96 CIV. 420 (DLC)





For Plaintiff:
Rachel Goslins, Esq.
Shari Brandt, Esq.
Mitchell Karlan, Esq.
200 Park Avenue
New York, NY 10166-0193

For Defendants:
Dennis Vacco, Esq.
120 Broadway
New York, NY 10271

By: Terryl L. Brown, Esq.
Rebecca Ann Durden, Esq.

DENISE COTE, District Judge:

Inmate Clay Chatin ("Chatin") has filed this action to complaint of disciplinary action taken against him on August 30, 1995, for praying while in the recreation yard at Green Haven Correctional Facility ("Green Haven"), a facility of the New York State Department of Correctional Services ("DOCS"). Chatin was sentenced to a fifteen day term of keeplock1 for violating rule 105.11 of the DOCS' Standards of Inmate Behavior: All Institutions (the "Rules") which forbids "religious services, speeches or addresses" unless they are approved by the facility superintendent or his designee.

Chatin filed this action pro se on January 22, 1996. On July 22, 1996, at the request of the Court, the firm of Gibson, Dunn & Crutcher through it partner Mitchell Karlan agreed to represent the plaintiff. On October 1, 1996, the plaintiff filed an amended complaint. On April 14, 1997, with the consent of the defendants, the plaintiff filed a second amended complaint.

The Court conducted a bench trial on June 25, 1997, at which the witnesses gave their direct testimony by affidavit.2 Chatin and Saleem Diaz, who is currently incarcerated at Fishkill Correctional Facility and was the prison Imam at Green Haven at the time of the incident, testified for the plaintiff. Chatin answered questions placed by the Court during the trial, but was not cross-examined. George Bartlett ("Bartlett"), Deputy Commissioner for Facility Operations for DOCS; Lucien LeClaire ("LeClaire"), Director of the Emergency Response Team Operations for DOCS; Captain Kenneth A. Decker ("Decker"), who was at the time of the incident a Captain at Green Haven; Corrections Officer Peter Stetz ("Stetz"), the corrections officer at Green Haven who filed the August 30, 1995 misbehavior report; and Iman Warith-Deen Umar ("Imam Umar"), Ministerial Program Coordinator and Islamic Affairs Specialist for DOCS, testified for the defendants. At trial, Bartlett answered questions placed by the Court and Imam Umar was cross-examined by plaintiff's counsel.

During the trial, the plaintiff declined the Court's invitations to amend his complaint further to add a claim under the Fourteenth Amendment's Due Process Clause. On June 25, 1997, however, the plaintiff sent a letter to the Court requesting leave to amend. At a conference held on the record on July 7, 1997, the Court ruled on certain evidentiary issues that had arisen at trial, set a schedule for the motion to amend, and dismissed (1) the plaintiff's claims against the State of New York as barred by the Eleventh Amendment,3 see Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1132 (1996), and (2) the plaintiff's claims against Artuz for lack of personal involvement. See Sealy v. Giltner 116 F.3d 47, 51 (2d Cir. 1997).

Through the proposed third amended pleading, the plaintiff claims that the defendants violated his rights under RFRA,4 the First Amendment's Free Exercise of Religion Clause, and the Fifth Amendment's Due Process Clause made applicable to the States through the Fourteenth Amendment.5 As the defendants have pointed to no reason why the proposed amended complaint requires either a reopening of discovery or the trial record, the motion to amend is granted. See, e.g., New York State Elec. & Gas v. Secretary of Labor, 88 F.3d 98, 104 (2d Cir. 1996). Since the due process issue has been fully briefed,6 the Court proceeds to the merits of the case and for the reasons stated below, finds that Rule 105.11 is unconstitutionally vague as applied to the plaintiff. Pursuant to Rule 52, Fed.R.Civ.P., the Court's findings of fact and conclusions of law follow.


Chatin, who has been incarcerated in DOCS' facilities since 1991, was incarcerated at Green Haven from January 1993 to August 1996. Chatin has been a practicing Muslim since June 1993.

According to Chatin and Imam Umar, Muslims are required to pray five times a day. The time of each prayer is based on the proximity of the sun, moon and earth, and thus, changes during the year. The first prayer, Fajr, is prayed before sunrise, but after dawn breaks. The second prayer, Salat Thuur, is prayed when the sun reaches its zenith and begins to go down. The next prayer, the Salat-Ul-Thuur, is prayed mid-way between noon and sunset. The fourth prayer, the Maghrib or the sunset prayer, is the prayer for which Chatin was disciplined and is prayed when the sun begins to go below the horizon. The fifth prayer, the Isha, is prayed about two hours after dark. Each prayer lasts between five and ten minutes. The daily prayers may be prayed individually. The only obligatory group prayer is the Friday noon prayer, the Jumu'ah.

When praying formally, which is known as the Salat, a Muslim moves through a series of positions or a rakat. In performing a rakat, the individual (1) begins in the standing position facing Mecca; (2) raises his hands to his ears; (3) bows with his hands either in front or at his side; (4) returns to a standing position; (5) kneels with knees, toes, hands and part of the face touching the ground; (6) sits; (7) returns to the bowing position; and (8) stands. A Muslim performs two rakats during the Fajr, four rakats during the Salat Thuur and the Salat-Ul-Thuur, three rakats during the Maghrib and four rakats during the Isha. After completing the requisite rakats, a Muslim turns his head to the right and then to the left.

If a Muslim is unable to perform the formal prayer at the appropriate time, he may make an informal prayer. A prayer may be postponed if the place where the Muslim intends to pray is dirty, he is unable to make the appropriate ablutions or the prayer would disturb others or might be interrupted. If a Muslim misses a prayer or makes only an informal prayer, he is required to make up the formal prayer. One school of Islamic teaching says that a Muslim can perform a Salat without movement by sitting quietly and going through the rakats in his mind. Chatin testified that he believes that if he puts off making a prayer at the required time and dies before he makes it up then he will go to "Hell." He also believes that Allah is not obligated to accept a prayer which is not made at the required time.

In DOCS' facilities generally, and at Green Haven specifically, inmates are permitted to participate in religious services in areas set aside for worship. In addition, prisoners may engage in individual demonstrative prayer in their cells so long as they do not disturb other inmates. The guidelines that prison officials use to administer these policies are set forth in Directives emanating from DOCS' central office. Directive 4202 relates to religious programs and practices. Directive 4202, amended in 1988, reads in relevant part:

Individual prayer by inmates will be allowed in the privacy of their own living quarters; in designated religious areas whenever feasible.

Congregate or group prayer may only occur in a designated religious area during a religious service or at other times authorized by the Superintendent.

Demonstrative prayer will be allowed only to the extent that it is not disturbing to others. (Emphasis supplied)

The term "individual prayer" in the first sentence of the Directive is intended by DOCS to refer to individual demonstrative prayer. As DOCS' witnesses freely admit, they would have no way of identifying or regulating individual prayer done in silence and without any outward sign.

Decker, who at the time Chatin was disciplined was Acting Deputy Superintendent for Security Services at Green Haven, testified that during the summer of 1995, Green Haven staff discovered that the inmates were attempting to organize to protest Green Haven's efforts to double the number of inmates in cells. Although inmates are prohibited from meeting in groups in the prison yard, groups of inmates nonetheless gathered in groups and engaged in conduct that may or may not have been prayer while guarded by inmates posted at the corners of the weight courts. Initially, Green Haven staff attempted to discourage this activity by emphasizing Directive 4202's limitation on congregate prayer. Then, according to Decker, inmates began posting guards around inmates engaged in individual prayer, even to the extent of denying corrections officers access to the weight courts. Responding to confusion among corrections officers about whether individual demonstrative prayer was allowed in the recreation yard, on July 17, 1995, Decker issued a memorandum to clarify the application of Directive 4202. The memorandum states, in relevant part:

[t]he position of this facility is that no demonstrative prayer will be allowed in any area of the facility other than designated religious areas or individual cells. This includes both individual and group prayer.

On August 30, 1995, Chatin was in the recreation yard for the evening recreation period. At Green Haven, there are three recreation periods each day - -from 9:00 a.m. to 11:00 a.m, 1:00 p.m. to 3:00 p.m., and 6:00 p.m. to 9:45 p.m. During the evening recreation period, inmates are allowed to return to their cells at 7:30 p.m. Once back in his cell, an inmate may not return to the yard. Depending on his work or educational program schedule, an inmate is generally assigned to either a morning or afternoon recreation period. Additionally, an inmate usually has access to the yard every other evening. In the recreation yard, inmates are allowed to exercise, play sports including contact sports, talk, watch television, and make telephone calls. At Green Haven, in an area known as the Muslim "workout court", Muslim inmates are allowed to congregate to discuss the Koran.

On August 30, 1995, Chatin chose not to return to his cell at the 7:30 p.m. return time because he was waiting to make a telephone call to his family. On that day, the time for the Maghrib fell at approximately 8:15 p.m. At 8:15 p.m., Chatin sat on a bench in the Muslim workout court and said the Maghrib Salat, making movements that would be reasonably understood by an observer as ritualized behavior associated with prayer. While he was sitting and saying the Salat silently to himself, Chatin made the following motions to simulate rakats: (1) he put his open hands to either side of his head with the palms facing forward; (2) he crossed his hands over his stomach; (3) he leaned forward over his knees with his hands stretched out in front of him; and (4) he sat up and crossed his hands over his stomach. He repeated these motions three times and when he was finished he turned his head to the right and then the left. He testified that he did not ask any other inmate to stand guard while he said his prayer and that no one else was on the workout court.

After saying his prayer, Chatin went to make his telephone call. He was then approached by corrections officers who told him that he was being put on keeplock status. On August 31, 1995, Chatin was served with, a copy of a written misbehavior report charging him with violating Rule 105.11 and with disobeying a direct order. Every DOCS inmate is given a set of Rules when they enter the New York State prison system. These Rules have been approved by the Secretary of State and inmates who violate these Rules can be disciplined. Rule 105.11 provides that

[r]eligious services, speeches or addresses by inmates other than those approved by the Superintendent or designee are prohibited.

Following a Tier II hearing held between September 2, and September 12, 1995, Chatin was found guilty of violating Rule 105.11 and not guilty of disobeying a direct order. As a result of the guilty verdict, Chatin was given a penalty of fifteen days in keeplock, a fifteen day loss of package, commissary and phone privileges and assessed a $5.00 fine. The hearing officer's decision was affirmed on September 20, 1995.

There was no evidence at trial that silent individual demonstrative prayer is intended or understood by DOCS to constitute either a religious "service" or religious "speech," that is, the conduct regulated by Rule 105.11. To the contrary, DOCS' religious experts - - Imam Umar; Imam Abdul-Haqq, who was Muslim Chaplain at Green Haven at the time of these events; and Jimmie Harris, Director of Ministerial and Family Service for DOCS - - testified that individual demonstrative prayer is not a religious service. Bartlett was unable to define the term "religious service," but observed that Rule 105.11 would be the Rule under which an inmate would be charged if he engaged in conduct prohibited by Directive 4202.


Motion to Amend

An amendment of the pleadings after trial is governed by Rule 15(b), Fed.R.Civ.P. Rule 15(b) provides in relevant part that

[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

Fed.R.Civ.P. 15(b) (emphasis supplied). When a court assesses whether a post-trial amendment of the pleadings should be allowed to conform to the proof, "the pivotal question is whether prejudice would result." New York State Elec. & Gas, 88 F.3d at 104 (citing Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 907 (2d Cir. 1997)). See also Fisher v. Vasser College, 70 F.3d 1420, 1449 (2d Cir. 1995), aff'd en banc, 114 F.3d 1332 (2d Cir. 1997). The decision of whether to allow such an amendment is left to the discretion of the district court. See Vermont Plastics, Inc. v. Brine, Inc., 79 F.3d 272, 279 (2d Cir. 1996).

The plaintiff argues that the defendant will not be prejudiced because the application of Rule 105.11 to Chatin's conduct was always an issue in this action. In the plaintiff's pro se complaint, he stated, in relevant part:

37. [t]his threatened punishment, and punishment, is unlawful, and in violation of our constitutional rights, as there is NO RULE in the D.O.C.S. rule book that lists prayer in the yard as a rule violation.

38. Yet, this administration continues to threaten inmates with punishments for violating rule # 105.11, when that rule is not at all descriptive of the act of the Muslim making an individual prayer in the yard. . . .

39. As a direct result of all of the afore-mentioned, your plaintiff's legal rights to the free practice of religion are being capriciously and arbitrarily violated by all of the named defendants as such rights are protected by the First, and Fourteenth Amendments of the Constitution, and by the New York State Corrections Law, sec. 610.

(emphasis in original). In addition, DOCS' understanding of Rule 105.11 was raised during discovery at each of the six depositions of DOCS' employees. The Joint Pretrial Order and the trial briefs included the unconstitutional vagueness of DOCS' policies as an issue for trial. At trial, the Court heard argument on the vagueness issue and witnesses testified regarding the meaning of Rule 105.11 and its application to the plaintiff's conduct on August 30, 1995. Finally, in its preliminary statement to the parties at trial, the Court stated:

an issue that I must reach before I consider any of the First Amendment or RFRA issues . . . is a due process issue, in effect. The plaintiff here was disciplined for violating a rule which prohibits, among other things, conducting a service. I didn't see in any of the materials8 any suggestions that what he was doing was a service or considered by anyone within the prison system to be a service.

The defendants argue that they did not consent to try the due process claim, and point to the plaintiff's repeated refusal during trial, despite the Court's invitations, to amend his complaint to add a due process claim.9 The defendants, however, have not identified any prejudice that they suffer from allowing the plaintiff to amend his complaint to conform to the evidence. For example, the defendants have not identified any way in which their litigation strategy was adversely affected by the tardy amendment, any additional discovery that is necessary,10 or any need to reopen the trial to take additional evidence. This inability to identify any prejudice is not surprising since the core issue in this case has never changed, that is, whether the defendants violated the plaintiff's constitutional rights by punishing him for violating Rule 105.11. Thus, while "[o]rdinarily" the assertion of a new claim for liability after the close of evidence will be prejudicial, Fisher, 70 F.3d at 1449, in this case it is not. In sum, finding that the defendants are not prejudiced by the proposed amendment, the Court will allow the plaintiff to amend his complaint to conform to the evidence at trial.11

Due Process Claim

Due process demands that penal statutes not be unduly vague Penal statutes must provide individuals, including those charged with enforcement of the statutes, with adequate notice of the conduct that is prohibited. See Kolender v. Lawson, 461 U.S. 352, 357 (1982); Grayned v. City of Rockford, 408 U.S. 104, 108 109 (1972). There is a two-part test to determine if a statute "as-applied" is unconstitutionally vague.

[A] court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it.

United States v. Strauss, 999 F.2d 692, 697 (2d Cir. 1993) (citations and internal alterations omitted). See Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498 (1981); Einaugler v. Supreme Court, 109 F.3d 836, 842 (2d Cir. 1997). The Supreme Court has come to recognize the second component of the test as the more important one. See Kolender, 461 U.S. at 358. See also Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities and the New Policing, 97 Colum. L. Rev. 551, 601-604 (1997) (discussing the evolution of the void-for-vagueness doctrine).

The degree of vagueness that may be tolerated "depends in part on the nature of the enactment." Hoffman Estates, 455 U.S. at 498. Thus, there is a greater tolerance for "enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Id. at 499. See Reno v. ACLU, 117 S.Ct. 2329. Q344-45 (1997). Where the lack of clarity "threatens to inhibit the exercise of constitutionally protected rights" there is the greatest cause for concern. Hoffman Estates, 455 U.S. at 499. See Grayned, 408 U.S. at 109. Here, Rule 105.11 carries penalties which are more akin to criminal rather than civil penalties and also implicates the free exercise of an individual's religion. On the other hand, while sentenced inmates "do not shed all constitutional rights at the prison gates, . . . [l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights . . . ." Sandin v. Conner, 507 U.S. 472, 485 (1995) (internal quotation omitted).

In this case, disciplining Chatin's conduct under Rule 105.11 runs afoul of both prongs of the vagueness test. Although Rule 105.11 is clear on its face as to what conduct is prohibited - - conducting an unauthorized religious service or speech - - the text of the Rule does not provide an individual of ordinary intelligence with reasonable notice that solitary, silent, demonstrative prayer is prohibited conduct, that is, that such prayer is a religious "service" or religious "speech." Similarly, Rule 105.11 does not provide corrections officers with explicit standards for enforcement. Rule 105.11 prohibits "[r]eligious services, speeches or addresses by inmates other than those approved by the Superintendent or designee." While it is entirely possible that some individual conduct may constitute a religious service, here, there has been no testimony, or even persuasive argument, that the plaintiff's silent, individual prayer, even though accompanied by ritualized gestures, constituted a religious service or would be clearly understood by corrections officers to constitute one. The DOCS' official who addressed this issue at trial indicated, in effect, that he doesn't know if the conduct in which the plaintiff engaged is a religious service, but that Rule 105.11 is the Rule that officers would use when filing a misbehavior report against an inmate for demonstrative individual prayer in the prison yard. The thrust of the testimony was that, in the absence of any Rule which clearly applied, by default Rule 105.11 was harnessed into service. The inescapable conclusion is that DOCS' employees have unfettered discretion in interpreting what conduct is prohibited by Rule 105.11. It is not surprising, therefore, that the treatment of prisoners who engage in individual, silent, demonstrative prayer in the recreational yard has varied greatly, with some corrections officers allowing such prayer, and others not.

The defendants have attempted to avoid a finding for the plaintiff through several arguments. The principal argument on which the defendants have relied in defending this case is the contention that Chatin's conduct was in clear violation of Directive 4202 even if it is not in clear violation of Rule 105.11. This argument fails. Directives, including Directive 4202, are formulated as guidelines for the superintendents of DOCS' facilities to use for internal management and, unlike Rules, are not provided to inmates, although some Directives may be available to inmates in the facility libraries. The uncontested evidence at trial was that Directives may not serve as a basis for disciplining inmates. Rules, on the other hand, are approved by the Secretary of State and provided to all inmates upon entering a DOCS' facility. The Rules serve as the basis for discipline of inmates. In sum, it is undisputed that Chatin was disciplined for violating Rules 105.11 and not Directive 4202. In these circumstances, the defendants cannot avoid an analysis of the language of Rule 105.11 by relying on the more definitive statement of prison policy contained in Directive 4202.12 In any event, Decker testified that even Directive 4202 caused such confusion that he felt compelled to issue his July 17, 1995 memorandum to explain its application.

The defendants next contend that Chatin cannot raise a due process challenge to Rule 105.11 since he knew his conduct violated the Rule. In making this argument the defendants rely on the principle that an individual cannot complain of the vagueness of a statute as applied to others' conduct where his conduct is "clearly proscribed" by it. United States v. Amer, 110 F.3d 873, 878 (2d Cir. 1997). Chatin testified that he "knew that inmates had been sometimes disciplined for praying in the yards. Some officers let an inmate pray quietly without disciplining them, while others do not." This testimony does not show either that Chatin's conduct was clearly proscribed by the Rule or that Chatin believed it to be. It proves nothing more than that he had observed arbitrary discipline of inmates praying in the prison yard.

The defendants further contend that Chatin's right to due process has not been implicated since he did not, in their view, suffer a deprivation of a liberty interest as that term was defined in Sandin, 507 U.S. 472 (1995). They argue that his sentence of only fifteen days in keeplock was not an "atypical, significant deprivation" of liberty, Id. at 486. This argument, however, is inapposite here. The Supreme Court's decision in Sandin considered the circumstances under which the "procedural protections set forth in Wolff [v. McDonnell, 418 U.S. 539 (1974)]" applied to sentenced prisoners. Id. at 487. The vagueness problem at issue here, which is derived directly from the Due Process Clause, cannot be cured by procedural protections given during the wrongful prosecution for a violation of a Rule, just as procedural protections cannot cure the constitutional violation which occurs when a corrections officer files a false misbehavior report in retaliation for an inmate exercising his constitutional rights. See Arce v. Walker, 96-2012, 1998 WL 119612 at *5 (2d Cir. Mar. 18, 1998) (quoting Sandin to indicate that prisoners "retain other protection from arbitrary state action" under other portions of the Constitution); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (substantive due process right may not be "obstructed, regardless of the procedural means applied"); Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995) (Per Curiam).

Finally, the defendants argue with some force that the Court should apply a more flexible standard given the deference courts are required to give to the decisions of prison administrators. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977). The Court is mindful that deference is due even in instances, such as this one, where the First Amendment freedoms of inmates are implicated. Id. at 125-26. Deference, however, cannot save the defendants' use of Rule 105.11 under the facts of this case. On the other hand, nothing in this Opinion should be understood as a finding that DOCS could not regulate the conduct in which Chatin engaged through a duly enacted Rule or, if the facts warrant it, through those already existing Rules which prohibit inmates from creating disturbances or interfering with others.13 Even under the First Amendment, prison regulations imposing burdens on an inmate's free exercise of religion need only be reasonably related to a legitimate penological interest. See O'Lone v. Shabazz, 482 U.S. 342, 349 (1987). Given the conclusion on the due process claim, the Court need not reach the plaintiff's First Amendment claim.


The Court finds that Rule 105.11 is unconstitutionally vague as applied to the conduct for which the plaintiff was punished. Accordingly, the Court enjoins the further enforcement of Rule 105.1 to punish inmates for engaging in individual, silent, demonstrative prayer. The defendants are also ordered to expunge Chatin's disciplinary record and to restore to him $5.00, plus interest. Pursuant to the ruling of July 17, 1997, the plaintiff's claims against the State of New York and Artuz are dismissed. the plaintiff's claims under RFRA are barred and the Court does not reach the plaintiff's First Amendment claim. The plaintiff should provide a proposed judgment within five days on notice to the defendants.

As the prevailing party, pursuant to the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. §1988, the plaintiff may be entitled to the award of costs including appropriate attorney's fees. The plaintiff shall submit any application for fees and costs within two weeks of the date of this Opinion. The defendants shall submit any opposition within two weeks of the plaintiff's application.


Dated: New York, New York

April 22, 1998


Denise Cote

United State District Judge


1Keeplock is a form of discipline whereby an inmate is confined to his cell for twenty-three hours per day.

2The affidavits representing the direct testimony were exchanged before trial. The parties gave each other written notice before trial of which witnesses were required to be present at the trial for cross-examination.

3The plaintiff had argued that the Religious Freedom Restoration Act ("RFRA") abrogated the Eleventh Amendment. The Supreme Court's ruling that RFRA was unconstitutional barred this argument as well as the plaintiff's claim for relief under RFRA. See City of Boerne, Texas v. P.F. Flores, 117 S.Ct. 2157 (1997).

4The RFRA claim is barred. See supra note 3.

5The plaintiff is seeking the following relief: (1) a declaration that defendants violated his rights under the First Amendment by punishing him for praying alone and silently while seated on a bench in the prison yard; (2) a declaration that the policies, regulations and practices of defendants that punish inmates for conducting non-disruptive individual prayer are unconstitutionally vague; (3) permanent and injunctive relief prohibiting defendants from punishing Chatin for engaging in individual non-disruptive prayer; (4) an order requiring defendants to expunge from Chatin's prison record the decision finding him guilty of violating Rule 105.11 and to restore to him the five dollar fine imposed; and (5) an award of attorney's fees and costs.

6At the Court's request, the parties briefed the issue of vagueness in their papers filed prior to trial - - although in that briefing the plaintiff focused on vagueness as a First Amendment issue rather than a due process issue. The parties addressed the due process issue directly in litigating the motion to amend. Specifically, the defendants argued that the addition of a due process claim would be futile.

7Those Directives that prisoners are permitted to read, including Directive 4202, are usually available in prison libraries.

8The affidavits which comprised the direct testimony of the trial witnesses had been submitted to the Court prior to the date of trial.

9The plaintiff's counsel initially chose not to amend the complaint to reassert the due process claim contained in the original pleading because of a belief that his argument that Rule 105.11 was unconstitutionally vague was best presented through a First Amendment claim.

10The defendants did not take any discovery from the plaintiff in this action.

11While the Third Amended Complaint sets forth the vagueness issue in the context of a "substantive" due process claim, both parties address in their briefs on the motion to amend the line of cases under the Due Process Clause on which the Court relies for its decision.

12While courts should defer to any limiting interpretations of enactments proffered by enforcement agencies, see Kolender, 461 U.S. at 355, any attempt by the defendants to construe Rule 105.11 as encompassing the conduct proscribed by Directive 4202 is unsupported by the text of the Rule and cannot control the Court's analysis. See Shuttlesworth v. Birmingham, 394 U.S. 147, 158-159 (1968) (Alabama Supreme Court's narrow construction of vague law was not entitled to deference because construction did not overcome the fact that the law was actually administered in an impermissible manner). An analogy may be drawn to the long standing rule in cases relating to federal agency action. An agency's interpretation of its own regulations is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). See also Pauling v. Secretary of the Department of the Interior, 960 F.Supp. 793, 803 (S.D.N.Y. 1997) (DLC) (citing cases).

13Rules 104.10-104.13 allow DOCS to penalize inmates for causing a disturbance and Rules 107.10-107.20 regulate inmate interference with DOCS' personnel and other inmates.