Sunday, February 17, 2008

Recent Prisoner Free Exercise Litigation

In Figel v. Overton, (6th Cir., Feb. 6, 2008), the U.S. 6th Circuit Court of Appeals agreed with a lower court that prison officials could not claim qualified immunity in a case arising after RLUIPA was enacted. Even though the Supreme Court had not yet ruled on its constitutionality, RLUIPA became clearly established law when it was signed. An erroneous 6th Circuit decision on the constitutionality of RLUIPA came after the conduct at issue in the case.

In Salaam v. McKee, 2008 U.S. Dist. LEXIS 9770 (WD MI, Feb. 11, 2008), a federal district court adopted a magistrate's report rejecting a complaint that prison authorities scheduled Muslim Jumu'ah services at a time that is inappropriate under Islamic law. The magistrate had concluded that the service schedule was motivated by a compelling governmental interest in separating prisoners of different security levels.

In Winford v. Frank, 2008 U.S. Dist. LEXIS 9907 (ED WI, Feb. 8, 2008), a court rejected free exercise claims by a prisoner who was a Satanist and who was denied access to several requested Satanic religious books. The court found that plaintiff had not shown he was unable to practice Satanism without these publications, and that there were legitimate safety and security reasons for denying him the books.

In Jebril v. Joslin, 2008 U.S. Dist. LEXIS 10611 (SD TX, Feb. 12, 2008), a Texas federal district court rejected a prisoner's claim that his right to practice his Muslim faith was infringed by authorities' labeling him a terrorist and subjecting him to increased scrutiny. Plaintiff, however, was permitted to move ahead with his claim that requiring that all inmates wear their pants uncuffed infringed his free exercise of religion. The court also permitted him to move ahead with his claim that he was harassed in retaliation for practicing his faith.

Van Wyhe v. Reisch, 2008 U.S. Dist. LEXIS 10779 (D SD, Feb. 13, 2008), involved a claim by a prisoner that he was denied his rights under the 1st Amendment and RLUIPA when he was taken off a kosher diet for 30 days as a sanction for consuming non-kosher food. A South Dakota federal district court granted summary judgment to defendants on several claims, but permitted plaintiff to move ahead with his claim against some of the defendants under RLUIPA. It held however that plaintiff would be limited to recovering nominal monetary damages.

In Carmony v. County of Sacramento, 2008 U.S. Dist. LEXIS 11137, February 13, 2008, Decided, (ED CA, Feb. 14, 2008), a California federal magistrate judge rejected an inmate's complaint that his free exercise rights were violated when he was not permitted to attend Bible study classes. The court concluded that plaintiff's religious beliefs were not sincerely held. He testified that he wished to attend to relieve his boredom. Also he was in court at most times when the classes were held.

In Beasley v. Kontek, 2008 U.S. Dist. LEXIS 10747, (ND OH, Jan. 8, 2008), an Ohio federal district court denied a motion for appointment of counsel and a motion to extend time to file an appellate brief by a prisoner who became an Orthodox Jew while in prison and wanted to wear a beard and sidelocks. In an earlier decision in the case, 2007 U.S. Dist. LEXIS 96302 (ND OH, Nov. 5, 2007), the court had already held that plaintiff's claim for injunctive relief was moot because of a change in the prison's grooming policy and that plaintiff had failed to exhaust his administrative remedies. (Also see prior related posting.)

Meanwhile, Saturday's New York Times reports on a pending religious freedom lawsuit brought by a Hasidic rabbi serving a sentence for fraud at a federal penitentiary in Otisville, NY. Plaintiff wants the Bureau of Prisons to change its policy on where inmates can pray. He argues that his cell, which contains a toilet, is an unclean place under Jewish law for him to pray. He says that Muslims and Buddhists have similar beliefs. Federal prisoners are not permitted to pray in common spaces, and prison chapels are usually not open enough hours to accommodate prisoners who need to pray several times each day. Prison chaplain authorities say that prayers are banned from common areas because they could be threatening to other prisoners, or could make them feel uncomfortable.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Mordechai Samet,
Plaintiff,
- against -
Federal Bureau of Prisons; and
Harley G. Lappin, Director of Bureau of
Prisons; Harrell Watts, Bureau of Prisons
General Counsel Office; D. Scott Dodrill,
Northeast Regional Director, Bureau of
Prisons; Frederick Menifee, former Warden of
FCI Otisville Correctional Facility; Craig
Apker, Warden of FCI Otisville Correctional
Facility; Gerard Tomaino, FCI Otisville
Correctional Facility Unit Manager; and
Cynthia Robbins, former Correctional Officer
at FCI Otisville Correctional Facility,
individually and in their official capacities.
Defendants.
Case No.: 05 Civ. 8795 (BSJ) (RLE)
ECF Case
PLAINTIFF SAMET’S MEMORANDUM OF LAW
IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT
Shima Baradaran
Mark W. Rasmussen
KIRKLAND & ELLIS LLP
Citigroup Center
153 East 53rd Street
36th Floor
New York, New York 10022-4611
Telephone: (212) 446-4800
Facsimile: (212) 446-4900
Charles G. Wentworth (pro hac vice)
KIRKLAND & ELLIS LLP
200 East Randolph
Chicago, Illinois 60601
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
-i-
TABLE OF CONTENTS
Page
Table of Authorities ....................................................................................................................... iii
Introduction.....................................................................................................................................1
Undisputed Material Facts ...............................................................................................................2
A. Rabbi Samet is a Devout Member of the Hasidic Community....................2
B. Hasidism Prohibits Prayer in an Unclean Place and Requires That
Prayer be Conducted Before Eating Anything.............................................2
C. BOP Policy Prohibits Prayer Outside of an Inmate’s Prison Cell. ..............4
1. The BOP’s National Prayer Policy. .................................................5
2. The BOP’s Former Prayer Policy at FCI Otisville. .........................6
3. The BOP’s Current Prayer Policy at FCI Otisville..........................7
D. Rabbi Samet Has Been Punished for Praying Both Inside and
Outside of his Cell. ......................................................................................9
E. The BOP’s Alleged Justifications for Prohibiting Prayer in
Common Areas. .........................................................................................11
Argument ......................................................................................................................................12
I. The BOP’s Actions Violate the Religious Freedom Restoration Act....................12
A. The BOP’s Prohibition on Ritual Prayer Outside an Inmate’s Cell
Substantially Burdens Samet’s Religious Beliefs......................................14
B. The BOP has No Compelling Interest Justifying its Actions With
Respect to Samet’s Religion. .....................................................................17
C. The BOP’s Restrictions are Not Applied in the Least Restrictive
Means Available. .......................................................................................22
II. BOP Prayer Policies are Unconstitutionally Vague in Violation of Due
Process as They Do Not Put Inmates on Notice as to What Religious
Conduct is Prohibited or Provide Explicit Standards to Officers for
Enforcement...........................................................................................................25
TABLE OF CONTENTS (cont’d)
Page
-ii-
A. The BOP’s Regulations are Especially Problematic Because They
Mete Out Criminal Punishments for the Exercise of Basic First
Amendment Freedoms. ..............................................................................26
B. The BOP’s Local Policy at FCI Otisville Fails to Give Inmates
Adequate Notice that Praying in Common Areas is Prohibited. ...............28
C. The BOP Fails to Provide Adequate Training to its Officials and
Gives Them Too Much Discretion to Enforce the Prison’s
Regulation of Prayer. .................................................................................31
D. The BOP’s National, Unwritten Policy is Unconstitutionally
Vague. ........................................................................................................34
Conclusion ....................................................................................................................................35
-iii-
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).................................................................................................. 12
Campos v. Coughlin,
854 F. Supp. 194 (S.D.N.Y. 1994).............................................................................. 19, 20
Chatin v. Coombe,
186 F.3d 82 (2d Cir. 1997)......................................................................................... passim
City of Boerne v. Flores,
521 U.S. 507, 532 (1997).................................................................................................. 13
City of Richmond v. J.A. Croson,
488 U.S. 469, 507 (1989)............................................................................................ 23, 24
Davidson v. Davis,
1995 WL 60732 (S.D.N.Y. Feb. 14, 1995)................................................................. 14, 15
Doro v. Sheet Metal Workers’ Intern. Ass’n,
498 F.3d 152 (2d Cir. 2007).............................................................................................. 12
Ford v. McGinnis,
352 F.3d 582 (2d Cir. 2003).............................................................................................. 14
Fujitsu Ltd. v. Fed. Express Corp.,
247 F.3d 423 (2d Cir. 2001).............................................................................................. 12
Gartrell v. Ashcroft,
191 F. Supp. 2d 23 (D.D.C. 2002) .............................................................................. 17, 23
Grayned v. City of Rockford,
408 U.S. 104, 109 (1972)................................................................................ 26, 27, 28, 31
Hoffman Estates v. Flipside, Hoffman Estates,
455 U.S. 489, 498 (1981).................................................................................................. 27
Hunter ex rel. Brandt v. Regents of Univ. of Calif.,
190 F.3d 1061 (9th Cir. 1999) .................................................................................... 23, 24
Jackson v. Mann,
196 F.3d 316 (2d Cir. 1999).............................................................................................. 14
TABLE OF AUTHORITIES (cont’d)
Page(s)
-iv-
Jeffreys v. City of New York,
426 F.3d 549 (2d Cir. 2005).............................................................................................. 12
Jolly v. Coughlin,
76 F.3d 468 (2d Cir. 1996).................................................................................... 13, 17, 19
Kikumura v. Hurley,
242 F.3d 950 (10th Cir. 2001) .......................................................................................... 13
Kolender v. Lawson,
461 U.S. 352, 357 (1983).................................................................................................. 28
Madison v. Riter,
355 F.3d 310 (4th Cir. 2003), cert. denied, 545 U.S. 1103 (2005) ................................... 13
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).................................................................................................. 12
Muhammad v. City of N.Y. Dep’t. of Corr.,
904 F. Supp. 161, 188 (S.D.N.Y. 1995)............................................................................ 13
Patrick v. LeFever,
745 F.2d 153 (2d Cir. 1984).............................................................................................. 14
Salahuddin v. Goord,
467 F.3d 263 (2d Cir. 2006).............................................................................................. 22
Sandin v. Conner,
515 U.S. 472, 485 (1995).................................................................................................. 25
Sherbert v. Verner,
374 U.S. 398, 407 (1963).................................................................................................. 22
U.S. v. Hardman,
297 F.3d 1116 (10th Cir. 2002) ........................................................................................ 22
United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803, 824 (2000)............................................................................................ 23, 24
Wisconsin v. Yoder,
406 U.S. 205 (1972).......................................................................................................... 13
Statutes
42 U.S.C. § 2000bb(b)(1) ............................................................................................................. 13
42 U.S.C. § 2000bb-1 ................................................................................................................... 13
TABLE OF AUTHORITIES (cont’d)
Page(s)
-v-
42 U.S.C. § 2000bb-1(b)............................................................................................................... 17
Fed. R. Civ. P. 56(c) ..................................................................................................................... 12
Other Authorities
H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. (1993).................................................................. 19
S. Rep. No. 103-111, 103rd Cong., 1st Sess. (1993) .................................................................... 17
INTRODUCTION
For nearly five years, Defendant Federal Bureau of Prisons (“BOP”)1 has violated
Plaintiff Rabbi Mordechai Samet’s rights by preventing him from praying in a manner consistent
with his religious beliefs. The BOP has enacted policies and established practices that leave him
no option but to pray in his prison cell, which violates his religion because the cell contains a
toilet. Additionally, BOP’s policies regarding prayer are unconstitutionally vague, fail to grant
sufficient notice to inmates, and grant too much discretion to prison officials, thus violating
Rabbi Samet’s Fifth Amendment due process rights. Since the new prayer policy issued by the
BOP in December 2007 fails to correct these problems, Rabbi Samet now moves for partial
summary judgment.
Rabbi Samet has been an inmate in the custody of the BOP at FCI Otisville Correctional
Facility in Otisville, New York (“FCI Otisville”) since 2003. He has been an observant Hasidic
Jew his entire life. As such, he believes that he must pray three times a day in a clean and
undefiled place. The BOP, however, has prohibited Rabbi Samet from conducting his prayers in
accordance with his beliefs by establishing policies and practices that prevent him from offering
prayer in any place other than his cell. But since his cell contains a toilet Rabbi Samet’s religion
forbids him from praying there because, under Jewish law, such a room is unclean.
Rabbi Samet has tried to pray in other areas of the prison but has been disciplined by the
BOP for doing so. And, although Rabbi Samet has requested that he be allowed to offer his
1 The Defendants in this case will collectively be referred to in this brief and the accompanying Statement of
Material Facts as “Federal Bureau of Prisons” or “BOP” and include all Defendants named in the First
Amended Complaint: FEDERAL BUREAU OF PRISONS; HARLEY G. LAPPIN, Director of Bureau of
Prisons; HARRELL WATTS, Bureau of Prisons General Counsel Office; D. SCOTT DODRILL, Northeast
Regional Director, Bureau of Prisons; FREDRICK MENIFEE, former Warden of FCI Otisville Correctional
Facility; CRAIG APKER, Former Warden of FCI Otisville Correctional Facility; GERARD TOMAINO, FCI
Otisville Correctional Facility Unit Manager; and CYNTHIA ROBBINS, former Correctional Officer at FCI
Otisville Correctional Facility, individually and in their official capacities. See First Amended Complaint ¶ 7-
14.
2
prayers in the prison chapel or in other prison common areas, the BOP has denied these requests,
leaving him with no appropriate place to conduct his prayers.
Accordingly, the BOP has violated Rabbi Samet’s right to freely practice his religion,
ignoring the mandate of the United States Constitution and the United States Congress. Instead,
the BOP has established vague regulations, which prevent Rabbi Samet from knowing what
religious conduct is prohibited within the prison and punish him for exercising his religious
beliefs. Rabbi Samet filed this lawsuit to remedy these wrongs, and now moves for summary
judgment on Counts I and IV of his Amended Complaint.
UNDISPUTED MATERIAL FACTS
A. Rabbi Samet is a Devout Member of the Hasidic Community.
Rabbi Mordechai Samet has been a practicing Hasidic2 Jew his entire life. (SMF ¶¶ 3, 5)
Rabbi Samet was ordained a rabbi in 1979 after studying Jewish law for five years. (SMF ¶ 3)
He is currently a member of the Toldos Aharon congregation, which is a Hasidic Jewish
community, based in Monroe, New York, that adheres to all of the traditions and requirements of
the Hasidic Code of rules and regulations. (SMF ¶ 5) Before Rabbi Samet was incarcerated,
each morning he would join other members of the Toldos Aharon congregation to pray in a
minyan (a group of ten observant Jews) in a synagogue and to conduct a mikvah (a ritual
washing in a pool of water). (SMF ¶ 5)
B. Hasidism Prohibits Prayer in an Unclean Place and Requires That Prayer be
Conducted Before Eating Anything.
Devout members of Hasidism, such as Rabbi Samet, must comply with all aspects of
Jewish law and tradition. (SMF ¶ 5) According to Jewish law, he must conduct three prayers
each day. (SMF ¶ 9) The timing of each prayer is dictated by the location of the sun, and thus
2 Hasidic may also be spelled “Chasidic” or “Hassidic.”
3
the specific times change throughout the season. (SMF ¶ 9) According to this rule, Rabbi Samet
typically begins his morning prayers between 7:00 a.m. and 9:00 a.m., and they last
approximately one hour. (SMF ¶ 7, 10) While praying, he speaks in Hebrew and conducts
wordless melodies called “nigguns” while concentrating on every word of the prayer. (SMF
¶ 10) These prayers also include ritual movements such as shokeling (i.e., swaying back and
forth), require the use of religious items called tefelin and tallis, and may be whispered or said
aloud. (SMF ¶ 12) As such, the BOP considers Hasidic Jewish prayers to be “demonstrative” or
“ritual prayers.”3 (SMF ¶ 36, 65)
Rabbi Samet’s religious practice also includes the daily study of religious texts, such as
the Talmud, while reciting the Tehilim (psalms or praises), or while praying. (SMF ¶ 12) While
studying his religious texts, Rabbit Samet shokels. (SMF ¶ 12) Although shokeling is
commonly associated with praying, Hasidic Jews who shokel while studying are not necessarily
praying at the same time. (SMF ¶ 12)
One fundamental tenant of Hasidism is that an observer may not conduct prayer or
religious study in a place that is unclean or impure: “Five things disqualify [prayer] and one of
them is the purity of the place [where one prays].” (SMF ¶ 13) As such, if a believer prays in a
place that is unclean or impure, the prayer is not acceptable and must be repeated. (SMF ¶ 13)
For this reason, Jewish law specifically prohibits believers from conducting prayers in locations,
such as Rabbi Samet’s prison cell, that are near a toilet. (SMF ¶ 13) Rabbi Nochum Laskin, the
3 The BOP also considers prayers offered by Muslim inmates — which include physical movements such as
kneeling and bowing on the floor while reciting a formulaic prayer — to be demonstrative or ritual. (SMF
¶¶ 36, 65)
4
Supervisory Chaplain at FCI Otisville and BOP’s subject-matter expert4 on Jewish law,
confirmed this prohibition:
Q. Have you ever conducted your morning prayers in the bathroom?
A. No.
Q. Why is that?
A. Because if it’s a bathroom, you should not pray in a bathroom.
(SMF ¶ 14)
Additionally, Hasidic Jews, like Rabbi Samet, must not consume any food before
conducting their morning prayers. (SMF ¶ 8) FCI Otisville’s dining hall, however, is only open
for breakfast from 6:00 a.m. to 6:40 a.m., and inmates are generally not permitted to remove any
food from the dining hall. (SMF ¶ 90) Because Rabbi Samet typically cannot complete his
morning prayer before 7:00 a.m., he must choose between foregoing his morning prayer so he
can eat breakfast in the dining hall and foregoing breakfast in the dining hall so he can offer his
morning prayer. (SMF ¶ 90)
C. BOP Policy Prohibits Prayer Outside of an Inmate’s Prison Cell.
The BOP regulates the place and manner of inmates’ religious practices. (SMF ¶¶ 35-74)
It does so by promulgating policies at the national level and the local level. (SMF ¶¶ 35-74) At
issue in this case are four policies — the current national policy, two former local policies in
force at FCI Otisville, and the current local policy in force at FCI Otisville — each of which
4 By agreement of the parties and order of this Court, expert discovery was not conducted prior to the filing of
dispositive motions. Thus, Rabbi Samet does not concede that Chaplain Laskin qualifies as an expert witness in
this regard and reserves his right to challenge such a designation at a future date. Nevertheless, the BOP refers
to Chaplain Laskin its Jewish subject matter expert, treating this as one of his job titles. It is in this respect that
Rabbi Samet refers to Chaplain Laskin, and not in sense that he is, for evidentiary purposes, an expert witness
under Federal Rule of Evidence 702. See Endorsed letter signed by Magistrate Judge Ellis, Jan. 17, 2008
(Docket Number 50).
5
govern where inmates may offer prayer. Inmates who violate these policies are subject to
discipline. (SMF ¶ 28, 31, 56-57)
1. The BOP’s National Prayer Policy.
The BOP has promulgated a number of rules regarding inmates’ religious practices at the
national level. (SMF ¶ 35-38) Most of these rules are set forth in Federal Bureau of Prisons
Program Statement P5360.09, “Religious Beliefs and Practices.” (SMF ¶ 35) This written
program statement describes in detail BOP’s national policies regarding, among other things,
when religious wine is permitted, when visitors are permitted to participate in religious services
with inmates, and even specific religious property inmates are permitted to have with them in
their cells. (SMF ¶ 35) It does not indicate, however, where, when, or how an inmate is
permitted or not permitted to pray in prison. (SMF ¶ 35) In fact, unlike most of its other
religious policies, the BOP’s national policy regarding prayer is unwritten and is not publicly
accessible.
Instead, the BOP disseminates this particular policy orally to its employees through
yearly staff-training meetings and discussions at BOP institutions. (SMF ¶ 36) It does not
inform inmates of the unwritten national prayer policy. (See SMF ¶ 36) Through the staff
trainings, the BOP encourages its institutions to prohibit inmates from conducting ritual prayers
anywhere outside of their cells or the chapel at designated times. (SMF ¶ 36) The Head of
Chaplaincy Services for the BOP directly encourages all BOP institutions, including FCI
Otisville, to follow this prayer policy. (SMF ¶ 36) The National BOP prayer policy was echoed
by the BOP Regional Director, Scott Dodrill in a memorandum reminding all BOP institutions in
his region that no inmate in any institution in the region should be permitted to pray in common
areas or to participate in congregate prayer with other inmates. (SMF ¶ 38) In accordance with
these instructions, all BOP institutions (except a few temporary placement centers) have
6
promulgated local policies that prohibit prayers in common areas. (SMF ¶ 36) The BOP
reviews and approves these local policies at BOP institutions. (See SMF ¶ 74)
2. The BOP’s Former Prayer Policy at FCI Otisville.
Prior to December 2007, BOP’s local prayer policy in force at FCI Otisville was
contained in FCI Otisville Institutional Supplement: Religious Beliefs and Practices of
Committed Offenders. (SMF ¶¶ 40, 64) That policy stated that “communal prayer is not
permitted in the housing units.” (SMF ¶ 40) Though the term “communal” was not defined in
the policy statement, according to the Chaplain at FCI Otisville, it was intended to prohibit
individual prayer in the common areas at FCI Otisville (i.e., prayer was not permitted outside of
an inmate’s cell or the chapel) and group prayer (i.e., more than one inmate praying together) in
the housing units. (SMF ¶ 43-64) This understanding, however, was far from consistent. (SMF
¶¶ 43-64) Inmates who violated this policy were subject to discipline. (SMF ¶¶ 28, 31, 56-57)
BOP employees at FCI Otisville typically learn about the policy on prayer from Chaplain
Laskin during an annual training. (SMF ¶ 58) He informs all BOP staff that inmates are not
allowed to pray in any of the prison’s common areas. (SMF ¶ 58) But he does not distribute the
policy for FCI Otisville staff to review. (SMF ¶ 58) Nor does BOP include any training on how
to recognize when inmates are offering prayer, or whether the prayer policy also prohibits
inmates from conducting religious study in common areas (SMF ¶¶ 56, 59, 99), others simply
did not know what the policy was with respect to religious study. (SMF ¶¶ 45, 55, 56, 57) As a
result, the local prayer policy at FCI Otisville was not uniformly understood or applied. (SMF
¶¶ 43-63) For example, some staff members allowed inmates to pray in small groups in an
inmate’s cell, while others prohibited such gatherings. (SMF ¶¶ 45, 46, 47)
The BOP’s local prayer policy was not given to inmates upon entering FCI Otisville, nor
was it posted anywhere for inmates to read. Rather, a copy of the policy is placed in the
7
institution’s library. (SMF ¶¶ 40, 61-63) Upon arriving at FCI Otisville, inmates receive a copy
of the FCI Otisville Inmate Handbook during the Admission and Orientation process. (SMF
¶ 61) This handbook, however, does not mention the local prohibition on prayer in common
areas. (SMF ¶ 40, 61) Instead, it vaguely states that “[r]eligious [s]ervices occur in the chapel
area.” (SMF ¶ 61) However, it does not define “religious services” and does not even mention
prayer. (SMF ¶ 61)
3. The BOP’s Current Prayer Policy at FCI Otisville.
In December 2007, while defending this lawsuit, the BOP changed the language of its
local prayer policy in force at FCI Otisville. (SMF ¶ 64) The substance of the new policy is
substantially the same as the application of the previous policy and is contained in FCI Otisville
Institutional Supplement: Religious Beliefs and Practices of Committed Offenders, OTV
5360.09c. (SMF ¶ 65)
The current policy contains a definition of “prayer rituals,” which includes, among other
things, “conduct in which … an inmate is wearing ritual prayer clothing”; is using “ritual prayer
objects, such as prayer beads or a prayer rug”; is “reciting a formulaic prayer audibly,” such that
an individual who is nearby can hear the prayer; or is engaged in “ritual movements commonly
associated with prayer,” such as bowing, kneeling or swaying. (SMF ¶ 65) The current policy
restricts these “prayer rituals” to four specific locations: (1) the prison chapel and outside
worship area5; (2) the inmate’s cell; (3) the dining hall, where “short blessings over [inmates’]
food” only are allowed; (4) work sites and education areas6, if prior permission is granted. (SMF
5 Prayer in the “outside worship area” is only allowed on very limited occasions and only for Native American
and Odinist Inmates. (SMF ¶ 69)
6 The Supervisory Chaplain at FCI Otisville who drafted this supplement and answers all questions related to the
policy stated that only Muslim inmates, who have a limited amount of time to conduct their prayers during the
day, are granted permission to conduct prayers in work sites and educational areas. (SMF ¶¶ 42, 69)
8
¶ 65) Group prayer rituals are permitted in the prison chapel and outside worship area and may
be allowed in an inmate’s cell if authorized by the “unit team” (i.e., the BOP employees assigned
to that specific unit). (SMF ¶ 65) Thus, this policy leaves discretion to BOP employees in
deciding whether inmates will be permitted to pray in small groups in an inmate’s cell. (SMF
¶ 65)
Like its predecessor, this policy permits prayer rituals by a Jewish inmate, such as Rabbi
Samet, to be conducted only in the chapel or in the inmate’s cell. (SMF ¶ 68) At FCI Otisville,
the prison chapel is shared by inmates of all faiths and is primarily used for group religious
services. (SMF ¶¶ 37, 76) The chapel is not open to all inmates of all faiths at all times. (SMF
¶ 76) Instead, inmates are permitted to conduct ritual prayers or group worship in BOP chapels
during designated times.7 (SMF ¶ 37) At FCI Otisville, the prison chapel is not available for
Jewish inmates to conduct their daily prayers. (SMF ¶ 76) The chapel is not open each morning
during the time that Rabbi Samet needs to conduct his morning prayers (usually between 7:00
a.m. and 9:00 a.m.), and is not open each afternoon and evening during the time he needs to
conduct his other daily prayers. (SMF ¶ 37) Thus, the combination of the BOP’s prayer policy
and the limited access to the FCI Otisville prison chapel leaves Rabbi Samet with no place other
than his prison cell to conduct his daily prayer rituals. (SMF ¶ 76, 80) Many inmates of other
religions have been denied similar such accommodations from the BOP national headquarters,
after first appealing to their local BOP institutions and regional offices. (SMF ¶ 77) In fact, in
2005-06 alone at least ten inmates filed requests for similar prayer accommodations with the
BOP headquarters, which were all denied. (Id.)
7 For example, the FCI Otisville chapel is now open for Jewish inmates on Sundays, from 8:00 a.m. to 9:30 a.m.,
Fridays from 7:00 p.m. until about 9:00 p.m., and for a few hours on Saturday morning starting at 8:00 a.m.
(SMF ¶ 37)
9
Also like the old local policy, this new policy is still not distributed to each inmate.
(SMF ¶ 67) Instead, a memorandum has been posted in each of the housing units informing
them that “Institutional Supplement OTV 5360.09c Religious Beliefs and Practices of
Offenders” has been “implemented” and has “new language . . . on several religious topics.”
(SMF ¶ 67) The inmates are not informed of the new language of the policy in the
memorandum. (SMF ¶ 67) In order to review the new policy, inmates must go search for it in
the prison law library. (SMF ¶ 67) While the new policy has been e-mailed to all staff at FCI
Otisville, no training or instruction on the purposes or meaning of the policy is conducted. (SMF
¶ 67) Nor is any instruction provided to staff members to help them recognize the “prayer
rituals” defined in the new policy. (SMF ¶ 67)
D. Rabbi Samet Has Been Punished for Praying Both Inside and Outside of his
Cell.
Rabbi Samet has been warned on several occasions not to pray outside of his cell and has
been punished for “conducting religious activities8 in a common area” (the prison typing room).9
(SMF ¶ 91) He was charged with performing two prohibited acts — namely, refusing to obey an
order of any staff member (code 307), and conduct that disrupts or interferes with the security or
orderly running of the institution (code 399).10 (SMF ¶ 91) These two charges resulted from a
BOP correctional officer, Ms. Cynthia Robbins, finding Rabbi Samet early one morning reading
a religious book in a common area while shokeling. (SMF ¶ 91) Ms. Robbins had warned him in
8 Rabbi Samet testified that he was actually reading a religious text while swaying back and forth which the BOP
officer interpreted as prayer. (SMF ¶ 91)
9 The typing room is a room in the common area of housing unit GB, where Rabbi Samet is housed. (SMF ¶ 78)
10 The conviction for conduct that disrupts or interferes with the security or orderly running of the institution was
expunged from his record during the BOP review process because it could not be substantiated. (SMF ¶ 93)
10
the past that he was not allowed to pray in common areas, although she did not recall being
trained to distinguish prayer from religious study. (SMF ¶¶ 91, 45, 56)
Each of the charges made against Rabbi Samet falls under the “moderate category” of
prohibited acts and is subject to various sanctions including forfeiture of earned good time
credits (meaning that an inmate may not earn early release from prison), disciplinary transfer, or
segregation, or loss of privileges. (SMF ¶¶ 29-30) For this incident, Rabbi Samet received a
sanction of 60 days loss of commissary privileges, which was suspended on the condition that he
did not receive any disciplinary reports for 180 days. (SMF ¶ 93) Nevertheless, that sanction
remained on his official record and negatively impacts his accrual of good time credit that can
lead to an early release from prison.11 (SMF ¶ 30)
Although at times Rabbi Samet has been punished for praying outside of his cell, on
some occasions he and inmates of other religions have been able to pray in common areas at FCI
Otisville. (SMF ¶¶ 85, 86, 104-06) Some BOP employees do not enforce the restriction on
prayer in common areas and allow inmates to pray in the prison common areas. (SMF ¶¶ 104-
06) Two inmates testified that they have seen Muslim, Jewish, and Christian inmates pray in
common areas of the institution. (SMF ¶¶ 104-06) Additionally, on days where he believes the
BOP employee on duty will allow him to pray (such as when he is unable to go to the chapel due
to adverse weather), Rabbi Samet asks permission to pray outside of his cell in a common area in
his unit. (SMF ¶¶ 85, 86)
11 Three days before filing this brief, Counsel for the BOP informed Counsel for Rabbi Samet that the BOP had
decided to expunge from his record Rabbi Samet’s April 2004 incident report that he received for “conducting
religious activities in a common area.” Rabbi Samet welcomes this decision to expunge the 2004 incident
report and looks forward to seeing the supporting evidence, but notes that Rabbi Samet received other
punishment under the former FCI Otisville policy. BOP must also expunge from his record the November 2007
incident report that Rabbi Samet received under the former policy for covering the toilet in his cell with a
blanket in order to pray according to his beliefs. (SMF ¶ 81)
11
Most days, however, Rabbi Samet does not want to risk being punished for praying
outside of his cell, or believes that he will not be given permission to do so. (SMF ¶ 85) On
those days, he cleans his toilet area and covers his toilet with a sheet or blanket to provide a
separation and then prays in his cell. (SMF ¶¶ 80, 81) Though he feels uncomfortable doing this
and believes that it violates his religion, he has no other choice but to do so. (SMF ¶ 82)
However, despite a purported unwritten policy allowing him to cover the toilet, on November 16,
2007, Rabbi Samet was disciplined for covering his toilet with a sheet and blankets. (SMF ¶ 81)
Accordingly, Rabbi Samet cannot conduct his morning prayers according to his religion without
risking punishment by the BOP.
E. The BOP’s Alleged Justifications for Prohibiting Prayer in Common Areas.
The BOP has justified not allowing inmates to pray outside of their cells by stating
concerns that ritual prayers make other inmates “uncomfortable” or are “threatening” to other
inmates. (SMF ¶ 95) The BOP has stated that ritual prayers of Muslims and Jews can be
threatening because they are “not something that is a part of our national culture or our general
experience in this country.” (SMF ¶ 95) The BOP is also concerned that inmate prayers infringe
on the space that other inmates may use. (SMF ¶¶ 100, 103) For example, the BOP claimed that
inmates cannot walk in front of a Jewish inmate who is praying, or he will disrupt his prayer.
(SMF ¶ 103) Finally, the BOP is concerned about a potential “inequity problem” of one inmate
getting more space if he was first to arrive in the common area to pray, and of all the common
space being used for prayers rather than other activities. (SMF ¶ 103) But despite these
concerns, there was little evidence that religious activities in the common areas actually cause
problems. (SMF¶ 97, 101, 104-13)
12
ARGUMENT
Rabbi Samet’s Motion for Summary Judgment should be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Doro v. Sheet Metal Workers’
Intern. Ass’n, 498 F.3d 152, 155 (2d Cir. 2007). A “dispute about a material fact is ‘genuine’ . . .
if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and
it is “[t]he movant [who] has the burden of showing that there is no genuine issue of fact;”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 256 (1986). However, to defeat a motion for
summary judgment, the nonmoving party must show more than “a scintilla of evidence,” “some
metaphysical doubt as to the material facts,” or “conclusory allegations or unsubstantiated
speculation;” rather, the opposing party “must offer some hard evidence showing that its version
of the events is not wholly fanciful” and is such that a “jury could reasonably find for [it].”
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (emphasis added) (quoting
Anderson, 477 U.S. at 252; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986); Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001).
The undisputed facts demonstrate that Rabbi Samet is entitled to summary judgment on
two of his claims. Indeed, the evidence demonstrates that the BOP violated the Religious
Freedom Restoration Act (“RFRA”) and that the BOP’s regulations are unconstitutionally vague
under the Fifth Amendment’s Due Process Clause. Samet addresses each of these claims in turn.
I. The BOP’s Actions Violate the Religious Freedom Restoration Act.
The BOP cannot justify its actions under the heightened level of scrutiny Congress has
required for religious exercise claims arising under RFRA. RFRA provides that the
“[g]overnment shall not substantially burden a person’s exercise of religion even if the burden
13
results from a rule of general applicability” unless it satisfies strict scrutiny by advancing a
“compelling governmental interest” and shows that its actions represent the “least restrictive
means of furthering that compelling interest.”12 42 U.S.C. § 2000bb-1; see also Jolly v.
Coughlin, 76 F.3d 468, 474-75 (2d Cir. 1996). The Second Circuit has expressly held that
RFRA applies to religious claims made by prison inmates. Id. at 475; see also Muhammad v.
City of N.Y. Dep’t. of Corr., 904 F. Supp. 161, 188 (S.D.N.Y. 1995) (“RFRA applies to the
claims of prisoners”).13
Here, the undisputed facts confirm that Rabbi Samet’s religious activities have been
burdened by the BOP’s actions. They also confirm that the BOP cannot set forth a compelling
governmental interest that would justify its actions or demonstrate that its actions are the least
restrictive means of furthering any purported compelling interest.
12 RFRA provides in pertinent part that:
(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a
rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that
application of the burden to the person
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling interest.
42 U.S.C. § 2000bb(b)(1). With the passage of RFRA, Congress sought to restore the “compelling
governmental interest” or “strict scrutiny” test of two earlier Free Exercise cases — namely, Sherbert v.
Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972).
13 While the Supreme Court invalidated RFRA as applied to States and their subdivisions, City of Boerne v.
Flores, 521 U.S. 507, 532-36 (1997), the federal government, and the federal prisons, are still subject to RFRA,
Madison v. Riter, 355 F.3d 310, 315 (4th Cir. 2003), cert. denied, 545 U.S. 1103 (2005); Kikumura v. Hurley,
242 F.3d 950, 959 (10th Cir. 2001).
14
A. The BOP’s Prohibition on Ritual Prayer Outside an Inmate’s Cell
Substantially Burdens Samet’s Religious Beliefs.
There is no question that the BOP’s actions have severely restricted Rabbi Samet’s ability
to practice his religion. The inquiry into the burden on Rabbi Samet’s religious beliefs is a
subjective one, asking only whether he “sincerely holds” the beliefs affected. Ford v. McGinnis,
352 F.3d 582, 588-89 (2d Cir. 2003); Jackson v. Mann, 196 F.3d 316, 318, 321 (2d Cir. 1999).
Thus, even if the BOP or other religious scholars disagree with Rabbi Samet’s interpretation of
Jewish law — that it prohibits prayer in a prison cell containing a toilet, even where the toilet is
cleaned and covered — the fact that Rabbi Samet sincerely believes this satisfies RFRA’s
requirements. As the Second Circuit noted in Patrick v. LeFever, courts have “jettisoned the
objective, content-based approach previously employed to define religious belief, in favor of a
more subjective definition of religion, which examines an individual’s inward attitudes towards a
particular belief system.” 745 F.2d 153, 157 (2d Cir. 1984) (internal citation omitted). In
addition, Rabbi Samet has demonstrated under RFRA that “the government’s action pressures
him to commit an act forbidden by his religion or prevents him from engaging in conduct or
having a religious experience mandated by his faith.” Davidson v. Davis, 1995 WL 60732, at *5
(S.D.N.Y. Feb. 14, 1995).
It is undisputed that Rabbi Samet is a member of a Hasidic Jewish community and is a
sincere follower of the Jewish faith. (SMF ¶ 5) As a practicing Hasidic Jew, it is also
undisputed that Rabbi Samet believes he must offer three prayers a day, including a morning
prayer lasting almost one hour. (SMF ¶ 9)
Jewish law requires that Rabbi Samet offer his morning prayer in a place that is clean and
undefiled. (SMF ¶ 13) It is Rabbi Samet’s sincerely held belief that any room containing a toilet
is impure and not an appropriate location for prayer. (SMF ¶ 13) This belief that a bathroom is
15
unsuitable for prayer was even confirmed by the BOP’s Nochum Laskin, Supervisory Chaplain
at FCI Otisville, who is himself an observant Jew:
Q. Have you ever conducted your morning prayers in the bathroom?
A. No.
Q. Why is that?
A. Because if it’s a bathroom, you should not pray in a bathroom.
(SMF ¶ 14). As a solution, Chaplain Laskin merely proposed that, because odor is a problem
under Jewish law, “when an inmate defecates, he should flush right away” — as if flushing
would somehow make a cell an acceptable place to pray. (SMF ¶ 14)
The BOP prayer policies defines the specific areas where inmates may pray. For
instance, individual and congregated prayer may be offered in the prison’s chapel or during
breaks while inmates are at work. (SMF ¶¶ 40-41) Neither of these locations, however, are
available to Rabbi Samet during the times he is required to offer his prayers.14 (SMF ¶ 42)
Under the new policy, inmates may also offer congregate prayer in their cells, but only with the
permission of the unit team. (SMF ¶ 65)
Through the current BOP prayer policy (both written and unwritten), the BOP
“pressures” Rabbi Samet to commit an act “forbidden by his religion” by giving him no other
place to conduct his prayers besides his cell. Davidson, 1995 WL 60732, at *5. The BOP has
forced Rabbi Samet into a position every day where he has to choose between violating the laws
of his religion and breaking the rules of the BOP. If he chooses to pray as his beliefs require, he
must do it in his cell in violation of Jewish law. In his own words, he prays in his cell “because
14 Rabbi Samet would need that the chapel be open each morning at the latest by 8:00 a.m. so that he may conduct
his daily morning prayers there. The chapel schedule states that the chapel is open from 8:00 to 9:00 a.m. a few
days of the week and a few afternoons a week, but this does not satisfy Rabbi Samet (or other Jewish inmates)
who have to pray each morning, afternoon, and evening in a clean place. This also does not satisfy Muslim
inmates who have to pray at sunrise, when the chapel is not open. (SMF ¶ 37)
16
there’s no choice. Against my feeling, and it’s a big damage in mine.” (SMF ¶ 82) But if he
prays outside of his cell in one of the common areas in his unit, he violates the BOP’s prayer
policy and risks discipline if any BOP employee sees him offering his prayers.
In fact, the BOP has punished Rabbi Samet for praying both outside of his cell and inside
of it. (SMF ¶¶ 75-94) In April 2004, a BOP employee saw Rabbi Samet reading a religious text
while swaying back and forth in a common area and gave him an incident report. (SMF ¶ 91)
For this, Rabbi Samet received a loss of privileges to purchase food at the commissary15 and the
report remains on his record, possibly affecting his ability to receive early release. (SMF ¶ 93)
Then on November 16, 2007, Rabbi Samet was punished for having a sheet hanging in his cell
— the very thing that the BOP has suggested that he do in order to cover the toilet and allow him
to pray in his cell. (SMF ¶ 81)
Finally, even though BOP institutions provide meals for inmates, in order for Rabbi
Samet to receive breakfast he has to eat between 6:00 a.m. and 7:00 a.m. — before he conducts
his morning prayers and in violation of his religious beliefs. (SMF ¶ 90) To resolve this, Rabbi
Samet often chooses to buy his own breakfast from the commissary. (SMF ¶ 90) But sometimes
that has been denied to him, as part of the punishment he receives for exercising his religious
beliefs. (SMF ¶ 90) Thus, he must either choose to eat the meal the prison provides him, or to
practice religion and then be denied even the opportunity to purchase his meals himself. These
are precisely the kind of Hobson’s choices the RFRA protects inmates from having to make.
The undisputed evidence is that these actions by the BOP have substantially burdened
Rabbi Samet’s ability to practice his religion. Indeed, both the former and current and unwritten
and written BOP policies banning ritual prayer in common areas prevent him from practicing his
15 This sanction was suspended because Samet displayed good conduct for 180 days. (SMF ¶ 93)
17
religion as he is required.16 Pursuant to these policies, the BOP has punished him for offering his
prayers both inside and outside of his cell. Rabbi Samet has thus established a prima facie case
under RFRA.
B. The BOP has No Compelling Interest Justifying its Actions With Respect to
Samet’s Religion.
The BOP has not pointed to a single justification that would enable it to carry its burden
of demonstrating that there is a compelling governmental interest justifying its prayer policy.
See Jolly, 76 F.3d at 477 (citing RFRA, 42 U.S.C. § 2000bb-1(b)) (holding that the burden of
proving the “compelling interest test” is on the government); Gartrell v. Ashcroft, 191 F. Supp.
2d 23, 39 (D.D.C. 2002) (ruling that the BOP failed to demonstrate that housing inmates in state
prisons where Muslim and Rastafarian inmates were forced to cut their hair and beards was the
least restrictive means of achieving a compelling government interest). Any justification put
forth by the BOP must be “compelling” and must be based on something other than “mere
speculation, exaggerated fears, or post-hoc rationalizations.” Id. (quoting from Senate Report on
RFRA, S. Rep. No. 103-111, 103rd Cong., 1st Sess. (1993)); Jolly, 76 F.3d at 479 (same)
(alteration omitted).
One justification put forth by BOP for banning ritual prayer in prison common areas is
that ritual prayer makes other inmates “uncomfortable” and is “threatening” to other inmates.
(SMF ¶ 95) The BOP has specifically singled-out Jewish and Muslim prayers — which involve
ritual movements such as swaying, kneeling and bowing and speaking in Hebrew and Arabic —
from other “familiar” prayers that are silent and involve no ritual movements. (SMF ¶ 95) In
particular, the BOP Chaplaincy Services Administrator stated that ritual prayers of Muslims and
Jews in particular can be threatening because they are “not something that is a part of our
16 See Section I.C.1 and C.2.
18
national culture or our general experience in this country.” (SMF ¶ 95) A unit manager at FCI
Otisville, Gerard Tomaino, testified on behalf of the BOP that prayer is prohibited in common
areas because “there are some inmates that may be offended by it.” (SMF ¶ 95)
Another similarly unavailing justification the BOP has named for its prayer policy is that
prayer takes up space and can cause “safety” problems among inmates. Specifically, the BOP
fears that a Jewish or Muslim inmate may block access to the door of a room in which they are
praying. (SMF ¶ 103) The BOP expressed concerns about interrupting a praying inmate who is
acting as such a “physical obstacle,” and even if they pray away from the door, “for those five
minutes, you can’t walk.” (SMF ¶ 103)
But as Chaplain Laskin admitted, this concern can be readily resolved by requiring that
inmates pray in a corner of a common area rather than in the entryway, as they currently do when
praying in the workplace or education under existing exceptions to the prayer policy. (SMF
¶ 103) That this concern is based on merely speculative fears is confirmed by the fact that the
BOP could identify only one instance (occurring nearly thirty years ago) when such prayers have
caused safety problems in the past, despite testimony that some guards look the other way when
inmates offer prayers in common areas. (SMF ¶¶ 84, 97, 104-06)
Another supposed interest that the BOP has advanced is that it would be inequitable if
inmates were allowed to pray in common areas because the inmates who arrived there first
would have more space than those who arriving later, causing a “race” among inmates to obtain
space to pray in the common areas. (SMF ¶ 72) However, this concern is simply a reality of the
prison environment where so many people live in such close quarters. In this respect, there is no
difference between inmates praying in the common areas and inmates doing any other secular
activity in the common areas. Inmates sitting at a table playing chess or reading Shakespeare
19
necessarily take the space that other inmates may have wanted to use for chatting or reading the
Bible. It is simply the nature of a common space that when one inmate is using it for a certain
purpose, less space is left for another inmate to use it for the same or a different purpose. There
is no evidence that an inmate conducting a religious activity creates more conflict than when one
is conducting a secular activity. In fact, all of the testimony from inmates in this case indicates
that religious and nonreligious inmates respect each other’s prayers (even when conducted
against BOP rules in common areas) and try to not disturb them. (SMF ¶¶ 92, 98, 107-113)
The only plausible justification the BOP has identified for its prayer policy is prison
security. But this Court, the Second Circuit, and Congress have all rejected such a justification
where it is based purely on “speculation, exaggerated fears [and] thoughtless policies.” Campos
v. Coughlin, 854 F. Supp. 194, 207 (S.D.N.Y. 1994) (quoting from House Report on RFRA,
H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. (1993)); Jolly, 76 F.3d at 474-75. In a similar case
in this Court, inmates practicing the Santeria religion sought the right to wear religious beads
under their clothing, or place them on a non-publicly displayed shrine. Campos, 854 F. Supp. at
207. Prison officials denied the request, citing possible problems with prison gangs as their
justification. Id. This Court explained that it was “troubled by defendants’ complete rejection of
plaintiffs’ proposal based on what defendants speculatively describe as an ‘enforcement
problem.’” Id. at 208. As a result, this Court enjoined the prison under RFRA, the First
Amendment and the Equal Protection Clause from prohibiting the wearing of Santeria beads as
required by the plaintiffs’ religion. Id. at 214.
The BOP’s concerns about prison security problems resulting from allowing prayer in
common areas is similarly based on “exaggerated fears” and speculative “enforcement
problems.” First, the BOP has given no more detailed an explanation than did the prison
20
officials in Campos for why Rabbi Samet’s suggested methods of accommodating his religion
would cause security problems. BOP officials, including wardens, local chaplains, and the
national head of chaplaincy services, have identified no concrete security concerns to justify
disallowing prayer outside inmates’ cells. And while BOP officials testified that there could be
security issues with inmates praying in common areas and thus disturbing other inmates, none
produced evidence necessary to support the government’s heavy burden under RFRA. (SMF
¶¶ 95-103)
Second, Chaplain Laskin admitted that there have been no fights at FCI Otisville as a
result of inmates praying. He claimed that this is due to the fact that such prayers are prohibited
and do not in fact occur. (SMF ¶ 98) But we know that is not the case, as Mr. Tomaino,
Mr. Onwuanzombe, and Mr. Champagne all testified that they have see inmates — Muslim,
Jewish, and Christian — praying individually and in groups in common areas without any
problems occurring. (SMF ¶¶ 104-13) In fact, only one BOP official could recall a fight he
thought may have occurred sometime between 1978 and 1982 due to an inmate praying in a
common area.17
Nor could the BOP provide more than speculative reasons demonstrating that conducting
a demonstrative prayer (standing while swaying and reciting a prayer) in a common area is any
more disruptive than similar secular conduct such as talking, reading out loud, laughing, cheering
for a sports team while watching television, or playing a game with other inmates. 18 (SMF
17 Warden Menifee testified that he arrived “toward the end of” a fight that occurred between two inmates. He
believed that the fight resulted when one of the inmates felt he was disrespected by another during his prayers.
He thought that this occurred when he was a boiler operator at FCI Engelwood, but admitted that he could not
remember all the details, or even precisely when it happened. “It was many years ago. I’m not sure.” (SMF
¶ 97)
18 Though according to the BOP, playing games and talking is allowed while praying and reading religious books
is not.
21
¶¶ 24-25) Indeed, Warden Apker testified that under the former written BOP Policy inmates
could kneel down to put on a shoe or sway while listening to music. (SMF ¶ 24) And the new
policy only bans such movements where they are “not obviously unconnected to religious
activity,” thereby permitting the same conduct when done for secular reasons. (SMF ¶ 65
(emphasis added))
Third, Rabbi Samet initially received discipline for “conduct which disrupts or interferes
with the orderly running of [the] facility” because he was “reading his Bible, swaying back and
forth” in a common area. (SMF ¶ 91) But this charge was later expunged by the BOP because,
as Mr. Tomaino testified, “I didn’t feel [the] conduct was disruptive.” (SMF ¶ 93) Although Mr.
Samet was not in fact praying at that time, he was shokeling as part of his religious study. Had
he been praying, Rabbi Samet would have also been shokeling, but while wearing his religious
clothing. But as Mr. Tomaino admitted, this shokeling was not disruptive and didn’t need to be
punished. (SMF ¶ 93) Thus, even though there was no question that Rabbi Samet was shokeling
— the very conduct he would have engaged in had he been praying — there was still “not
sufficient evidence to support a finding that” he had disrupted the prison. (SMF ¶ 32)
Q. Are inmates allowed to play checkers together in common areas if they’re not disturbing
others?
A. Yes, yes.
Q. And are inmates allowed to play other games in common areas at FCI Otisville if they’re not
disturbing other people?
A. Yes.
Q. Are inmates allowed to talk to each other in common areas if they’re not disturbing other
people?
A. Yes.
. . .
Q. So there’s an absolute prohibition on reading religious books [aloud], whether in groups or
individually, in common areas at FCI Otisville?
A. Yes.
Q. Is individual prayer outside of a cell, in common areas permitted?
A. No.
(SMF ¶ 25)
22
Given this, the BOP cannot demonstrate that any specific security or safety concern will
result if it allows Rabbi Samet to conduct ritual prayer outside his cell as he did on April 15,
2004 when — as the BOP has already determined — he was not disrupting the prison’s security.
Nor can the BOP demonstrate that its decision to not provide Rabbi Samet with a space in which
to pray — either the chapel or some other location in the housing units — is necessary to further
a compelling interest.19 As such, the BOP policies are in violation of RFRA.
C. The BOP’s Restrictions are Not Applied in the Least Restrictive
Means Available.
Even if the BOP could meet its burden of proving a compelling governmental interest for
not allowing inmates to pray in common areas, it still would be unable to demonstrate that its
current prayer restrictions are the least restrictive means of achieving their alleged penological
ends. Salahuddin v. Goord, 467 F.3d 263, 275 (2d Cir. 2006). To satisfy RFRA, the BOP must
“demonstrate that no alternative forms of regulation would combat such abuses without
infringing First Amendment rights.” Sherbert v. Verner, 374 U.S. 398, 407 (1963) (emphasis
added). Or as the Tenth Circuit has explained, the BOP must present, “hard evidence indicating
that the current regulations are narrowly tailored to advance the government’s interests, and
[must also] address the possibility of other, less restrictive means of achieving these interests.”
U.S. v. Hardman, 297 F.3d 1116, 1129-30, 1132 (10th Cir. 2002). Indeed, the BOP cannot meet
its burden to prove least restrictive means unless it has actually considered and rejected the
19 The BOP has also mentioned that another justification for their prayer policy is that it is not possible to train
staff properly to be able to know when an inmate is praying or not because of all of the various religions of
inmates at BOP institutions and the different ways they pray. (See SMF ¶ 99) This is not a compelling state
interest, but even if it were, it is illogical that the lack of understanding of BOP employees would dictate a more
restrictive prayer policy. As noted above, a staff member gave Rabbi Samet an incident report for praying when
he was actually studying a religious text (without his prayer shawl), because she misinterpreted what Rabbi
Samet was doing. (SMF ¶ 91) The lack of or difficulty in training staff members is no excuse for a more
restrictive policy, but actually argues for a less restrictive policy. The more staff members are punishing
inmates for conducting religious activities, the more training these staff members should have to ensure that
inmates are not being improperly punished. See Section III.C.
23
efficacy of less restrictive measures before adopting the challenged practice. Gartrell, 191 F.
Supp. 2d at 39-40 (citing United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 824 (2000)
(finding, in the context of a First Amendment challenge to speech restrictions, that “[a] court
should not assume a plausible, less restrictive alternative would be ineffective”)); City of
Richmond v. J.A. Croson, 488 U.S. 469, 507 (1989) (finding city’s minority set-aside program
was not narrowly tailored in part because the city had not considered whether race-neutral
measures would have achieved the government’s interest); Hunter ex rel. Brandt v. Regents of
Univ. of Calif., 190 F.3d 1061, 1078 (9th Cir. 1999) (finding that government “neglected to
undertake any consideration -- let alone serious, good faith consideration” of race-neutral
alternatives) (internal quotation marks and citation omitted).
There is no “hard” evidence in the record demonstrating that the current BOP prayer
policy is the least restrictive means of advancing the BOP’s interests. Viable less restrictive
alternatives exist for the BOP, including: (1) open the chapel during the time Rabbi Samet20
needs to conduct his prayer;21 or (2) allow inmates to pray in common areas in their housing
units as long as they do not block any doors and do not disturb other inmates.
Indeed, FCI Otisville has already, on certain occasions, allowed these to occur, each time
without disruption of prison security or good order. For instance, Muslim inmates are permitted
to pray in common areas where they work when the “window” for them to conduct their prayer
is “closing.” (SMF ¶¶ 42, 65) In addition, when the FCI Otisville Captain makes a call of
“adverse weather” (i.e. fog that inhibits visibility), thereby prohibiting the inmates from leaving
20 Muslim, Buddhist, Christian, and other Jewish inmates would also benefit from this policy since they also need
to pray outside of their cells for their morning prayer because they believe their cells are unclean. (SMF ¶ 16)
21 This option should also include allowing inmates to take food from the dining hall at breakfast so they may eat
after their prayers, as required by many inmate’s religion. This would not be unprecedented for the BOP as it
allows inmates to receive food from the dining hall after fasts, so it is an accommodation the BOP frequently
makes and would be able to do without difficulty. (SMF ¶ 90)
24
their housing units to travel to the chapel, some BOP staff allow inmates, including Rabbi Samet,
to conduct their prayers in the common areas of their housing units. (SMF ¶ 84) Opening the
chapel a few hours earlier is also a less restrictive alternative that the BOP should have
considered, given that it has a practice of opening the chapel earlier than 8:00 a.m. on certain
religious holidays. (SMF ¶ 87) The fact that at least two different approaches have been taken
by BOP on other occasions demonstrates that there are less restrictive alternatives to the BOP’s
current prayer restrictions.
Not only are there less restrictive alternatives to BOP’s prayer policy, BOP has admitted
that it did not consider any of these alternative approaches when drafting the current prayer
policy.
Q. In drafting this policy, did you consider the alternate of opening the chapel
earlier than 8 a.m. for inmates to conduct their morning prayers?
A. No.
Q. . . . in drafting this policy, did you consider allowing inmates to pray in a
common area in their housing unit?
A. No.
. . . . .
Q. In drafting this policy, did you consider for certain inmates who have
objections of praying in their cell, did you consider creating a walled area
separating the toilet from the rest of the cell . . . to accommodate certain inmates?
A. No.
(SMF ¶ 70). Because BOP did not consider less restrictive alternatives to the ban on prayer in
common areas, it cannot satisfy its burden to prove that no less restrictive alternative exists.
Playboy Entm’t Group, Inc., 529 U.S. at 824; City of Richmond, 488 U.S. at 507; Hunter ex rel.
Brandt, 190 F.3d at 1078.
* * * *
25
The undisputed record demonstrates that Rabbi Samet has sincerely held religious beliefs
that the BOP has substantially burdened in various ways. The undisputed record also
demonstrates that the BOP can show no narrowly tailored, compelling state interest for its
actions. Accordingly, this Court must grant Samet’s motion for summary judgment on his
RFRA claim.
II. BOP Prayer Policies are Unconstitutionally Vague in Violation of Due Process as
They Do Not Put Inmates on Notice as to What Religious Conduct is Prohibited or
Provide Explicit Standards to Officers for Enforcement.
The BOP fails to provide specific guidelines to either its inmates or its officers regarding
what kind of religious activity is permitted and what is not. Such policies are considered
unconstitutionally vague in the Second Circuit unless they can survive a two-prong test. First,
the policies must “give[] the person of ordinary intelligence a reasonable opportunity to know
what is prohibited.” Chatin v. Coombe, 186 F.3d 82, 87 (2d Cir. 1997) (internal quotation
omitted). Second, they must “provide[] explicit standards for those who apply” them. Id.; see
also Sandin v. Conner, 515 U.S. 472, 485 (1995). As Warden Apker testified, when changes to
policy are made, in order to ensure that the security and good order is maintained, “[i]t’s very
important” that the inmates know the rules and regulations of the prison. (SMF ¶ 33 (emphasis
added)) Neither the old nor the new policies — local or national — meet this standard that the
BOP itself admits is necessary in order to maintain prison security. Thus, the BOP’s policies
regarding when and where inmates may pray meet neither of the conditions required by Chatin,
and Samet is entitled to summary judgment on his Fifth Amendment claim.
The policies at issue here are the unwritten national BOP policy and FCI Otisville’s
written Institutional Supplements regarding religion. Both the national and local policies
prohibit prayer in common areas. (SMF ¶¶ 35-51) Nationally, the BOP instructs all of its
institutions on the unwritten policy through formal yearly training and informal training with
26
chaplains. (SMF ¶ 36) The BOP does not directly train all employees about this policy but
leaves it to individual institutions to do so. (SMF ¶ 36) The regional BOP offices also
occasionally provide instruction to local institutions.
The language of the written policy in place at FCI Otisville has gone through three
iterations, with the most recent having been promulgated in December 2007 in response to this
litigation. Two earlier Institutional Supplements stated that “communal prayer is not permitted
in the housing unit.” (SMF ¶¶ 39-40) With the new change, this policy now bans “prayer
rituals” outside of inmate’s cell or the chapel. (SMF ¶ 65) These rituals include prayers while
wearing religious clothing, using prayer objects such as beads, reciting a formulaic prayer such
that an individual who is present may hear, or engaging in ritual movements associated with
prayer such as bowing, kneeling, or swaying. (SMF ¶ 65)
These national and local policies are both unconstitutionally vague because (1) inmates
are not given adequate notice of them; (2) BOP staff are not appropriately trained to apply them;
and (3) BOP staff have too much discretion to enforce (or not to enforce) the policies. As a
preliminary matter, however, these standards for reviewing the policies are applied more strictly
because they regulate, in a criminal manner, basic First Amendment freedoms.
A. The BOP’s Regulations are Especially Problematic Because They Mete Out
Criminal Punishments for the Exercise of Basic First Amendment Freedoms.
The United States Supreme Court has recognized that vagueness is particularly
troublesome when it “abuts upon sensitive areas of basic First Amendment freedoms.” Grayned
v. City of Rockford, 408 U.S. 104, 109 (1972). Additionally, the degree of vagueness that the
Supreme Court tolerates “depends in part on the nature of the enactment,” with the Court
applying a more lenient standard for “enactments with civil rather than criminal penalties
27
because the consequences of imprecision are qualitatively less severe.” Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 498, 499 (1981).
The punishment Rabbi Samet received was both directed at his First Amendment rights
and was criminal in nature, thus requiring that this Court closely scrutinize the BOP’s restrictions
on inmate prayer. Hoffman Estates, 455 U.S. at 498, 499. First, there can be no dispute that
these restrictions “abut the sensitive areas of basic First Amendment freedoms.” Grayned, 408
U.S. at 109. It would be difficult to imagine a governmental act that so squarely attacks the right
to the free exercise of religion than a prohibition on when and where a person can pray. That is
precisely what the BOP has done in this case.
Second, the punishments assigned to this violation are clearly criminal in nature. As the
Second Circuit noted in a similar prisoner rights case, giving an inmate “a penalty of fifteen days
in keeplock, a fifteen day loss of package, commissary and phone privileges and assess[ing] a
$5.00 fine” is “more akin to criminal rather than civil penalties.” Chatin, 186 F.3d at 85, 86-87.
Here, the punishment inmates receive for violating the prison’s prayer policy is similar to
that which was meted out in Chatin. Under the BOP’s Policy on Inmate Discipline, there are
four categories of prohibited conduct: Greatest Category, High Category, Moderate Category,
and Low Moderate Category. (SMF ¶ 29) Offenses committed by inmates are grouped together
in these categories depending on their severity. Praying in a common area is not defined,
however. Thus, depending on the circumstances surrounding the incident, an inmate could
receive anything from a Low or Moderate charge to a High Category Charge. (SMF ¶ 31)
Under the “moderate” category inmates are subject to various types of sanctions, including loss
of commissary, phone privileges, and forfeiture of earned good time credits (meaning that an
inmate may not be eligible for early release from prison). (SMF ¶ 30)
28
When Rabbi Samet was punished in April 2004 for conducting religious activities in the
FCI Otisville unit library he was charged with two penal code violations of moderate severity
and his punishment was a loss of commissary and an incident report that would remain on his
disciplinary record and negatively impact his ability to receive good time credits and receive
early release from prison. (SMF ¶ 30) The sanctions Rabbi Samet received for praying are of
the same quality as were those meted out in Chatin.
Because FCI Otisville encroached upon Samet’s protected First Amendment rights and
punished him in a criminal, rather than a civil manner, this Court should more closely examine
the restrictions in question to determine whether they contain the necessary specificity required
by the Fifth Amendment. Chatin, 186 F.3d at 89. Having determined that the BOP’s various
prayer policies regulate, in a criminal matter, the protected areas of First Amendment freedoms,
we can now examine the substance of the polices themselves.
B. The BOP’s Local Policy at FCI Otisville Fails to Give Inmates Adequate
Notice that Praying in Common Areas is Prohibited.
By failing to make clear the restrictions on where religious activities, including individual
prayer and religious study, could take place, the BOP did not give Samet sufficient notice as
required by due process. The Second Circuit requires that penal statutes “provide individuals
with adequate notice of ‘what is prohibited.’” Chatin, 186 F.3d at 87 (citing Kolender v.
Lawson, 461 U.S. 352, 357 (1983) and Grayned, 408 U.S. at 108).
In an analogous case, Chatin v. Coombe, 186 F.3d 82, 87 (2d Cir. 1997), the Second
Circuit affirmed this Court’s determination that a New York state prison policy prohibiting ritual
prayer outside of inmates’ cells was unconstitutionally vague. The case arose after a Muslim
inmate was disciplined for conducting a ritual prayer while he was alone in the prison yard. Id.
at 85. The only rule given to inmates stated that “[r]eligious services, speeches or addresses by
29
inmates other than those approved by the Superintendent or designee” were prohibited, id. at 84,
87-89 (alteration original, quotation omitted). The directive given to prison officials stated more
specifically that individual prayer was allowed only in inmate’s cells and that “demonstrative
prayer will be allowed only to the extent that it is not disturbing to others.” Id. (quotation
omitted). In addition, a memorandum was posted throughout the prison stating that “no
demonstrative prayer will be allowed in any area of the facility other than designated religious
areas or individual cells.” Id. at 85 (quotation omitted).
In affirming this Court’s determination that the rule was unconstitutionally vague, the
Second Circuit found multiple problems with the prison’s regulatory scheme. First, it was not
clear that an individual demonstrative prayer would be clearly understood to constitute “religious
services” which were clearly prohibited under the rule. Id. at 87. Second, while the inmate had
previously observed others being disciplined for praying, since the inmate testified that some
officers allowed inmates to pray without discipline, while others did not, the court determined
that the rule was being arbitrarily applied by prison officials. Id. Third, the court ruled that it
would be “unfair” to force inmates to reconcile the rule, directive (which the inmate never
received a copy of), and memo to determine what conduct was allowed and what was not. Id. at
84, 88. For all these reasons, the court concluded that the rule failed the first prong of the
vagueness test in that it did not “give a person of ordinary intelligence a reasonable opportunity
to know what is prohibited.” Id. (quotation omitted).
The BOP’s written policy at FCI Otisville fails the first prong of the vagueness test for
similar reasons as the Chatin policy did. Like in Chatin, Samet was criminally charged for
“conducting religious activities in a common area room” rather than in his cell. (SMF ¶ 91) At
the time he was punished, the BOP policy that “communal prayer is not permitted in the housing
30
units” was not given to inmates or staff or posted anywhere in the prison. (SMF ¶¶ 61-63) The
FCI Otisville Inmate Handbook, given to all inmates who enter the institution, did not contain
this policy (and still does not) and only notes that “[r]eligious [s]ervices occur in the chapel
area.” (SMF ¶ 61) However, like the unconstitutionally vague rule in Chatin, it does not define
“religious services” and does not even mention prayer. (SMF ¶ 61) Further, it does not define
“communal” prayer. (SMF ¶ 61) As the BOP even admitted, inmates would eventually learn
this rule from other inmates upon arriving at the BOP institution, rather than be informed of it
through the Inmate Handbook. (SMF ¶ 62) Instead, this policy is only made available for
inmates to review in the law library. (SMF ¶ 40)
The BOP rules provide no more notice than did the rule, directive, and memo in Chatin
— indeed, inmates were never presented with a clear rule prohibiting prayer of any kind. And
in fact the BOP has admitted that the new policy established just this December was necessary
“to clarify for people who had confusion” “regarding the definition of prayer” and “where
[inmates] can pray” (which Officer Robbins, among others, admitted there was) and because the
old policy “needed improvement.” (SMF ¶¶ 43, 56, 64) Although the BOP’s new policy has
superceded this policy, at the very least the Court must deem the prior polices unconstitutional
and expunge Rabbi Samet’s record of punishment under them.22
And, although the new BOP written policy on prayer is more clear as far as what type of
prayer is prohibited (ritual prayer) and what is permitted (silent prayer), it still does not provide
adequate notice to inmates. This policy is not given to inmates upon arrival at Otisville or posted
anywhere for easy observance by all inmates and is still not recorded in the Inmate Handbook.
(SMF ¶ 61) Instead, Chaplain Laskin testified that he has informed only those inmates who he
22 See footnote 11.
31
“felt needed to know because — because they may have some interest in” the new policy. (SMF
¶ 67) (emphasis added) Thus, in order for an inmate to know where he can and cannot pray at
FCI Otisville, he must (1) see the memo posted in the housing unit (which simply states that
there have been changes to the institutional supplement, but does not post the changes or the
language of the policy), (2) go to the law library and look up the pertinent institutional
supplement, and (3) read it for himself (assuming he can understand the rule). This is precisely
the kind of piecemeal policy dissemination that the Second Circuit struck down in Chatin, as
inmates are not required to perform “the lawyer-like task of statutory interpretation by
researching the text of three separate documents.” 186 F.3d at 84, 88, 89. This new policy, like
FCI Otisville’s former policies and that at issue in Chatin, does not provide adequate notice to
inmates of what is permitted, and thus fails to meet the requirements notice of the Fifth
Amendment.
C. The BOP Fails to Provide Adequate Training to its Officials and Gives Them
Too Much Discretion to Enforce the Prison’s Regulation of Prayer.
Compounding the lack of notice to its inmates, the BOP failed to provide sufficient
training for its officers and allows them too much discretion in enforcing the prohibition on
prayer. The second prong of the vagueness test requires that the BOP’s enactment provides
sufficiently explicit standards for those who apply it. Chatin, 186 F.3d at 89. If it fails to do so,
the regulation “impermissibly delegates basic policy matters to policemen, judges and juries for
resolution on an ad hoc and subjective basis.” Id. (quotation omitted, citing Grayned, 408 U.S.
at 108-09). BOP’s actions regarding prayer fail in this regard, as well.
Under the former BOP prayer policy relied on to punish Rabbi Samet, FCI Otisville
failed to provide the necessary training for its officers, leading to a subjective enforcement of its
prayer policy. As admitted by the BOP, their staff do not receive any kind of training on how to
32
recognize different types of prayers and religious study, and what is and is not allowed in the
common areas. (SMF ¶ 43) For example, while the prison has produced voluminous documents
describing Jewish religious practices, current and past Wardens of Otisville testified that staff do
not receive training on these documents or receive copies of these documents. (SMF ¶ 43)
Despite this lack of training, any staff member who sees an inmate praying may issue an incident
report. (SMF ¶ 28) In fact, the BOP officer who disciplined Rabbi Samet for “praying” in a
prison common area, explained that “[i]t had always been my understanding [that] there was to
be no prayer in common areas of the housing units, that all religious practices were to be done in
the chapel . . . or in the privacy of the inmate’s cell.” (SMF ¶ 45) But when she was then asked
whether “all religious practices” would “include reading religious texts,” Ms. Robbins answered,
“I don’t know” and testified that she probably would not discipline an inmate for reading a
religious book aloud to another inmate if “it was not interfering with anyone else and there were
no complaints from other inmates.” (SMF ¶ 45) And contrary to her testimony that reading
religious texts was allowed though prayer was not, because she could not distinguish between
Samet’s prayer and religious study (while shokeling), she disciplined Samet for “conducting
religious activities in a common area.” (SMF ¶ 91)
BOP policy requires that “[s]taff shall control inmate behavior in a completely impartial
and consistent manner.” (SMF ¶ 29) However, staff members have discretion to decide what
level of infraction to charge an inmate with. (SMF ¶ 29) For example, a staff member may
choose to not even issue an infraction, electing instead for “informal resolution” of incidents.
(SMF ¶ 29) But even more telling is the inconsistent manner in which these staff members
described how they personally interpret FCI Otisville’s prohibitions on prayer. (SMF ¶¶ 39-63)
Chaplain Laskin testified that “communal” refers to “common area” and “prayer in the
33
communal setting, in the community setting where everyone has access is not permitted.” (SMF
¶ 43) Chaplain Susan Van Baalen on the other hand, testified that she interpreted “communal
prayer” to mean prayer in a group. (SMF ¶ 43) And while both Chaplains believed that group
prayers in cells were acceptable, even where the inmates praying were not necessarily cell mates,
Warder Apker testified that these kinds of activities were not allowed. (SMF ¶ 47) Indeed, BOP
Regional Director Dodrill instructed that BOP institutions should only allow individual prayers
in cells. Such large discrepancies in the manner in which these policies were understood to
operate serves as further support for Rabbi Samet’s claim that the policy is unconstitutionally
vague.
Further, the former policy has been arbitrarily enforced at Otisville as some BOP officials
give incident reports for inmates praying and others just ignore the conduct. (SMF ¶¶ 91,
104-06) Inmates at Otisville have testified that Muslim, Christian and Jewish inmates have
prayed together in common rooms without punishment. (SMF ¶¶ 104-06) One inmate even
participated in a Christian prayer where the group “held hands together . . . .pray[ed] for about
maybe three minutes . . . then [did] bible study” in the law library on the unit. (SMF ¶ 106)
Another inmate testified that Muslims pray without punishment individually and in groups at
Otisville “[i]n a room where people play cards or do legal work or just hang out and do
exercise.” (SMF ¶ 105) This is nearly identical to the circumstances in Chatin, where some staff
permitted inmates to pray in common areas and some did not, which “impermissibly delegates”
policy matters to BOP staff “for resolution on an ad hoc and subjective basis.” Chatin, 186 F.3d
at 89. As in Chatin, such conduct “proves nothing more than that [inmates have] observed
arbitrary discipline of inmates praying.” Id. at 88.
34
Indeed, by producing a new prayer policy, the prison has admitted that the prior policy
was deficient, though the new policy on prayer does not resolve these concerns. The new policy
still leaves discretion to staff in enforcement and has the same potential problems for uneven
staff enforcement as discussed above. And the training under the new policy is also deficient.
For example, Chaplain Laskin used a short test to help explain the new policy to staff members.
But despite the confusion that the term “communal prayer” caused, that term is still part of his
training materials. (SMF ¶ 66)
Despite Warden Apker’s testimony that “[i]t’s very important” to communicate changes
to the inmates and staff, the BOP has still failed to do this, even after having litigated this case
for over a year. (SMF ¶ 33 (emphasis added)) Neither the old nor the new policy meet the
standards required by the Fifth Amendment. Thus, FCI Otisville’s Institutional Supplements
OTV 5360.09a, OTV 5360.09b, and OTV 5360.09c should be declared unconstitutionally vague,
and Rabbi Samet’s record should be expunged of his April 15, 200423 and November 16, 2007
incident reports.
D. The BOP’s National, Unwritten Policy is Unconstitutionally Vague.
Not only is the written BOP policy (former and current) in effect at FCI Otisville vague
under Chatin, but the unwritten BOP policy set forth by the Head of Chaplaincy Services is
similarly unconstitutional. The BOP trains and encourages its chaplains not to allow prayer in
common areas of their institutions but does not provide this instruction in writing, and fails to
provide a uniform framework for chaplains to apply in training or enforcement of these
restrictions. (SMF ¶ 35-38) Further, this policy is not recorded in any BOP Program Statement
(which is the official vehicle used to set forth policy) or any other BOP document. Thus, the
23 See footnote 11 regarding BOP’s recent claim that they are willing to expunge Rabbi Samet’s April 15, 2004
incident report.
35
BOP does not clearly give notice to inmates housed at BOP institutions that they are not
permitted to conduct ritual prayers in common areas and may be punished for doing so. The
BOP cedes complete discretion over enforcement and training of such a sensitive area such as
inmate prayer to individual institutions throughout the country, without setting up any training
requirements or other guidance to prevent potential interference with inmate worship. (SMF ¶
36) This unwritten prayer policy allows the BOP to disseminate an unconstitutional policy to
institutions nationally without accepting the responsibility to enforce it.
In sum, not only were inmates not placed on notice, but the staff themselves are not
sufficiently trained by the BOP on how to deal with these religious issues. The undisputed facts
thus demonstrate that Samet is entitled to summary judgment on his claim that the BOP’s
unwritten, national policy regarding prayer in common areas is unconstitutionally vague in
violation of the Due Process Clause of the Fifth Amendment.
CONCLUSION
For the foregoing reasons, this Court should grant Rabbi Samet’s partial motion for
summary judgment for his claims under RFRA and the Due Process Clause of the Fifth
Amendment.
36
Date: February 15, 2008 Respectfully submitted,
/s Shima Baradaran
Shima Baradaran
Mark W. Rasmussen
KIRKLAND & ELLIS LLP
Citigroup Center
153 East 53rd Street
36th Floor
New York, New York 10022-4611
Telephone: (212) 446-4800
Facsimile: (212) 446-4900
Charles G. Wentworth (pro hac vice)
KIRKLAND & ELLIS LLP
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
Attorneys For Plaintiff Mordechai Samet
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing PLAINTIFF
SAMET’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR PARTIAL
SUMMARY JUDGMENT was filed electronically on February 15, 2008, and will, therefore,
be served electronically upon:
Brian M. Feldman
U.S. Attorney’s Office
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: (212) 637-2777
Facsimile: (212) 637-2717
Attorneys for Defendants
Federal Bureau of Prisons, et al.
/s Shima Baradaran
Shima Baradaran