Full opinion text
TABLE OF CONTENTS PROCEDURAL BACKGROUND ............................................. 165 FINDINGS OF FACT....................................................... 167 I. The Nation of Islam................................................... 167 II. Plaintiff Muhammad’s Allegations........................................ 170 III. Testimony of Imam Asida Muhammad................................... 171 IV. DOC Religious Accommodation Policy.................................... 173 V. The Testimony of Imam Luqman ....................................... 173 VI. NOI Volunteers in DOC Facilities: The Testimony of Antonio McCloud____ 176 VII. Testimony of Robert Daly and Robert Wangenstein Concerning DOC’s Operations and Allocation of Resources ....................................... 177 A. Overview of the relevant DOC Operations............................ 177 B. The Rationale of Generic Services................................... 180 C. Operations at the Brooklyn House of Detention...................... 181 D. Analogous Procedures on Rikers Island.............................. 182 E. Evidence Concerning the Number of NOI Inmates................... 183 F. Federal Bureau of Prisons’ Religious Accommodations ................ 186 CONCLUSIONS OF LAW................................................... 187 I. The Religious Freedom Restoration Act ................................. 187 A. Substantial Burden................................................. 189 1. Ministers ..................................................... 189 2. Congregate Services........................................... 190 3. Literature..................................................... 192 4. Holidays...................................................... 192 5. Other......................................................... 192 B. Compelling Interest and Least Restrictive Means..................... 193 II. First Amendment Claims............................................... 195 A. Free Exercise..................................................... 195 B. Establishment Clause............................................... 197 III. Equal Protection....................................................... 199 IV. New York Law........................................................ 199 A. State law.......................................................... 199 B. City Regulations................................................... 201 V. Qualified Immunity..................................................... 201 CONCLUSION.............................................................. 203 FINDINGS OF FACT AND CONCLUSIONS OF LAW PRESKA, District Judge: Plaintiff Abdul-Shahid Farrakhan Muhammad (“Muhammad”) seeks (i) a declaratory judgment that defendants have unlawfully deprived him of his rights under the federal and state law to practice his religion, that of the Nation of Islam (“NOI”); (ii) a permanent injunction requiring the City of New York Department of Correction (“DOC”) to take a variety of actions concerning the exercise of his religion in DOC facilities; (iii) compensatory damages; and (iv) costs and attorneys’ fees. For the reasons stated below which largely relate to the unique characteristics of the DOC system, I find that plaintiff is not entitled to the relief he seeks. PROCEDURAL BACKGROUND Plaintiff Muhammad commenced a pro se action, pursuant to 42 U.S.C. § 1983, alleging that DOC staff prevented him from freely exercising his religion as a member of the NOI. On or about June 17, 1993, I appointed Gibson, Dunn & Crutcher to represent Muhammad. By an amended complaint dated February 18, 1994, joining as plaintiff Darrell X. McKinney and as defendants, along with DOC Staff (or the “City defendants”), the State of New York Department of Correctional Services (“DOCS”) and Thomas Coughlin (collectively, the “State defendants”), plaintiffs alleged that DOC and DOCS had violated their rights to practice their religion under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., the First Amendment to the Constitution of the United States and the Constitution and laws of the State of New York. By a second amended complaint dated July 8, 1994 (the “Second Amended Complaint”), plaintiffs sought a permanent injunction requiring defendants to take the following actions: (i) to recognize the Nation of Islam faith as a religion within the meaning of defendants’ policies and practices; (ii) to make available to plaintiff class members free and adequate access to Nation of Islam ministers for spiritual guidance and support; (iii) to make available to plaintiff class members free and adequate access to religious services conducted by a Nation of Islam minister or inmate follower of the Nation of Islam; (iv) to promulgate directives recognizing the holy days of the members of the Nation of Islam and permitting daylight fasting on the holy days requiring it; (v) to allow plaintiff class members to possess religious literature of the Nation of Islam that does not present a clear and present danger to the institution as determined by an impartial board employing specific criteria; (vi) to refrain from any conduct that substantially burdens the right of members of the class to exercise their religion if that conduct is not the least restrictive alternative of furthering a compelling state interest; and (vii) to refrain from making any distinction among religions based on defendants’ assessment of the content of the tenets of any religion. (Second Am.Compl. at 17.) Plaintiffs also sought compensatory damages, attorneys’ fees and certification of a class of followers of NOI who are or will be incarcerated in the City and State correctional systems. In response to plaintiffs’ application to move to certify a class, the State and City defendants stipulated that any injunctive relief awarded to the individual plaintiffs would be implemented on a system-wide basis, thus obviating the need to litigate the class certification issue. On or about July 25, 1994, the City and State defendants filed a motion to dismiss the RFRA claims on the ground that RFRA is unconstitutional. The State defendants, but not the City defendants, subsequently withdrew their constitutional challenge. The City defendants’ motion is still pending before the Court. On November 8, 1994, the parties entered into a stipulation permitting six additional plaintiffs to intervene in the action. A bench trial was conducted on December 8, 9, 12 and 13, 1994, and January 17, 18 and 30, 1995. Numerous witnesses testified, including the plaintiffs, all of whom are NOI followers; Robert Green, an NOI minister known as “Minister 9X”; four orthodox Muslim imams, two of whom formerly belonged to the NOI and all of whom are employed by either DOCS or DOC; one professor, Dr. C. Eric Lincoln (“Professor Lincoln”), who has written extensively about NOI for over thirty years; and Antonio McCloud, DOC’s Director of Volunteer Services, who frequently attends NOI religious services in New York and New Jersey. In addition, on December 9, 1994, a site visit was conducted to the Anna M. Kross Center (“AMKC”), a DOC correctional facility on Rikers Island. During the trial, the plaintiffs and the State defendants reached a settlement, and I subsequently approved a consent decree. No settlement was reached between the plaintiffs and the City defendants. Of the eight plaintiffs, only Muhammad has asserted claims against the City defendants. FINDINGS OF FACT I. The Nation of Islam There are dozens of Islamic sects, each sharing certain fundamental tenets, but also having distinctive beliefs, practices and spiritual leaders. (Tr. 97-101, 555-57.) The prophet Muhammad is said to have predicted that there would ultimately be seventy-two Muslim sects. (Tr. 556.) Imam Umar testified that he could currently name twenty to twenty-six such Muslim sects, and Professor Lincoln testified to fourteen splinter groups that came out of the NOI alone. (Tr. 49-50, 101, 557.) Turning to the NOI in particular, the NOI was founded in 1930 by Fard Muhammad, also known as W.D. Farad or Fard. After Fard’s unexplained disappearance in 1934, his assistant, Elijah Muhammad, assumed leadership of the movement until his death in 1975. (Pl.Ex. 55 at 12,15-16, 267.) According to Professor Lincoln, NOI leaders developed a theology aimed specifically at addressing the unique situation and need of African-Americans, including perceived needs for dignity, economic security and security from the police. (Tr. 41 — 42, 53.) Only African-Americans were permitted to join the NOI and to attend NOI services. NOI doctrine exhorted members to use religion to do something for themselves, thereby bettering their existence. (Tr. 42-43.) After Elijah Muhammad’s death in 1975, his son, Wallace Deen Muhammad, also called Warith Deen, was designated to succeed his father as the leader of the NOI. (Tr. 47; Pl.Ex. 55 at 263-64.) Over the next decade, Wallace Deen Muhammad led the NOI into orthodox Islam. (Tr. 49; Pl.Ex. 55 at 264-65.) However, some NOI followers dropped out of the movement, while others formed splinter groups. (Tr. 49-50; Pl.Ex. 55 at 267.) Professor Lincoln testified that fourteen such groups were formed after Elijah Muhammad’s death. (Tr. 49-50, 101.) In 1977, Louis Farrakhan left Wallace Deen Muhammad’s community and resurrected the original NOI as it had been under Elijah Muhammad. (Tr. 50-51; Pl.Ex. 55 at 268.) NOI currently has members throughout the country, and its principal mosque is headquartered in Chicago. There are several mosques in the New York City metropolitan area. (Tr. 850; Pl.Ex. 55 at 267.) All NOI members are of African descent. (Tr. 218; Pl.Ex. 55 at 20.) Most NOI followers convert during adulthood to NOI from the faith, often Christianity, followed in their childhood homes. (Pl.Ex. 55 at 25-26.) Many of the men who convert to NOI, including some of the plaintiffs, do so while incarcerated. (Tr. 74, 148, 255, 847, 849.) One reason why the prisons are a rich source of recruits for the NOI is that prisoners are among the most disaffected members of society. (Tr. 74-75.) There is frequently a racial component to this disaffection; that is, some black prisoners feel that they are the victims of a world controlled by whites. (Tr. 75.) In addition, prisoners also have considerable amounts of time to reflect on their lives. (Tr. 75.) Because many of the men who convert do so while incarcerated, the NOI has made efforts to be as active as possible in prison systems throughout the United States. (Pl.Ex. 55 at 77-78, 106-10; Tr. 849.) During the trial of the instant action, at least three witnesses — Imam Umar, Minister 9X and Antonio McCloud— testified about the NOI’s activities in the prisons in the United States. (Tr. 503, 805, 808-09, 811, 816, 848-50, 874-76, 882-83.) While members of the NOI have some distinctive beliefs and practices not shared by other Muslim groups, followers of the NOI and orthodox Muslims share some common beliefs. For example, all Muslims, including members of the NOI, believe that Islam is based on the “five pillars”, ie., shahada (declaration of the faith), salat (prayer), zakat (charity), sawam (fasting), and hajj (pilgrimage to Mecca). (Tr. 93-94, 553-54.) Muslims throughout the world, including members of the NOI, affirm their faith in the shahada — “there is no God but Allah and Muhammad is the seal of the prophets” — and all Muslims believe Muhammad is the last “prophet.” (Tr. 22, 33, 553-54.) Unlike orthodox Muslims, NOI members believe that Allah came to the United States in 1930 in the person of Fard. (Tr. 32-33, 527, 688-89; Pl.Ex. 1 at 27-28,145-46, Pl.Ex. 6 at 14.) They also believe that Fard is the great Mahdi, who is, according to Islamic tradition, the greatest teacher who comes at the end of time. (Tr. 32, 34, 52-53.) Also, unlike orthodox Muslims, NOI members believe that Elijah Muhammad is the “messenger of God.” (Tr. 33, 53.) NOI followers do not recognize “imams” as religious leaders; NOI clergymen are referred to as “ministers.” (Tr. 151-52, 887.) Members of the NOI do not believe in life after death. (PI. Ex. 1 at 31-32; Pl.Ex. 6 at 14.) NOI followers also have a distinctive creation story. They believe that trillions of years ago, a great explosion separated the earth and the moon. Once the earth cooled, there was Allah, who was black, and a world populated only by black people. However, the devil, “Yakub,” along with twenty-four mad scientists, conducted a series of genetic experiments on the Island of Patmos. Over time, they produced non-black genes from which the different races resulted — brown, red, yellow and white — each progressively less pure and less black. (Tr. 39-40; Pl.Ex. 1 at 28, Pl.Ex. 55 at 71-73.) Professor Lincoln has called this belief “the central myth of the Black Muslim movement.” (Pl.Ex. 55 at 72.) Followers of the NOI believe that all blacks are divine and thus have a special relationship with Allah; they believe whites are ungodly and devils by nature. (Tr. 556; Pl.Ex. 55 at 63, 69-72,104.) Followers of the NOI also believe that black people in America are part of the “lost and found nation.” (Pl.Ex. 1 at 28; Pl.Ex. 55 at 71.) Like all Muslims, members of the NOI follow the Holy Quran. (Tr. 23-24, 554; PL Ex. 55 at 118.) However, according to Professor Lincoln, the writings that are “critical” to NOI believers are those of their leaders, ie., Elijah Muhammad and Louis Farrakhan. (Tr. 24, 76-77, 92.) The Final Call newspaper, the book Message to the Black Man in America by Elijah Muhammad and various study guides and lessons are among the publications read by followers of the NOI. (Tr. 77-78, 228-30, Pl.Ex. 55 at 124-29, 269.) NOI members, like other Muslims, observe Ramadan. (Tr. 563-64.) NOI members also celebrate several holidays not observed by other Muslim sects. Among them are Savior’s Day on February 26 (to honor Fard), Founder’s Day on October 7 (to honor Elijah Muhammad) and a daylight fast similar to Ramadan during the month of December. (Tr. 33-35.) The December Fast was instituted in opposition to the Christmas holiday and to focus the attention of followers away from what Elijah Muhammad believed to be the temptations during December of irreligious excesses — in particular, Santa Claus, commercialization of the holiday and celebratory overeating. (Tr. 35-36.) Followers of the NOI typically attend congregational meetings, including a religious service that is commonly held on Sundays; in addition, NOI temples hold frequent meetings, and NOI members are required to attend two or more meetings a week. (Tr. 57-58, 291, 850-51; Pl.Ex. 55 at 18.) NOI services typically begin with a Muslim prayer, the introduction of some Arabic phrases and a short lecture by a minister-in-training. (Tr. 60-63.) The “main event” of an NOI service is the ceremony by the minister, which is basically a lecture on a theme such as the accomplishments and heritage of black people or black economic security. (Tr. 65-66.) The texts relied upon are often historical or anthropological. (Tr. 65-66; Pl.Ex. 55 at 113-14.) Professor Lincoln testified that the lectures are designed to foster self-esteem, empowerment and the members’ reflection on their black identity. (Tr. 66.) At the end of the service, there is an opportunity for members of the audience to come forward and join the movement. (Tr. 68-69.) Followers of the NOI follow a variety of restrictions in their day-to-day lives. For example, they are not to eat pork or cornbread, gamble, smoke, drink liquor, use drugs, overeat or buy on credit. They are taught to be clean-shaven and do not wear beards or moustaches. (Tr. 36, 150-51; PI. Ex. 55 at 18, 76-77.) They are supposed to pray five times a day facing east. (Tr. 151.) They believe premarital and extramarital sex is immoral. (Tr. 36; Pl.Ex. 55 at 76.) The evidence offered at trial concerning whether the NOI should be considered a “Muslim” religion and by whom it is so considered was varied. For example, certain of Professor Lincoln’s writings suggest the NOI is a sect of Islam: The Muslim dream is to have a solid Black Muslim community in the United States, recognized and supported by Moslems throughout the world as an accepted part of Islam. This is not sheer expediency: from the earliest days of the movement, the Black Muslims have considered themselves devout adherents of the Moslem faith. They recognize Allah as the one true God (though they see Him not as a unique deity but as the Supreme Black Man among Black Men, all of whom are divine). They base their services on both the Quran and the Bible, and they are learning Arabic so as to be able to rely entirely on the original Quran. They observe the classic Moslem prayer ritual and dietary laws, and they hold in high esteem the traditional pilgrimage to Mecca. (Pl.Ex. 55 at 220.) On the other hand, Professor Lincoln also has written that: On certain fundamental points of doctrine, however, the Black Muslims have departed widely from the orthodox Muslim tradition. Partly for this reason, and partly from an instinctive militancy toward newcomers, the official representatives of orthodox Islam in the United States have refused any recognition of the Black Muslims. (Pl.Ex. 55 at 220.) According to Professor Lincoln, two NOI doctrines are “at the heart of the controversy: their insistence that blacks must separate themselves from the abhorrent and doomed white race and their belief that it is the manifest destiny of the Black Nation to inherit the earth.” (Pl.Ex. 55 at 221.) Professor Lincoln, noting “the orthodox Moslem ideal of an all-embracing unity of humankind”, has questioned whether these two doctrinal differences are “so extreme that the Black Muslims must be said to have excluded themselves from Islam.” (Pl.Ex. 55 at 221.) Professor Lincoln’s conclusion was that the NOI appears to be a Muslim sect: The question will have to be answered by Moslem theologians, but it seems likely that they will find the Black Muslims to be within the pale — a legitimate if somewhat heretical Moslem sect. Every faith has its deviates, and every international faith makes broad allowances for interpretations of doctrine to fit local conditions. The fact that orthodox Moslems in America reject the movement has no real significance; most Christian sects and denominations were likewise spurned by the orthodox in their founding years. And a clear precedent exists in Islam itself for the ultimate recognition of heretics in sects despite major doctrinal differences. (Pl.Ex. 55 at 221.) Similarly, at trial, there was other evidence and testimony indicating that some orthodox Muslims might not consider followers of the NOI to be “Muslims” (e.g., Tr. 88, 157, 191, 473, 482, 546-47; PI. Ex. 15), but there also was testimony indicating that NOI followers would be considered “Muslims.” (E.g., Tr. 88, 94, 686.) According to an article written by Imam Umar, an orthodox Muslim imam employed by the state DOCS, Louis Farrakhan, the current leader of the NOI, is not an orthodox Muslim, refuses to “accept the truth of the Holy Quran” and “teaches religious falsehood.” (Pl.Ex. 60.) In this article, Imam Umar wrote: If [Louis Farrakhan] changes and accepts to evolve and draw closer to a genuine practice of Islam, as did his leader the Honorable Elijah Muhammad and those who followed him, he will have to accept Islam the religion, admit and condemn his past teaching of religious falsehood, become Muslim[,] indeed, become an Imam and conduct himself somewhat like Imam W. Deen Mohammed [a former leader of the Nation of Islam, who has since become an orthodox Muslim] has done, as a Muslim. If he does, the Nation of Islam will be no more. (Pl.Ex. 60.) Imam Umar’s article focuses on differences between the tenets of the NOI and mainstream Muslims, in particular the NOI’s beliefs already described that the black man is God and the white man is the devil. (Pl.Ex. 60.) II. Plaintiff Muhammad’s Allegations Plaintiff Muhammad joined the NOI in the mid-1980’s, prior to his incarceration. (Tr. 287.) From 1989 to 1991, Muhammad was incarcerated in the Bronx House of Detention for Men and various jails on Rikers Island while awaiting trial. (Tr. 286.) Following his conviction, he was transferred to the custody of DOCS until his parole in January 1994. (Tr. 287.) Muhammad is currently a ministerial representative under the auspices of Minister Conrad Muhammad of Mosque No. 7 in Harlem, New York. (Tr. 289.) While on Rikers Island, Muhammad maintained a cordial relationship with Imam Luqman, currently the DOC Director of Ministerial Services, and, at least initially, with most of the individual DOC Muslim chaplains, many of whom he knew personally prior to his incarceration. (Tr. 414-15.) While on Rikers Island, Muhammad was permitted to wear attire that identified him as an NOI member, specifically, a suit, white shirt, bow tie and crescent pin. (Tr. 415.) As a result, many inmates approached Muhammad with questions about NOI and Minister Louis Farrakhan. (Tr. 415-16.) Muhammad testified he was mindful of a DOC prescription against proselytizing, had no dispute with the necessity for the regulation and thus discussed NOI matters in a neutral manner, “without, of course, causing any security ruckus.” (Tr. 293, 415-16.) Muhammad explained his role as a member of the NOI to educate prospective followers. He testified that: Our job is, as I said to you previously, we are like bait to fish. Fish that swim up against the stream or against the sea generally die, because they’re going against the grain of their own nature. Eventually, when they smell food in the atmosphere, they go after food. We become the food. Or as the bible may put it, the bread of life. And they take part of that bread of life and they become living beings again or what you and I both know as the being reborn. (Tr. 416-17.) In fact, Muhammad testified that he provided ample bait to the fish, recalling that he “fed” approximately ninety-five young black men at three Rikers Island facilities alone. (Tr. 417-18.) Muhammad did not receive an infraction from DOC staff for proselytizing. (Tr. 416.) While at Rikers Island, Muhammad studied to become a ministerial representative. In the course of his studies, many “courtesies” were extended to him by DOC officers and officials, some of whom were themselves NOI members. (Tr. 419-20.) These officers, including one captain, personally delivered study materials to Muhammad. (Tr. 419-20.) Some material was sent to him by Minister Nelson Muhammad, who was then the minister of Temple No. 7. (Tr. 420.) Muhammad also met with Minister Nelson Muhammad in a personal visit at Rikers Island and spoke on the telephone with Minister Nelson Muhammad and Minister Louis Farrakhan while at Rikers Island. (Tr. 420-421.) Although he was an NOI member, Muhammad never requested an opportunity to observe the December Fast while incarcerated in DOC facilities because, at that time, he had not acquired sufficient knowledge of its significance to his faith. (Tr. 320.) Muhammad attended the regular Friday service for Muslims and Muslim classes. (Tr. 670.) Although Muhammad testified to a dispute between him and some Muslim inmates who once barred his access to Jumu’ah service, he does not allege that DOC personnel prevented him from attending the Muslim service. (Tr. 425-27.) He believes Imam Askia Muhammad, a DOC Muslim chaplain, played some role in this incident. (Tr. 427.) III. Testimony of Imam Askia Muhammad Imam Askia Muhammad (“Imam Askia”) has been a chaplain for DOC for the past four and a half years. (Tr. 668.) He is currently assigned to the Queens House of Detention and the James A. Thomas Center (“JATC”), a correctional facility on Rikers Island. (Tr. 669.) At the Queens House of Detention, which houses some 500 inmates, approximately thirty inmates identify themselves as Muslim. At JATC, which houses some 1200 inmates, approximately 150 identify themselves as Muslim. (Tr. 669.) Imam Askia is currently unaware of any inmates, in either of these facilities, who identify themselves as members of the NOI (Tr. 669.) During the four and a half years Imam Askia has been a DOC facility chaplain, he can recall only three inmates who were members of the Nation of Islam. (Tr. 677.) Imam Askia was previously assigned to the George R. Vierno Center (“GRVC”) on Rikers Island, where he knew one inmate who identified himself as a member of the NOI— plaintiff Muhammad. (Tr. 669.) Imam Askia and plaintiff had a friendly relationship. (Tr. 671.) Plaintiff regularly attended Imam AsMa’s Muslim classes which were typically held three times a week, as well as the weekly congregate prayer services. (Tr. 670.) In addition, Imam Askia and plaintiff had frequent private conversations in the Imam’s office, in the mosque and in the hall. (Tr. 670.) They discussed a variety of topics, including conditions in the facility, food and religious matters. (Tr. 670-71.) While DOC does not officially recognize the position of “Muslim inmate representative,” it is the practice of Imam Askia to elect or select an inmate representative to assist him in order to create a sense of community among the Muslim inmates and to teach the inmates to accept leadership from one of their own. (Tr. 671-72.) Where Imam Askia believes that the inmates are mature and knowledgeable about the principles of Islam, he presides over a process in which the inmates elect their own representative. (Tr. 672-73.) Imam Askia always supervises the process to ensure that it is conducted in a peaceful and fair manner and does not compromise the security of the facility. (Tr. 673.) While plaintiff was incarcerated at GRVC, he was selected Muslim inmate representative in an election conducted without the knowledge, consent or supervision of Imam Askia. (Tr. 673.) Imam Askia and plaintiff subsequently discussed the election, and Imam Askia explained that he was troubled because the process had taken place in his absence. (Tr. 674.) Imam Askia also explained that he did not believe that plaintiff possessed the requisite qualities for inmate representative. (Tr. 674.) Imam Askia explained that while he considered plaintiff a “good brother” and that he loved him, he did not feel that plaintiff could establish the necessary rapport with inmates and the administration required of the inmate representative. (Tr. 674.) There was differing testimony concerning whether the discussion concerning plaintiff’s suitability to serve as the Muslim inmate representative touched on plaintiffs beliefs as a member of the NOI. (Tr. 674.) Plaintiff testified that Imam Askia asked him to repudiate his beliefs, became hostile and used derogatory language. (Tr. 317-18.) However, based on the testimony and demeanor of the witnesses, I find the testimony of Imam Askia to be credible. Imam Askia testified that he did not ask plaintiff to abandon his beliefs as a member of the NOI. (Tr. 674. ) I also find that Imam Askia did not raise his voice, jump out of his chair or use profanity in his discussion, as alleged by plaintiff. (Tr. 677-78.) Imam Askia noted that plaintiff was visibly disappointed that Imam Askia did not choose him as inmate representative. (Tr. 676.) Contrary to plaintiffs suggestions, I find that Imam Askia was not hostile or suspicious of the NOI. For most of his early life, Imam Askia was a member of the NOI. (Tr. 675. ) When he was sixteen years old, his parents followed Imam W.D. Muhammad, the son of Elijah Muhammad, in a transition made by a large number of members of the NOI to what is commonly called orthodox Islam. (Tr. 675.) Imam Askia made this transition with his parents. (Tr. 675.) Imam Askia frequently discusses his background and experiences with inmates as a way of encouraging them to get out of jail and to improve their lives. (Tr. 675-76.) In particular, he has discussed his experiences in the NOI with the plaintiff. (Tr. 675.) These discussions with the plaintiff focused on the benefits Imam Askia felt he had received from his upbringing in the NOI, such as discipline and a sense of responsibility. (Tr. 676.) After he was told that he would not be chosen to serve as Muslim inmate representative, plaintiff made a request to Imam Askia for separate Muslim services. (Tr. 678, 679, 681.) Imam Askia responded to his request by asking why, if plaintiff considered himself a Muslim, he wanted separate Muslim services and what specific needs were not being met by the Muslim services already provided. (Tr. 679.) Plaintiff expressed his desire that certain topics — specifically, African-American self-reliance and African-American problems — be discussed more directly and forcefully. (Tr. 679.) Imam Askia recalled telling plaintiff that he believed these topics were already being addressed but could incorporate them to a greater degree into the classes already being offered. (Tr. 679-80.) Plaintiff apparently did not follow up on this response. (Tr. 682.) Plaintiff testified that he was prevented from attending congregate services by a group of inmates assigned to ensure the security of the facility Mosque. (Tr. 319.) However, I find the testimony of Imam Askia to be credible. First, Imam Askia testified that plaintiff attended his Muslim services “regularly.” (Tr. 670.) Second, Imam Askia testified that, just as there is a correction officer present to provide security for every inmate group activity, correction officers, and only corrections officers, are assigned to provide security for all religious services, such as Jumu’ah prayer or classes. (Tr. 677.) Imam Askia also testified that inmates do not have the authority to prevent another inmate from attending religious services. (Tr. 677.) If an inmate, for whatever reason, would have to be excluded from religious services, it would be the responsibility of the chaplain, not the inmates, to deal with the matter. (Tr. 678.) In his four and a half years as a facility chaplain, Imam Askia has never prevented any inmate from attending religious services, including the plaintiff. (Tr. 678.) Imam Askia never “directed” that plaintiff be prevented from attending services. (Tr. 678.) Contrary to plaintiffs allegation, Imam Askia does not find NOI beliefs to be offensive. (Tr. 680.) Imam Askia is well acquainted with Minister Louis Farrakhan and agrees with many of his teachings. (Tr. 687-88.) In addition, as a chaplain in a jail, Imam Askia expects to encounter inmates with many different views about religion, including Islam. (Tr. 678-79.) Imam Asida testified that, “My basic function is to deal with differences and if I were to get offended I don’t think that I could do that job successfully.” (Tr. 680.) IV. DOC Religious Accommodation Policy The DOC religious accommodation policy is set forth in Directive 3252, “Congregate Religious Services.” (Pl.Ex. 30.) This directive is based on section 8 of the New York City Board of Correction Minimum Standards (Pl.Ex. 58), as well as underlying federal consent decrees. (Tr. 744-46, 752.) Among its provisions, Directive 3252 provides as follows: All inmates shall be permitted to congregate for the purpose of religious worship including, religious instruction such as, scriptural study, and shall also be permitted to congregate for the purpose of participating in spiritual retreats. (Pl.Ex. 30 at III.B.) Inmates shall have the unrestricted right to hold any religious belief and to be a member of any religious group or organization, as well as the right to disaffiliate with any religious group or organization. (Pl.Ex. 30 at III.C.) Inmates shall be permitted to exercise their religious beliefs in any manner, provided that the exercising of such religious beliefs does not present a clear and present danger to the safety and security of the institution or would disrupt the orderly administration of the institution. (Pl.Ex. 30 at III.D.) In addition, Directive 3252 permits inmates to celebrate recognized religious holidays on an individual or congregate basis, observe dietary laws and to wear and possess religious articles and clothing. (Pl.Ex. 30 at III.G-H.) All persons, including inmates, are forbidden to proselytize, to compel an inmate to become part of a religious organization or to dissuade an inmate from exercising his religious beliefs. (Pl.Ex. 30 at III.E.) Under Board of Correction Minimum Standards, members of the NOI are entitled to receive, without restriction, publications from any source, including family, friends and publishers. (Pl.Ex. 58, Title 40, § l-14(a).) Incoming publications may not be censored or delayed unless they contain specific instructions on the manufacture or use of dangerous weapons or explosives or plans for escape. (Pl.Ex. 58, Title 40, § 1-14(c)(3).) V. The Testimony of Imam Luqman Imam Abdush Shahid Luqman (“Imam Luqman”), the DOC Director of Ministerial Services, testified about the DOC religious accommodation policies and about his personal relationship with the plaintiff. As Director of Ministerial Services, Imam Luqman is responsible for the supervision and administration of the DOC religious programs. (Tr. 691-92; Pl.Ex. 31 at 1.) Prior to assuming his current position, Imam Luqman worked as a DOC chaplain in various correctional facilities and as a religious volunteer for fifteen years. (Tr. 692-93.) DOC currently employs forty-four salaried chaplains, eleven of whom are Muslim. (Tr. 774; Pl.Ex. 1 at 32.) The remaining chaplains are either Catholic, Protestant or Jewish. (Pl.Ex. 57.) Although none is currently an NOI member, at least one chaplain, Imam Asida, is a former member. (Tr. 675, 697.) Chaplains are hired after their credentials have been screened by various ecclesiastical organizations, including the Board of Rabbis (for Jewish rabbis), the Archdiocese of Brooklyn (for Catholic clergy), the Council of Churches for the City of New York (for Protestant ministers) and the World Community of Islam (for Muslim imams). (Tr. 695; Pl.Ex. 31 at 1.) After their credentials have been confirmed by the ecclesiastical organizations, Imam Luqman and his staff interview candidates to determine their suitability for working in a jail setting. (Tr. 695-96.) DOC interviews any candidates sent to it, and would consider for employment an NOI candidate should one be approved by the ecclesiastical organization. (Tr. 697.) Imam Luqman testified on cross-examination that a Protestant chaplain would provide services to all Protestants, even if the chaplain were himself a Baptist and the congregation included Episcopalians. (Tr. 725-26.) However, a Protestant chaplain would not provide services to Catholic inmates. (Tr. 726.) DOC also utilizes the services of approximately 750-800 volunteers, seventy-five percent of whom are religious volunteers. Approximately twenty to twenty-five percent of the religious volunteers are of the Muslim faith. (Tr. 698-99.) NOI members have been among this pool of volunteers, although they have not historically comprised a substantial percentage. (Tr. 699.) DOC provides generic congregate religious services for the four major faith groups, i.e., Catholic, Jewish, Protestant and Muslim. (Tr. 699-700.) The purpose of generic services is twofold: (i) to reach effectively as many inmates as possible, in light of their large number and rapid turnover and (ii) to be tolerant and thus avoid offending members of other faiths, who may have somewhat different practices or nuances to their own form of worship. (Tr. 699-700.) Thus, for example, a generic Protestant service attempts to reflect the basic practices and beliefs of all Protestants, so that Episcopalian or Pentecostal inmates will be able to derive some benefit and solace from the generic service. (Tr. 699-700.) In a typical generic Muslim service, a facility imam performs the ceremony, known as the “khutbah." (Tr. 700-01.) In the course of the khutbah, the imam may utilize the services of an outside religious volunteer or a member of the inmate population. (Tr. 701.) At the larger jails on Rikers Island, approximately 100-800 inmates may attend a Muslim service, with a lesser number attending at the borough correctional facilities. (Tr. 701-02.) The inmates who have attended these generic services have been members of various Muslim sects including the NOI, Sunni, Shiite, Ansarullah and Sikh. (Tr. 701.) DOC also provides Quranic, Bible and Torah study classes. (Tr. 702-03.) In the Quranic class, a facility imam or a qualified inmate teaches the Quran to both new converts to Islam and more advanced students. (Tr. 703.) Recent converts learn the fundamentals of Islam, known as “mubadi,” while advanced students study the Quran in more depth, as well as study Arabic. (Tr. 703) Attendance varies from five to seventy-five inmates, depending on the size of the facility and the season. (Tr. 703-04.) Inmates may also meet with individual spiritual advisors of their choice in a “clergy/counsel visit.” (Tr. 704.) At an inmate’s request, the facility chaplain contacts the spiritual leader of a particular congregation or parish and arranges the necessary security clearances for the chosen spiritual advisor. (Tr. 704r-05.) Also, clergy/counsel visits frequently are initiated in the first instance by spiritual advisors rather than by inmates. (Tr. 704-05.) These individual counsel visits are frequently utilized by inmates, and the number of visits is unlimited. (Tr. 705.) They are designed to accommodate specific or individual needs that cannot be provided on a group basis. (Tr. 714-17.) Muslim inmates receive Halal meals while in DOC custody. (Tr. 705.) Upon their initial entry into the DOC system, they may register as members of the Muslim faith, which allows them to receive Halal meals. (Tr. 705.) DOC recognizes various religious holidays, including Ramadan. (Tr. 640, 705.) At the beginning of each fiscal year, the Director of Ministerial Services reviews the proposed holidays and submits appropriate directives about holiday celebrations to pertinent DOC officials, including facility wardens, the DOC Deputy Commissioner of Strategic Planning and Programs and food services personnel. (Tr. 706.) In the event an inmate requests to celebrate a religious holiday not on the list of approved holidays, DOC attempts to accommodate that inmate in a spirit of tolerance, unusually through a clergy/eounsel-type visit. (Tr. 706-08.) DOC maintains a procedure that allows inmates to request religious accommodations. (Pl.Ex. 30; Tr. 711.) This procedure was previously utilized by a group of approximately twenty-five inmates of Chinese descent, housed on a DOC prison barge. (Tr. 707-08, 711.) The group requested that a congregate religious service be conducted by a Buddhist monk. Imam Luqman, with the assistance of the DOC Jade Society, an Asian-Ameriean fraternal organization of civilian and uniformed staff, located a Buddhist monk to provide a Buddhist service on the prison barge for the group. (Tr. 707-08.) Aside from this request, no other group has requested a particular religious accommodation. (Tr. 708.) There have been requests made by individual inmates either directly or indirectly, i.e., through other DOC employees to Imam Luqman. (Tr. 709.) For example, in response to individual requests, DOC has arranged for a minister of the Ansarullah community to visit a member of that sect and for a Greek Orthodox priest to visit with two Greek Orthodox inmates. (Tr. 709.) Imam Luqman also testified about his encounters with plaintiff Muhammad. Imam Luqman’s relationship with plaintiff was a cordial one, both before and after plaintiffs conversion to the NOI. (Tr. 712-13.) Originally a Sunni Muslim, plaintiff attended several congregate Muslim services conducted by Imam Luqman and sought individual counselling from the Imam on several occasions. (Tr. 712-13.) Following his conversion to the NOI, plaintiff attended a religious ceremony conducted by Imam Luqman at the GRVC on Rikers Island. (Tr. 713.) In the course of his twenty-year career with DOC, Imam Luqman has made the acquaintance of perhaps ten inmates who identified themselves as NOI members. (Tr. 713-14.) Plaintiff was the only member of that group who made particular requests for a religious accommodation, albeit in an indirect manner. (Tr. 714-15). Although Imam Luqman understood plaintiff to have requested a collective December Fast (Tr. 714-15), he is apparently mistaken, as plaintiff himself testified that he never made such a request. (Cf. Tr. 320.) Imam Luqman may have construed the complaint or amended complaints in this action to constitute the purported “request” — as well as a purported request for an NOI minister to teach a class, which plaintiff himself did not testify he requested. In any event, Imam Luqman testified that DOC attempts to accommodate individual requests on an individual basis, typically through a clergy/counsel visit. Imam Luqman testified repeatedly that an inmate’s individual request, such as one for a December Fast, would be considered. (Tr. 729, 732-33.) As an example of DOC’s willingness to accommodate individual religious requests, Imam Luqman noted that one of DOC’s current inmates is a well-known Lubaviteh rabbi held at the facility known as North Infirmary Command (“NIC”). (Tr. 715-16.) Because the kosher food provided by DOC apparently did not meet that sect’s standard, Imam Luqman’s office arranged for members of the rabbi’s Lubavitch community to be permitted to bring appropriate food directly to the jail for the rabbi. (Tr. 715-16, 729-31.) According to Imam Luqman, the distinction between the request of the Chinese Buddhists (which was granted) and what Imam Luqman understood plaintiff to be seeking, was twofold: (i) there was no underlying generic congregate service available for Buddhist inmates in the first instance, as opposed to an NOI inmate, who can derive at least some benefit and solace from a generic Muslim service and (ii) plaintiff was an individual whom Imam Luqman believed was acting on his own behalf in seeking apparently collective accommodations — as opposed to representing an actual group — and honoring the request thus would be an imposition of religious services on a group of inmates without their consent. (Tr. 716-17.) Plaintiff alleged that he was denied a position as an inmate representative by a facility chaplain at GRVC, Imam Asida. (See Second Am. Compl. ¶¶ 40-42.) According to Imam Luqman, a facility chaplain may exercise his discretion and allow an inmate to assist him in the conducting of services. (Tr. 717-18.) A person who assists a Muslim chaplain (or assists a sheykh in a Muslim mosque) is known as a “naib.” (Tr. 718.) The manner in which the person is chosen is determined by the individual chaplain, and the selection is within the chaplain’s discretion. (Tr. 718-19.) VI. NOI Volunteers in DOC Facilities: The Testimony of Antonio McCloud Antonio McCloud (“McCloud”) has been Director of Volunteer Services of DOC since 1992. (Tr. 801.) As such, he acts as a liaison between DOC and the civilian community, soliciting volunteers to provide a variety of services to inmates in DOC facilities. (Tr. 804.) The mission of the volunteer program is to solicit and use community volunteers to assist in providing inmate services and to help inmates make the transition back to the community. (Tr. 804.) Volunteers provide a number of important services, including counseling, literacy assistance, law library assistance, general library assistance, drug and alcohol counseling, self-development and empowerment workshops, job readiness training, AIDS education, case management and, in the nursery at the women’s facility, child care aid. (Tr. 805.) Although there was no testimony that McCloud was himself an NOI member, it is undoubtedly fair to say that McCloud has been involved in a number of NOI activities. For example, he has visited NOI mosques in Harlem and New Jersey approximately four times a year for the past fifteen years. (Tr. 811.) In addition, McCloud has participated in self-development training conducted by NOI’s paramilitary arm, the Fruit of Islam (“FOI”), prior to his employment with DOC. (Tr. 812.) NOI volunteers serve the DOC inmate population in two capacities, i.e., as guest speakers and by conducting personal development workshops. (Tr. 806, 810.) For example, Minister Conrad Muhammad, a prominent NOI figure, has spoken at two Rikers Island facilities: the George Mochen Detention Center (“GMDC”) and the Otis Bantum Correction Center (“OBCC”). (Tr. 811.) NOI volunteers, under the direction of Minister 9X, the NOI Director of Prison Ministries, have been conducting self-development workshops at GRVC on Rikers Island. (Tr. 806.) These workshops stress such themes as self-esteem, responsibility, respect and empowerment. (Tr. 806, 850.) The sessions are held once a week for two hours and are open to all inmates in the facility who wish to participate, regardless of religious affiliation. (Tr. 806-07.) Generally, twenty to thirty inmates attend each session. (Tr. 807.) The volunteers bring in written materials prepared for the workshop, as well as the publication, the Final Call, to utilize as part of the discussion. (Tr. 810.) The Final Call is left for the inmates to read after the workshop is over. (Tr. 810.) DOC began to offer these workshops after Minister 9X approached McCloud about providing NOI volunteers to become involved in New York City jails. (Tr. 808.) McCloud was “very excited about the opportunity” to have NOI volunteers serving inmates in DOC facilities. (Tr. 808.) Their self-development program, he felt, had a proven track record of helping inmates make a successful transition back into civilian life. (Tr. 808-09.) Since assisting inmates in making a successful transition back to civilian life is a major focus of the Volunteer Services program, McCloud began to work with Minister 9X and other NOI members to set up a program of self-development workshops in a DOC facility. (Tr. 809.) At the time of trial, these self-development workshops had not been offered for two months because of scheduling difficulties with NOI volunteers. (Tr. 807-08.) However, McCloud testified that he planned to resume the program by the end of January. (Tr. 808.) In addition, McCloud plans to expand the program to other facilities. (Tr. 807.) According to McCloud, if Minister 9X and his colleagues are unavailable, McCloud will look for someone else in the NOI community to provide these workshops. (Tr. 815.) VII. Testimony of Robert Daly and Robert Wangenstein Concerning DOC’s Operations and Allocation of Resources Robert Daly (“Daly”) is the DOC First Deputy Commissioner and is responsible for the implementation of DOC policy. (Tr. 737.) He reports directly to the Commissioner. (Tr. 737.) Daly has held a variety of positions in his twenty-two-year career with DOC, including General Counsel and Special Counsel to the Commissioner. (Tr. 738.) Daly testified about the factors considered by DOC in allocating its resources and operating the correction system in New York City. Robert Wangenstein (“Wangenstein”) is the Warden of the Brooklyn House of Detention for Men. (Tr. 617.) In his twenty-three-year tenure with DOC, he has held a variety of positions, including DOC Deputy Commissioner of Security in the period 1990-1994. (Tr. 617-20.) Wangenstein testified about the logistical and security concerns inherent in the operation of DOC facilities, using the Brooklyn House of Detention as a representative facility. A. Overview of the relevant DOC operations DOC presently operates sixteen jails, of which ten are located on Rikers Island and the remainder in the boroughs; three hospital prison wards; and seventeen holding facilities in the city courts, known as “court pens.” (Tr. 621; Joint Pretrial Order, Ex. C ¶ 2.) About half of the DOC facilities provide cell block housing, with the other half providing dormitory housing. (Tr. 764.) These facilities hold inmates of various classifications, including detainees awaiting trial, City-sentenced inmates serving one year or less, State-sentenced inmates who are temporarily in the DOC system for a trial or appeal, State-sentenced inmates who have been paroled and have been rearrested on parole violations, Immigration and Naturalization inmates and, on occasion, federal inmates held by agreement or contract. (Tr. 622; Def.Ex. E). At the time of trial, of the 19,000 inmates in DOC custody, about 3500 have been convicted of crimes and are serving sentences of one year or less in DOC custody. (Tr. 763, 780-81.) About 1600 inmates are paroled state inmates who have been rearrested on parole violations and are in DOC custody awaiting a hearing or remand to DOCS. (Tr. 783.) Approximately 200 inmates are sentenced inmates serving their sentences at state correctional facilities who are in temporary DOC custody for various other reasons, such as awaiting trial. (Tr. 782-83.) The balance and great majority, some 13,700 out of 19,000, are pre-trial detainees who are either being held without bail or have been unable to make bail. (Tr. 785.) In short, there are significantly more pre-trial detainees than there are sentenced inmates in DOC custody. (Def.Ex. E^L) Unlike DOCS, which holds sentenced inmates for set periods of time, DOC’s system is primarily a detention system, where inmates are held to await trial, as described above. (Tr. 750.) The inmate turnover time is brief. In fiscal year 1994, 111,072 inmates entered DOC custody. (Def.Ex. E-4.) Although forty percent of these entering inmates remained in DOC custody after thirty days, forty-two percent were discharged from the system within a mere six days. (Def.Ex. E-4.) More than three-quarters of the entering inmates were discharged within sixty to eighty-nine days. (Def.Ex. E-4.) DOC expects that 130,000 inmates will enter DOC custody this year. (Tr. 750.) Of that number, DOC expects fifty percent to leave the system in about six days and the other fifty percent to depart approximately 50 days later. (Tr. 750.) On a typical day, 300-350 persons enter the DOC system, and approximately the same number are discharged. (Tr. 750.) On a typical day, approximately 2000 inmates are transported to the five boroughs for court appearances. (Tr. 751.) Many of those inmates do not return because they receive time-served sentences, have their cases dismissed or make bail. (Tr. 751.) About 100 sentenced inmates are transferred daily to DOCS custody, for a total of 500 transfers per week. (Tr. 751.) On a typical day, about 1200 inmates on Rikers Island are moved to different DOC facilities on Rikers Island pursuant to the ongoing process of classifying and reclassifying inmates based upon changes in their inmate profile. (Tr. 751.) For example, special housing may be required for medical reasons or where an inmate is deemed a suicide or escape risk. (Tr. 751.) In sum, I find on essentially uncontroverted evidence that the DOC prison population is exceptionally dynamic; it suffers from a relatively high number of inmates as well as an exceedingly high inmate turnover rate. The dynamic nature of DOC’s population distinguishes it from other systems as to which evidence was offered, making comparisons to those systems inapposite. DOC’s current operating budget for fiscal year 1995 is $746 million. (Tr. 738, 767, 769.) The operating budget comprises staff salaries, overhead, food for inmates and the cost of services. DOC’s capital budget for fiscal year 1995 is $45 million. (Tr. 767-68.) The capital budget covers expenses such as the construction of new or additional jail space, adding new beds and fire safety. (Tr. 739.) DOC has been reducing its operating budget. (Tr. 740.) Reductions are continuing into the immediate future; DOC, along with other City agencies, has been ordered to reduce its budget due to a $500 million gap in the City budget in the current fiscal year and the anticipated $2 billion gap in fiscal year 1996. (Tr. 740.) Specifically, at the time of trial, DOC had been directed to reduce its operations by $18 million by July 1,1995, and by an additional $18 million six months after that. (Tr. 740, 764-65.) Although DOC’s budget has, of necessity, been reduced, its inmate population has been increasing. (Tr. 741.) At the time of trial, there were approximately 19,000 inmates in DOC custody. (Tr. 763.) Based upon the growth rate for the inmate population, DOC anticipates holding approximately 20,200 inmates in June 1995; 20,900 inmates by November 1995; and over 21,000 inmates by 1996. (Tr. 763.) In addition, in fiscal year 1994, approximately 110,000 inmates entered into DOC custody; by the end of fiscal year 1995, DOC anticipates its entering population to reach 130,000 inmates. (Tr. 741.) Although the number of inmates is increasing, DOC has been forced to reduce its staff. For example, in calendar year 1994, 1600 additional inmates entered the system but during that same year, DOC lost 400 correction officers and 400 civilian workers. (Tr. 740.) At its high point, in 1992, DOC employed about 11,950 correction officers. (Tr. 743, 786.) The number was about 10,600 officers at the time of trial. (Tr. 786.) In addition, DOC has not been able to hire any correction officers since December 1991, and so DOC has been forced to rely upon increasing amounts of overtime to operate its facilities, which strains the assigned staff. (Tr. 742.) Furthermore, attrition has taken its toll on DOC, with 1200 additional people retiring or leaving voluntarily within the last three years. (Tr. 742.) Moreover, as a result of two recent City severance programs, 400 civilians out of a total civilian staff of 2100, have left DOC. (Tr. 742-43.) DOC also anticipates losing several hundred more civilians under the current City severance program. (Tr. 743.) As a result of the loss of staff positions, DOC recently has been forced to close a number of correctional facilities including the Brooklyn Correctional Facility (“BCF” or the “Brig”), which formerly housed 1,350 inmates; the south wing of the Manhattan Detention Complex (“MDC” or “the Tombs”), which formerly housed 388 inmates; and a converted Staten Island ferry boat berthed at Rikers Island, which formerly housed 162 inmates. (Tr. 74142.) Other correctional facilities closed in recent years due to budgetary concerns include the Forebell Facility, a sentenced women’s facility in Brooklyn, and two prison barges. (Tr. 621-22.) Another result of the staff cutbacks and budgetary concerns is the reduction or elimination of numerous inmate programs deemed valuable and successful by DOC. For example, a 900-bed drug program has been reduced to 200 beds. (Tr. 744.) All the correction officers assigned to the inmate grievance program have been reassigned. (Tr. 744.) DOC anticipates eliminating the inmate indoor recreation program by the end of January 1995 in order to utilize the 170 uniformed correction officers in other areas. (Tr. 744.) DOC also anticipates eliminating all its civilian counselors, who help inmates secure employment, housing and various social services, following their release from custody. (Tr. 748.) DOC’s overall aim has been to reduce discretionary programs, leaving only those programs required by consent decrees or the minimum standards of two independent oversight agencies, the New York City Board of Correction (see New York City Charter § 626) and the New York State Commission of Correction (see Correction Law, Article III, §§ 4048). (Tr. 74445; Pl.Ex. 58.) Currently, virtually all, if not all, of the inmate programs offered by DOC provide services required by consent decrees or the minimum standards. (Tr. 752.) These programs include recreation, law library, visits, religious services and educational programs. (Tr. 752; Pl.Ex. 58.) However, mandated programs will be affected by the current downsizing. For example, as a result of a federal consent decree, inmates cannot be “locked-in” their cells or dormitory until 11:00 p.m., which allows them to congregate in housing area “day rooms.” DOC plans to move to modify the consent decree to change the lock-in time to 9:00 p.m., thereby reducing the number of correction officers needed to monitor the congregating inmates and saving 350 correction officers’ posts. (Tr. 749.) Another factor DOC considers in allocating its resources is the likely effect on the inmate population. For example, a newspaper article about the proposed early lock-in time led to a hunger strike among inmates on Rikers Island. (Tr. 757.) This required DOC immediately to meet with members of the various Inmate Councils to educate them about the process that would have to be undertaken before the change could be effected. (Tr. 757.) Currently, the DOC programs budget comprises about 1.7% of the current operating budget ($12 million) and is expected to be reduced to slightly under 1% ($6 million). (Tr. 753.) Of this amount, the amount allocated for religious programs is $900,000 to $1 million, an amount that has been relatively stable for the past few years and which is not expected to change. (Tr. 753, 772-73.) This amount reflects a recent increase in which DOC upgraded several temporary chaplain positions to full-time permanent positions, in response to an increase in the inmate population. (Tr. 753, 773-74.) As stated swpra, DOC currently employs forty-four chaplains and has no plans to reduce this number. (Tr. 773-4; Pl.Ex. 57.) B. The Rationale of Generic Services In determining what programs will be preserved and what programs will be reduced or eliminated, DOC considers the security implications, the program’s efficiency and its cost. (Tr. 758.) As a result, DOC has developed a policy of providing programs in a generic manner. (Tr. 758.) For example, generic religious services allow DOC to service large numbers of inmates in a single space within a facility at a minimal cost. (Tr. 758-59.) There are numerous factors that DOC cites in favor of its policy of generic services. Among them is the reality that space is at a premium in DOC facilities. DOC jails were built to house a far smaller inmate population than they currently do. (Tr. 759.) As the inmate population grew, DOC added housing areas to the core facilities but did not add concomitant program areas. For example, the Adolescent Reception and Detention Center on Rikers Island (“ARDC”), buflt for 1200 inmates, now holds almost 3,000 inmates. (Tr. 759.) As a result, there is a greater demand for program services in disproportionately smaller program areas. (Tr. 759.) Another concern is staffing. With generic services, DOC requires fewer clergy, escort and security staff. (Tr. 759.) This also furthers security concerns, because a detention correctional system is designed to minimize inmate movement within a facility in order to lesson the chances of inmate altercations— either with escorting officers or passing inmates — or the exchange of contraband among inmates. (Tr. 759-60.) By minimizing different available services, DOC can reduce the movement taking place outside the housing areas, when escort officers would be needed. (Tr. 760.) Generic services also have an impact on DOC’s ability to classify and house inmates efficiently. (Tr. 760.) For example, since forty percent of inmates identify themselves as Catholic, DOC does not have to set aside a particular space for those inmates. There are enough Catholics so that they can be dispersed throughout the correction system according to their security classification, and whatever jail they are placed in will have enough other Catholic inmates to participate in a Catholic service. (Tr. 760.) If, however, inmates were classified by individual religious sects, DOC would have to consider religious affiliation in classifying and housing inmates. If s