| Fair v Smith |
| 2012 NY Slip Op 01707 [93 AD3d 964] |
| March 8, 2012 |
| Appellate Division, Third Department |
| Ayinde Fair, Appellant, v Joseph T. Smith, Individuallyand as Superintendent of Shawangunk Correctional Facility, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
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, wearsbead necklaces. Department of Corrections and Community Supervision Directive No. 4202states 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, inFebruary 2009, while he was en route to a prison event, he was stopped by defendant LindaNelson, a correction sergeant, and told that he had to wear a collared shirt to cover the beadednecklace 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 himand was guilty of harassment. In March 2009, the Inmate Grievance Review Committeedetermined that while plaintiff could not be required to wear a collared shirt, prison regulationsrequired that any beads he wore not be visible, even at the neck line. Plaintiff appealed thisdetermination to defendant Joseph T. Smith, the facility Superintendent, who denied hisgrievance noting that the "display of [*2]beads . . . isa legitimate security concern" and that Nelson's "actions were in keeping with sound correctionalpractice." Plaintiff appealed Smith's decision to the Central Office Review Committee, whichfound that Nelson, by seeking to enforce a prison regulation, was not guilty of harassment andhad not engaged in conduct constituting a form of illegal discrimination. After plaintiffcommenced this action alleging, among other things, that his constitutional rights had beenviolated, Supreme Court granted defendants' motion to dismiss, finding that a viable cause ofaction had not been set forth in the complaint. Plaintiff now appeals.
Plaintiff claims that his rights under the US and NY Constitutions, as well as the ReligiousLand Use and Institutionalized Persons Act (hereinafter RLUIPA) (see 42 USC §2000cc) had been violated by Nelson's efforts to enforce this prison regulation. In that regard, wenote that an inmate's right to practice his or her religion may be limited by prison officialswithout running afoul of the US Constitution, so long as the restriction is " 'reasonably related tolegitimate penological interests' " (Salahuddin v Goord, 467 F3d 263, 274 [2d Cir 2006],quoting O'Lone v Estate of Shabazz, 482 US 342, 349 [1987]). According to RLUIPA, astate penal authority may not "impose a substantial burden" on an inmate's religious practiceunless it can show that any such limitation "furthers a compelling governmental interest by theleast restrictive means" reasonably available under all of the attendant circumstances(Salahuddin v Goord, 467 F3d at 273-275; see 42 USC § 2000cc-1 [a];Cutter v Wilkinson, 544 US 709, 715 [2005]). The NY Constitution also provides thatthe legitimacy of limits placed on an inmate's right to practice his or her religion depends upon "abalancing of the competing interests at stake: the importance of the right asserted and the extentof the infringement are weighed against the institutional needs and objectives being promoted"(Matter of Lucas v Scully, 71 NY2d 399, 406 [1988]; accord Jackson v Coughlin,204 AD2d 939, 940 [1994]; Matter of Bunny v Coughlin, 187 AD2d 119, 121 [1993],lv dismissed 82 NY2d 679 [1993]).
Here, prison officials contend that gang members in the prison community wear necklaces asa means of communicating with each other, and such communications represent a threat toinstitutional security. This directive represented an attempt to address this concern, and thelimitations it imposed on plaintiff did not impact in a meaningful way on his ability to practicehis religion. As such, Supreme Court properly dismissed these claims for failing to state a causeof action.
As for plaintiff's equal protection claim, he must demonstrate that when cited by Nelson, hewas treated differently from similarly situated individuals because of his race, religion or someother constitutionally protected classification (see Cleburne v Cleburne Living Center,Inc., 473 US 432, 439 [1985]; Matter of Walton v New York State Dept. of Correctional Servs., 57AD3d 1180, 1185 [2008], affd 13 NY3d 475 [2009]). While plaintiff claims thatother inmates who wore religious artifacts were not similarly disciplined, he does not suggest thatthose artifacts and the way they were worn presented the same security concerns that were raisedby the manner in which he was wearing the bead necklace when stopped by Nelson. "[T]hereasonableness of the prison rules and policies must be examined to determine whetherdistinctions made between religious groups in prison are reasonably related to legitimatepenological interests" (Benjamin v Coughlin, 905 F2d 571, 575 [2d Cir 1990], certdenied 498 US 951 [1990]; see Campos v Coughlin, 854 F Supp 194, 213 [1994]).Here, such a relationship existed between the regulation and the security concerns it sought toaddress, and plaintiff's [*3]claims were therefore properlydismissed by Supreme Court.[FN*]
Mercure, A.P.J., Peters, Malone Jr. and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: As a result, there is no reason todetermine whether, as found by Supreme Court, defendants were entitled to qualified immunity.