BENJAMIN v. COUGHLIN

Thomas BENJAMIN, Errol Dunkley, Frank Forrest, Barrington

Gray, Newton Hannon, and Martin Spence, on behalf

of all others similarly situated,

Plaintiffs-Appellants, Cross-Appellees,

Thomas A. COUGHLIN, Commissioner, New York State Department

of Correctional Services; Stephen Dalshiem, Superintendent,

Ossining Correctional Facility; Eugene S. LeFevre,

Superintendent, Clinton Correctional Facility; Harold

Smith, Superintendent, Attica Correctional Facility,

Defendants-Appellees, Cross-Appellants.

Nos. 501, 502, Dockets 89-2265(L), 89-2267.

United States Court of Appeals,

Second Circuit.

Argued Dec. 13, 1989.

Decided May 18, 1990.

Robert Selcov, New York City (Stephen M. Latimer, David C. Leven, Prisoners'Legal Services of New York, Poughkeepsie, N.Y., of counsel), forplaintiffs-appellants, cross-appellees.

Dennis J. Saffran, Asst. Atty. Gen., New York City (Robert Abrams, Atty.Gen. of State of N.Y., New York City, of counsel), for defendants-appellees,cross-appellants.

Before VAN GRAAFEILAND, PIERCE and MINER, Circuit Judges.

MINER, Circuit Judge:

Plaintiffs, Rastafarian inmates in the custody of the New York StateDepartment of Correctional Services ("DOCS"), appeal from a judgment entered inthe United States District Court for the Southern District of New York(Stanton, J.) rejecting claims, brought pursuant to 42 U.S.C. Sec. 1983 (1982),that various regulations and policies of DOCS violate their first amendmentright to free exercise of their religion and their fourteenth amendment rightto equal protection of the laws. Benjamin v. Coughlin, 708 F.Supp. 570(S.D.N.Y.1989). Specifically, the district court rejected plaintiffs'contentions that they were entitled to weekly congregate prayer, unrestrictedwearing of religious headgear and a diet consistent with their religiousbeliefs.

Defendants, the Commissioner of DOCS and three correctional facilitysuperintendents, appeal from so much of the judgment as enjoins the enforcementof a regulation requiring members of the plaintiff class to submit to a haircutupon admission to a facility under defendants' jurisdiction. The district courtfound that defendants were precluded from enforcing the regulation under thedoctrine of collateral estoppel, and that the regulation violates the freeexercise clause of the first amendment. Defendants contend that the regulationis reasonably related to valid penological interests and that litigation of theissue was improperly precluded by the district court.

For the following reasons, we affirm.

BACKGROUND

The Rastafarian religion1 was founded in Jamaica. Adherents believe that thecoronation of Haile Selassie, the deceased emperor of Ethiopia, constituted thefulfillment of a prophesy. Aside from the belief in the divinity of HaileSelassie, the religion is marked by a decentralized structure and the absenceof a conventional religious hierarchy. The closest example of an authoritativefigure is an "Elder," one who has studied the tenets of the religion.

A fundamental tenet of the religion is that a Rastafarian's hair is not tobe combed or cut, resulting in rope-like strands known as "dreadlocks."Directive 4914 of the DOCS, however, requires all newly admitted males tosubmit to a haircut and photograph upon arrival at a DOCS facility. Maleinmates are then permitted to regrow their hair to any length and are subjectto rephotographing if their appearance changes drastically.

Plaintiffs also believe that, whenever they are in public places, theirdreadlocks must be covered by loose-fitting knit headgear known as "crowns."Under current policy, crowns may be worn only in designated areas of DOCSfacilities. Jewish and Muslim inmates, however, are permitted to wear theirrespective religious headgear throughout the prison facilities, subject tofrisk searches.

Rastafarians engage in congregate religious observance--"Issembly"--whichconsists of chanting, beating of drums, readings, and religious conversationcalled "reasoning."2 Plaintiffs have been denied the right to congregate forweekly religious observance. This restriction is based on defendants'interpretation of New York Correction Law Sec. 610 (McKinney 1987) asprohibiting religious congregation unless an outside spiritual sponsor isavailable to supervise the service. Although Muslim and Buddhist inmates arepermitted to use inmate religious leaders, under the supervision of an outsidesponsor who is not present at the meeting, plaintiffs have not been permittedto use inmate leaders because no outside sponsor has come forward.

Many Rastafarians observe a strict vegetarian diet called "Ital," whichincludes prohibitions on the consumption of meat and caffeine and restricts thediet to natural foodstuffs. Dietary habits vary among Rastafarians, butconsumption of pork seems to be prohibited generally. Under DOCS policy,alternative portions are offered to all inmates whenever pork is served, andspecial kosher meals are provided for inmates at some facilities. Muslim andBuddhist inmates are provided special meals during certain holidays.

In August 1986, the district court granted a preliminary injunctionenjoining the enforcement of the initial haircut requirement as it applied tothe plaintiffs. Benjamin v. Coughlin, 643 F.Supp. 351 (S.D.N.Y.1986). The courtbased this injunction on the preclusive effect of New York state courtdecisions in Lewis v. Commissioner of the Dep't of Correctional Servs., No.85-11167, slip op. (Sup.Ct. Aug. 1, 1985), aff'd sub nom. People v. Lewis, 115A.D.2d 597, 496 N.Y.S.2d 258 (2d Dep't 1985), aff'd, 68 N.Y.2d 923, 502 N.E.2d988, 510 N.Y.S.2d 73 (1986) (mem.), and Overton v. Department of CorrectionalServs., 131 Misc.2d 295, 499 N.Y.S.2d 860 (Sup.Ct.1986), aff'd, 133 A.D.2d 744,520 N.Y.S.2d 32 (2d Dep't 1987) (mem.), appeal dismissed, 72 N.Y.2d 838, 526N.E.2d 42, 530 N.Y.S.2d 551 (1988). Benjamin v. Coughlin, 643 F.Supp. at357.

Defendants moved to vacate the injunction in June of 1987 on the ground thatthe Supreme Court's decisions in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254,96 L.Ed.2d 64 (1987), and O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct.2400, 96 L.Ed.2d 282 (1987), altered the standard of review for prisoners'rights claims. The district court reserved decision and heard testimony withouta jury on all of plaintiffs' claims. In its post-trial decision in 1989, thedistrict court reaffirmed the application of nonmutual offensive collateralestoppel but also found that Directive 4914 did not pass constitutional musterunder Turner and Shabazz. Benjamin, 708 F.Supp. at 573. The court enjoinedenforcement of the haircut regulation as it applied to the plaintiff class butrejected plaintiffs' challenges to the denial of the right to congregate, towear crowns, and to be provided with a special diet. Id. at 573-76.

DISCUSSION

I. Standards to be Applied

Balanced against the constitutional protections afforded prison inmates,including the right to free exercise of religion, are the interests of prisonofficials charged with complex duties arising from administration of the penalsystem. Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d495 (1974). Recognizing that federal courts are ill-equipped to deal with thecomplexities of prison administration, the Supreme Court has accorded greatdeference to determinations of prison officials and fashioned "a lesserstandard of scrutiny ... in determining the constitutionality of the prisonrules." Turner, 482 U.S. at 81, 107 S.Ct. at 2257; see also Shabazz, 482 U.S.at 349, 107 S.Ct. at 2404.

The governing standard is one of reasonableness, taking into account whetherthe particular regulation affecting some constitutional right asserted by aprisoner is "reasonably related to legitimate penological interests." Turner,482 U.S. at 89, 107 S.Ct. at 2261; Shabazz, 482 U.S. at 349, 107 S.Ct. at 2404.The Turner Court determined that the factors to be considered are: 1) whetherthere is a rational relationship between the regulation and the legitimategovernment interests asserted; 2) whether the inmates have alternative means toexercise the right; 3) the impact that accommodation of the right will have onthe prison system; and 4) whether ready alternatives exist which accommodatethe right and satisfy the governmental interest. Turner, 482 U.S. at 89-90, 107S.Ct. at 2261-62; Fromer v. Scully, 874 F.2d 69, 72 (2d Cir.1989).

In addition to their first amendment claims, plaintiffs here assert thatthey have been denied equal protection by reason of treatment different fromthat afforded to other religious groups. While the Turner /Shabazz standard wasestablished in the context of first amendment issues, it is also relevant tothe assessment of equal protection claims in the prison setting. As to suchclaims, the reasonableness of the prison rules and policies must be examined todetermine whether distinctions made between religious groups in prison arereasonably related to legitimate penological interests. See Williams v. Lane,851 F.2d 867, 877 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 879,102 L.Ed.2d 1001 (1989). We must determine whether "the ... groups are sosimilar that discretion has been abused." Jones v. North Carolina Prisoners'Labor Union, Inc., 433 U.S. 119, 136, 97 S.Ct. 2532, 2543, 53 L.Ed.2d 629(1977).

II. The Haircut Regulation

A. Issue Preclusion

Departmental Directive 4914 requires that upon entry into a correctionalinstitution all male inmates receive a haircut3 for purposes of anidentification photograph. Defendants maintain that the haircut highlights aninmate's facial and cranial features in the photograph, and thus facilitatesrecapture in the event of escape. After the initial haircut, an inmate ispermitted to regrow his hair to any length but is subject to beingrephotographed if his appearance changes drastically. The challenge toDirective 4914 is founded on the contention that it violates the inmates' freeexercise clause rights. "Many Rastafarians take the 'vow of the Nazarite' neverto cut their hair," believing that the wearing of dreadlocks is sacred.Benjamin, 708 F.Supp. at 572.

The district court enjoined enforcement of the Directive on two grounds.Applying the doctrine of offensive collateral estoppel, the court determinedthat the defendants were precluded from relitigating the validity of theDirective because the issue previously had been decided against them by the NewYork Court of Appeals in Lewis and Overton. Id. at 573. The court furtherdetermined that, even if preclusion was improper, Directive 4914 failed to passconstitutional muster under Turner. Id. We agree with both determinations.

On appeal, defendants challenge the application of the collateral estoppeldoctrine on three grounds. They assert that there is an absence of identicalityof issues between the state cases and the case here; that offensive issuepreclusion should not apply against the government; and that a subsequentchange in law renders preclusion improper.

In determining the preclusive effect given a state court judgment under 28U.S.C. Sec. 1738 (1982), a federal court must "give that judgment the sameeffect that it would have in the courts of the state under state law." Cullenv. Margiotta, 811 F.2d 698, 732 (2d Cir.), cert. denied, 483 U.S. 1021, 107S.Ct. 3266, 97 L.Ed.2d 764 (1987); see Wilder v. Thomas, 854 F.2d 605, 616 (2dCir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1314, 103 L.Ed.2d 583 (1989).Defendants argue that the prior proceedings involved only the validity ofDirective 4914 as it applied to the individual inmates in those cases and notits constitutionality as applied to any other parties, including members of theplaintiff class. They note that the state courts found that DOCS objectivescould be achieved by merely tying back the hair of those individual inmatesduring their initial photographs. See Lewis, 68 N.Y.2d at 925, 502 N.E.2d at989, 510 N.Y.S.2d at 74; Overton, 133 A.D.2d at 746, 520 N.Y.S.2d at 34.

Application of the doctrine of collateral estoppel requires a finding of"the identicality of an issue necessarily decided in the prior action" and "afull and fair opportunity to contest the issue in the prior action." Halyalkarv. Board of Regents, 72 N.Y.2d 261, 266, 527 N.E.2d 1222, 1224, 532 N.Y.S.2d85, 87 (1988) (citation omitted). We are confronted here with theconstitutional validity of Directive 4914 as it applies to the plaintiffs, amixed question of law and fact necessarily confronted by the state courts inassessing the legitimacy of the security concerns raised by the DOCS. SeeLewis, 68 N.Y.2d at 924-25, 502 N.E.2d at 989, 510 N.Y.S.2d at 74; Overton, 133A.D.2d at 745-46, 520 N.Y.S.2d at 34.

In the district court, defendants presented much of the same evidence thatthey presented in the state courts, including testimony of Deputy CommissionerCoombe, various sets of photographs, and even photographs of Messrs. Lewis andOverton. The only set of photographs presented in the Overton case, however,was that of Mr. Overton. We find that, between the state and federalproceedings, there is a "substantial overlap" of evidence and arguments.Restatement (Second) of Judgments Sec. 27 comment c (1982); see Koch v.Consolidated Edison Co. of New York, 62 N.Y.2d 548, 554 n. 2 & 555 n. 4,468 N.E.2d 1, 4 nn. 2 & 4, 479 N.Y.S.2d 163, 166 nn. 2 & 4 (1984)(adopting the issue preclusion factors outlined in the Restatement), cert.denied, 469 U.S. 1210, 105 S.Ct. 1177, 84 L.Ed.2d 326 (1985).

The action at bar was commenced in 1979, several years before the statecourt decisions in Lewis and Overton. Therefore, defendants had a strongincentive, as well as a fair opportunity, to contest the haircut issue fully inthe New York State courts, recognizing that any determination might have apreclusive effect in the pending federal action. See Winters v. Lavine, 574F.2d 46, 59 n. 14 (2d Cir.1978).

Defendants urge that nonmutual offensive collateral estoppel cannot beinvoked against the government. See United States v. Mendoza, 464 U.S. 154, 104S.Ct. 568, 78 L.Ed.2d 379 (1984). The Mendoza Court declined to apply offensiveissue preclusion against the federal government, finding that certain policyconsiderations weighed against preclusion in that case. Id. at 160-61, 104S.Ct. at 572-73. Significantly, the Solicitor General had decided not to appeala previous adverse judgment, id. at 159, 161, 104 S.Ct. at 572, 573, unlike thesituation here, where the defendants appealed two prior judgments resolving thesame issues to the state's highest court.

The major policy interests outlined in Mendoza were avoidance of prematureestoppel and assurance of an opportunity for the government to consider theadministrative concerns that weigh against initiation of the appellate process.Id. Here, the issue percolated through the state courts and was decided by theNew York Court of Appeals during the pendency of the case at bar. Decisions byseveral state courts assured defendants that preclusion was not premature, thatproper review of the issues occurred prior to application of preclusionprinciples, and that the DOCS had the opportunity to consider appeal of thestate court decisions in light of the pending federal action.

Lastly, defendants contend that a change in the governing constitutionalstandard since Lewis renders preclusion improper. We note that Lewis consideredtwo levels of scrutiny and found that even under a standard more burdensome tothe plaintiffs than the Turner/Shabazz reasonableness standard, plaintiffswould prevail. Lewis, 68 N.Y.2d at 924-25, 502 N.E.2d at 989, 510 N.Y.S.2d at74. The decision in Overton, decided after pronouncement of the new standard,followed the mandate of the Supreme Court. Overton, 133 A.D.2d at 745, 520N.Y.S.2d at 34.

In light of the foregoing, we find the district court properly gavepreclusive effect to the prior state court proceedings.

B. Constitutionality of Directive 4914

Defendants argue that the initial haircut is necessary for purposes ofidentification in the event of escape. Accepting the existence of reasonablesecurity concerns, we find there is an alternative that can accommodate bothparties. See Turner, 482 U.S. at 91, 107 S.Ct. at 2262. After reviewing thevoluminous record and hearing testimony from both Rastafarian inmates andprison officials, the district court determined that pulling plaintiffs' hairback met the purported security needs. Benjamin, 708 F.Supp. at 573. Greatdeference must be accorded the DOCS' position that this solution is inadequate.Fromer, 874 F.2d at 73. Defendants, however, have failed to establish that theaccommodation here has more than a de minimis effect on valid penologicalinterests. Turner, 482 U.S. at 91, 107 S.Ct. at 2262. In Fromer, it appearedthat there was no alternative to shaving the appellant's beard to reveal hisfacial features properly. Fromer, 874 F.2d at 76. Here, however, tyingplaintiffs' hair in pony tails adequately accommodates the interests of prisonauthorities in revealing an inmate's cranial and facial features.

Plaintiffs are permitted to regrow their hair to any length after theinitial haircut. While defendants assert that this is an accommodation, this"misses the point of the violence done to [an inmate's] religious beliefs whenhis hair is cut." Benjamin, 708 F.Supp. at 573. Although length of hair makesidentification difficult upon escape, a photograph of a Rastafarian when hishair is short would create the same identification problems, because hecertainly will regrow his hair. The fact that inmates are rephotographed iftheir appearance changes drastically indicates that defendants believe theywill be able to identify the plaintiffs from the new photographs. It is unclearhow this is any different from identifying plaintiffs as they appear uponarrival. Accordingly, we find that there exists an alternative means ofaccommodating plaintiffs' religious rights without undermining the legitimatepenological interests identified by the defendants.

III. Weekly Religious Congregation

Plaintiffs maintain they have been denied the right to congregate for weeklyreligious observance in violation of the free exercise clause of the firstamendment, and that the prohibition is inconsistent with the permissiblecongregation of other religious groups in DOCS facilities. They further assertthat section 610 of the New York Correction Law does not require outside clergyto conduct services but merely allows religious groups the right to haveservices conducted by outside clergy if available. Section 610 provides, inrelevant part, that "inmates ... shall be allowed such religious services andspiritual advice and spiritual ministration from some recognized clergyman ofthe denomination or church which said inmates may respectively prefer or towhich they have belonged prior to their being confined...." N.Y. Correct. LawSec. 610.

The DOCS has interpreted section 610 to mean that inmate religious groupsare permitted to congregate for religious observance only under the supervisionof a non-inmate spiritual leader known as a "free-world sponsor." It hasadopted Directive # 4760, entitled "Inmate Group Activities and Organizations,"which is applicable to religious groups. Paragraph III(C)(3) of the Directiveprovides that a "[b]ona fide 'outside sponsor' is mandatory for each inmateorganization." A bona fide sponsor is defined as:

any individual or group duly registered and approved with the VolunteerServices Program that will visit the facility regularly to provide assistanceto the inmate organization. A minimum of one visit per quarter is desired. Inaddition, ongoing communication with the facility Volunteer Services Officeshould be carried on. (All volunteer participants from the community must meetthe registration and approval requirements of Directive # 4750, "VolunteerServices Programs.")

While it may be that the free-world sponsor requirement is inconsistent withthe statutory language, determination of that issue is reserved for statecourts. Cf. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106,104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). We must resolve whether the presentinterpretation of section 610 by DOCS is consistent with constitutionalstandards.

The sponsor requirement is said to be intended to ensure that the meeting isconvened for religious purposes and not to hold kangaroo courts, fosterextortion, or provide a venue for the dissemination of conspiratorialinformation. As well, the use of sponsors is thought to minimize conflictsamong inmates as to the nature and content of the service. Other circuits havegiven their imprimatur to the requirement of free-world sponsors based uponsimilar security concerns. See, e.g., Johnson-Bey v. Lane, 863 F.2d 1308,1310-11 (7th Cir.1988); Cooper v. Tard, 855 F.2d 125, 129-30 (3d Cir.1988);Hadi v. Horn, 830 F.2d 779, 784-86 (7th Cir.1987); Tisdale v. Dobbs, 807 F.2d734, 736, 740 (8th Cir.1986). We also are satisfied that the sponsorrequirement meets the rational relationship and impact of accommodation prongsof the Turner standard.

Applying the second Turner prong, alternative means, it appears thatplaintiffs are not prohibited from "reasoning," a form of religious discussion,as an alternative means of prayer. Cooper, 855 F.2d at 129-30. In fact, part ofthe Rastafarian service consists of reasoning. As long as plaintiffs arepermitted to engage in such discussion, they have other means of exercisingtheir right of congregate prayer.

As to the fourth prong, availability of ready alternatives, defendants havesuggested that they might accept an outside "Elder" as a free-world sponsor. AnElder is not a clergyman but retains authority as a result of his education andfamiliarity with the Rastafarian religion. Any objection to the authority of anElder, simply because the Rastafarian religion lacks conventional clergyman,would be unwarranted. In view of the legitimate security reasons supporting thefree-world sponsor requirement, the failure of an outside Elder to come forwardcannot justify the finding of a first amendment violation. The inmates'proposal that a non-religious supervisor be used would not resolve thedoctrinal disputes that are the subject of security concerns. See Hadi, 830F.2d at 786-87.

Similarly, we are not persuaded that the free-world sponsor requirementviolates plaintiffs' right to equal protection of the laws. The plaintiffsargue that defendants have permitted the use of inmate Imams to conduct Muslimservices and therefore they should be accorded the same privilege. Thiscontention, however, fails to recognize the reason for the free-world sponsorrequirement. It is not the presence or absence of the sponsor at the servicethat is the concern but rather the availability of an outside ministerialauthority in religious matters.

The requirement of an outside resource is compelled by the defendants'concern that the authenticity of the service will be compromised or thatparticular religious issues may arise which cannot be resolved by DOCS staff.Thus, the defendants have expressed a rational basis for requiring outsidesponsors even if the sponsors are not required to attend every service. TheDOCS has an outside resource to contact with respect to Muslim and Buddhistservices, and it indicated that it would "allow Rastafarians to hold congregateservices when and if ... an outside sponsor comes forth." Benjamin, 708 F.Supp.at 576.

The apparent unavailability of a Rastafarian Elder or similar religiousauthority willing to serve as an outside sponsor is not the fault of thedefendants. Had the plaintiffs proved that the DOCS arbitrarily rejectedavailable sponsors, then a cognizable claim might exist. However, the districtcourt found that the defendants have made a good faith effort "to locate andobtain the services of a sponsor." Id. at 576-77. We agree with the districtcourt that the free-world sponsor requirement does not violate equal protectionbecause it has a legitimate basis and is imposed on all religious groups.

IV. The Wearing of Crowns

We next address the constitutionality of the DOCS regulations which restrictthe wearing of crowns to designated areas. From the perspective of firstamendment analysis, legitimate security reasons are raised in support ofpresent policy. Preventing the smuggling of contraband, such as weapons anddrugs, comports with the type of penological interests contemplated under theTurner/Shabazz standard. See Turner, 482 U.S. at 89, 107 S.Ct. at 2261. We haveexamined each prong of the first amendment analysis and find plaintiffs' claimto be without merit. See, e.g., Standing Deer v. Carlson, 831 F.2d 1525, 1528(9th Cir.1987); Rogers v. Scurr, 676 F.2d 1211, 1215 (8th Cir.1982).

Jewish inmates are permitted to wear yarmulkes throughout DOCS facilities,and Muslim prisoners may wear kufis. The right of Rastafarians to wear crowns,however, is limited, and in some facilities crowns are wholly prohibited.Plaintiffs contend that the unlimited right granted Jewish and Muslim inmates,as opposed to Rastafarian prisoners, to wear religious headgear establishes anequal protection violation. We disagree.

The district court found that crowns are large and loose-fitting, providinga readily available means for "concealing and transporting weapons, controlledsubstances or other contraband, thus posing a threat to prison security."Benjamin, 708 F.Supp. at 574. While security problems may exist with respect toyarmulkes and kufis, defendants maintain that a heightened security concern isposed by crowns, because of the size of the headgear and the ease with whichcontraband can be secreted. Here, legitimate security interests have beenraised by the prison authorities, who must be accorded great deference in thesematters. Turner, 482 U.S. at 84-85, 107 S.Ct. at 2259-60.

The fact that the defendants are willing to conduct spot searches of Jewishand Muslim inmates does not mean that they are required to do the same for allprisoners claiming a right to wear headgear. The prison officials justifiablyexpressed the belief that crowns presented a greater danger than yarmulkes andkufis. The greater security concern associated with the wearing of crowns,including the enhanced potential for concealing contraband and the obviousincrease in guard/inmate contact that would result from searches of crowns,provides a rational basis for treating the plaintiffs differently from theother religious groups with respect to headgear. See North Carolina Prisoners'Union, 433 U.S. at 136, 97 S.Ct. at 2543. The district court found that"yarmulkes and kufis are smaller and fit closely to the head, while the crownis of a size and shapelessness which would facilitate uses which arelegitimately forbidden." Benjamin, 708 F.Supp. at 574. Accordingly, we find nomerit to plaintiffs' contention that the restriction imposed on the wearing ofcrowns violates their equal protection rights.

V. Ital Diet

Rastafarians observe a diet called Ital, which "symbolizes a belief in lifeand an avoidance of symbols of death." Benjamin, 708 F.Supp. at 575. The exactnature of the Ital diet varies among individuals and Rastafarian sects. Id. Thedistrict court denied plaintiffs' dietary claim, determining that the variedindividual practices "would impose undue financial and administrative burdenson defendants." Id. Although it appears that plaintiffs originally sought astrict Ital diet, they now "ask that their dietary needs be accommodated in away similar to that defendants have already adopted for other religiousgroups." On appeal, plaintiffs advance an equal protection challenge, assertingthat similar dietary requests have been granted to other religious groups.

Prisoners have a right "to receive diets consistent with their religiousscruples." Kahane v. Carlson, 527 F.2d 492, 495 (2d Cir.1975). Courts, however,are reluctant to grant dietary requests where the cost is prohibitive, seeMartinelli v. Dugger, 817 F.2d 1499, 1507 & n. 29 (11th Cir.1987), cert.denied, 484 U.S. 1012, 108 S.Ct. 714, 98 L.Ed.2d 664 (1988); Kahey v. Jones,836 F.2d 948, 951 (5th Cir.1988), or the accommodation is administrativelyunfeasible, see Kahey, 836 F.2d at 951; Kahane, 527 F.2d at 495.

The dietary programs presently in effect are well-defined. Muslim inmatesare provided the alternatives to pork available to all inmates, and receive aspecial dietary accommodation during the month-long Muslim holiday of Ramadan.During Ramadan, Muslims are permitted to prepare and eat food in their cells,but the foodstuffs they receive are those served to the entire prisonpopulation. In order to accommodate the dietary habits of Orthodox Jewishinmates, a kosher dietary plan is provided at the Green Haven facility; andneutral diets, consisting mainly of canned goods, eggs, and occasionally freshvegetables, are provided at other facilities as alternatives to the kosherdietary plan.

Plaintiffs now seek a "vegetarian diet with foodstuffs that their faithpermits them to eat." They also contend that a kosher diet would "substantiallymeet their religious need." Notwithstanding this attempted clarification, thevaried nature of the Ital diet raises questions as to the foodstuffs that willsatisfy their request. This problem exists because Rastafarians will notconsume canned goods, and fresh fruits and vegetables have a limitedavailability and are not cost-effective. Benjamin, 708 F.Supp. at 575.

We remain uncertain as to the exact nature of the dietary request, which hasvaried during the course of this litigation. Based on the present state of therecord, we find that the dietary claim must be rejected because plaintiffs havefailed to clearly define the claim or to make the evidentiary showing requiredto establish any constitutional dietary claim.

CONCLUSION

For the foregoing reasons, we affirm. No costs are awarded to eitherside.

Defendants do not raise the issue whether Rastafarianism is a religionprotected by the first amendment. That issue has been resolved against them instate court. Overton v. Coughlin, 133 A.D.2d 744, 745-46, 520 N.Y.S.2d 32, 34(2d Dep't 1987)

The Rastafarian service is also said to involve the smoking of marijuana.Plaintiffs, however, do not assert that they should be permitted to smokemarijuana during their services

Male inmates also receive an initial shave; however, that facet of Directive4914 was found to be constitutional in Fromer, 874 F.2d at 76

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