1977). Accord Turner v. Safley, ___ U.S. ___, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

In Turner v. Safley, the Supreme Court set out a new standard to balance prisoner rights against a State's need for legitimate correctional goals. "When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, ___ U.S. at ___, 107 S.Ct. at 2261. Drawing upon previous cases the Court identified three particular factors relevant to the "reasonable" determination test.

First, "a regulation must have a logical connection to legitimate government interests invoked to justify it." Turner, ___ U.S. at ___, 107 S.Ct. at 2262. The beard-trim regulation challenged by Ross does not meet...