Pilgrim v. Artus

Filing 78

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Randolph F. Treece's September 1, 2011 Report-Recommendation and Order (Dkt. No. 74 ) is ADOPTED in its entirety. ORDERED, that defendants motion to dismiss (Dkt. No. 69 ) is GRANT ED and Pilgrim's Complaint (Dkt. No. 1 ) is DISMISSED. ORDERED, that the Clerk close this case. Signed by Judge Gary L. Sharpe on 12/5/11. (Attachments: # 1 Report-Recommendation and Order) (served on plaintiff by regular and certified mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PRINCE PILGRIM,
Plaintiff,
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Civ. No. 9:07-CV-1001
(GLS/RFT)

NEW YORK STATE DEPARTMENT OF CORRECTIONAL
SERVICES; BRIAN FISCHER, Commissioner of New York
State Department of Correctional Services,
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Defendants.

APPEARANCES:

OF COUNSEL:

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PRINCE PILGRIM
Plaintiff, Pro Se
92-A-8847
Attica Correctional Facility
Box 149
Attica, NY 14011
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendants
Department of Law
The Capitol
Albany, NY 12224

AARON M. BALDWIN, ESQ.
Assistant Attorney General

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RANDOLPH F. TREECE
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Prince Pilgrim, a New York state prison inmate proceeding pro se and in forma pauperis,
commenced this action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). Dkt. No. 1, Compl. On April 20, 2009, Defendants filed
a Motion for Summary Judgment (Dkt. No. 36), which Plaintiff opposed (Dkt. No. 47). On March
18, 2010, this Court issued a Report and Recommendation granting Defendants’ Motion in part and

denying it in part. Dkt. No. 50. Over objections by both party opponents (Dkt. Nos. 55 & 56), on
September 17, 2010, the Honorable Gary L. Sharpe, United States District Judge, adopted the Report
and Recommendation in its entirety. Dkt. No. 57, Order. Pursuant to this Order, the claims against
Defendant Dale Artus, the Superintendent of Clinton Correctional Facility, were dismissed for lack
of personal involvement, and, alternatively, as being without merit. See Dkt. No. 50 at pp. 9-18.
Judge Sharpe found, however, that a question of fact existed as to whether Plaintiff’s claim that his
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rights under the RLUIPA and First Amendment were violated. In light of Plaintiff’s pro se status,
and in the interest of judicial economy, the New York State Department of Correctional Services
(“DOCS”)1 and DOCS Commissioner Brian Fischer were substituted as proper Defendants solely
to Plaintiff’s RLUIPA and First Amendment claims. Id. at pp. 26-27. Consideration of the remedy
prescribed by the RLUIPA,2 the Eleventh Amendment, and the affirmative defense of qualified
immunity demanded that Plaintiff’s claims against these Defendants be limited to non-monetary

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equitable relief, only. See id. at pp. 27-31.
Defendants now bring a Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1). Dkt. No. 69. Plaintiff opposes the Motion. Dkt. No.
73. For the reasons that follow, we recommend that Defendants’ Motion be granted and Plaintiff’s
Complaint be dismissed in its entirety.
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I. BACKGROUND
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The Court is aware that, on April 1, 2011, New York State Department of Correctional Services and Parole
merged together into one agency now entitled New York State Department of Corrections and Community Supervision
(“NYSDOCCS”). In order to maintain consistency with our previous Report and Recommendation substituting
Defendants in this instant action, we will continue to refer to this specific Defendant as DOCS.
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The Supreme Court recently had occasion to consider the question of what relief is available under a RLUIPA
cause of action. See Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651 (2011). The Supreme Court found, as we did in
our previous Report and Recommendation on this matter, that RLUIPA does not expose the States to private suits for
money damages. Thus, our prior finding of the same remains valid.

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For a complete recitation of the factual background of this case, we refer to this Court’s
Report and Recommendation addressing former Defendant Artus’ Motion for Summary Judgment.
See Dkt. No. 50. In short, Plaintiff claims that while he was an inmate at Clinton Correctional
Facility, his constitutional and statutory rights were violated, including the right to freely exercise
his religion. Plaintiff, a registered Nation of Islam (“NOI”) member,3 complains that misbehavior
reports were issued against him because, undisputably, Plaintiff was wearing his hair in dreadlocks
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in violation of a DOCS’ policy prohibiting this hairstyle except for members of the Rastafarian faith.
The crux of Plaintiff’s Complaint, as it currently stands, is that the discipline he received was
unlawful under RLUIPA and the First Amendment because DOCS Directive 4914 regarding
acceptable inmate hair styles violates his right to freely exercise his religion.
II. DISCUSSION

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A. Standard of Review
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing FED. R. CIV. P. 12(b)(1)). Federal courts are
“duty-bound . . . to address the issue of subject matter jurisdiction at the outset.” Filetech S.A. v.
France Telecom S.A., 157 F.3d 922, 929 (2d Cir. 1998). In contemplating a motion to dismiss for

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lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the Court must “accept as true all
material factual allegations in the complaint[,]” though “argumentative inferences favorable to the

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While NOI dogma does not require their members to wear dreadlocks, Plaintiff asserts that he wears his hair
in that style pursuant to his own personal faith and personal interpretations of the Qu’ran and the Bible. Dkt. No. 47-1,
Pl.’s Decl., dated Aug. 31, 2009, at ¶ 43. The record before us shows that Plaintiff has been growing dreadlocks since
approximately 1993, and there is nothing in the record undermining the sincerity of Plaintiff’s religious beliefs. See Dkt.
No. 36-3, Pl.’s Dep., dated Feb. 19, 2009, at p. 12; see also Dkt. No. 50 at pp. 19-20.

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party asserting jurisdiction should not be drawn.” Atl. Mut. Ins. Co. v. Balfour MacLaine Int’l Ltd.,
968 F.2d 196, 198 (2d Cir. 1992) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) & Norton v.
Larney, 266 U.S. 511, 515 (1925)). “In resolving the question of jurisdiction, the district court can
refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that [jurisdiction] exists.” Luckett v. Bure,
290 F.3d 493, 496-97 (2d Cir. 2002) (citations omitted); see also Aurecchione v. Schoolman Transp.
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Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Furthermore, because Plaintiff brings this action pro
se, his submissions should be held “to less stringent standards than formal pleadings drafted by
lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curium) (quoting Haines v. Kerner, 404 U.S.
519, 520 (1972)).
B. Mootness
Defendants contend that, as a result of complaints made by non-Rastafarian inmates who

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wished to maintain dreadlock hairstyles, such as Plaintiff, and “guidance from certain judicial
decisions which raised questions about whether the prohibition against non-Rastafarian inmates
maintaining dreadlocks might violate RLUIPA or the First Amendment,” on September 2, 2010,
DOCS issued a new version of Directive 4914 which “supersedes and replaces former Directive
4914.” Dkt. No. 69-3, Defs.’ Mem. of Law, at pp. 2-3 (citing, inter alia, Amaker v. Goord, 2007
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WL 4560596 (W.D.N.Y. Mar. 9, 2007) & Dkt. No. 69-1, Brian Fischer Decl., dated Dec. 23, 2010,
at ¶ 6). Diverging from the old Directive, the new Directive expressly states that “[t]he dreadlocked
hairstyle is allowed,” and makes no limitation to specific religious designations. Dkt. No. 69-2, Ex.
C, New Directive No. 4914, dated Sept. 2, 2010, at III(B)(2). Therefore, as Defendants argue,
Plaintiff’s claims for prospective equitable relief under the First Amendment and RLUIPA are moot

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given the adoption of a new version of Directive 4914. We agree.
Article III, Section 2 of the United States Constitution limits the subject matter of the federal
courts to issues which present an actual “case or controversy.” Spencer v. Kemna, 523 U.S. 1, 7
(1998); Linares v. Barkley, 2010 WL 4962998, at *2 (N.D.N.Y. Oct. 8, 2010). A case is moot
“when the issues presented are no longer live or the parties lack a legally cognizable interest in the
outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (internal quotation marks and
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citations omitted); Lavin v. United States, 299 F.3d 123, 128 (2d Cir. 2002). “The hallmark of a
moot case or controversy is that the relief sought can no longer be given or is no longer needed.”
Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983); see also Prins v. Coughlin, 76 F.3d 504,
506 (2d Cir. 1996) (“A case is deemed moot where the problem sought to be remedied has ceased,
and where there is no reasonable expectation that the wrong will be repeated.”) (internal citation
omitted).

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If a court determines an action is moot, it may still entertain such action if it is one that is
“capable of repetition, yet evading review.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 594 n.6
(1999). An otherwise moot claim is “capable of repetition” if 1) the duration of the challenged
condition was too limited in duration to permit litigation prior to its cessation, and 2) if there is a
reasonable expectation that the plaintiff will be subject to the same action again. Weinstein v.
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Bradford, 423 U.S. 147, 149 (1975). A federal court may also entertain a claim if collateral
consequences would ensue from denial of the relief sought on mootness grounds. Werber v. United
States, 149 F.3d 172, 176 (2d Cir. 1998).
Here, Defendants, on their own accord, reconsidered and effected a change in their prison
regulations and rules regarding acceptable inmate hairstyles. This change to Directive 4914 would

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seemingly grant Plaintiff exactly the relief he seeks – the ability to wear his hair in dreadlocks as his
personal dogma demands, without being subject to disciplinary action. However, a defendant’s
voluntary cessation of the contested policy must be scrutinized carefully by the courts. See Smith
v. New York State Dep’t. of Corr. Servs., 2010 WL 1192057, at *5 (S.D.N.Y. Mar. 1, 2010) (citing
New York State Nat’l Org. for Women v. Terry, 159 F.3d 86, 91-92 (2d Cir. 1998)).
In Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., the Supreme Court
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stated that a defendant’s voluntary cessation of a challenged practice may not necessarily deprive
a federal court of its power to determine the legality of the practice, and that the “standard . . .
announced for determining whether a case has been mooted by the defendant’s voluntary conduct
is stringent[.]” 528 U.S. 167, 189 (2000). “[A] party ‘claiming that its voluntary compliance moots
a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.’” Seidemann v. Bowen, 499 F.3d 119, 128-29

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(2d Cir. 2007) (quoting Laidlaw, 528 U.S. at 190). However, “mere speculation that the parties will
be involved in a dispute over the same issue does not rise to the level of a reasonable expectation
or demonstrated probability of recurrence.” Van Wie v. Pataki, 267 F.3d 109, 115 (2d Cir. 2001)
(internal quotation omitted).
Defendants have met their heavy burden of demonstrating that DOCS’s practice of allowing
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only members of certain religious sects, such as those of the Rastafarian faith, to maintain dreadlock
hairstyles, and punishing noncompliance with their Directive, has ceased, and there is no reasonable
probability that such a practice will recur. The voluntary change occurred in the form of a new,
superceding Directive, and as “[t]his change in policy is embodied in an official prison document
. . . it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

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recur.” Tawwab v. Metz, 554 F.2d 22, 24 (2d Cir. 1977) (internal quotation omitted). Additionally,
there is authority stating that a government entity’s representation that their complained-about
conduct has been discontinued is entitled to some deference in determining whether a suit seeking
prospective equitable relief against that conduct has been mooted. Lamar Adver. of Penn, LLC v.
Town of Orchard Park, New York, 356 F.3d 365, 376-77 (2d Cir. 2004). Defendants represent that
all inmates and correctional services staff have been notified of the change in Directive 4914, and
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prior Central Office Review Committee (“CORC”) decisions interpreting and enforcing the old
Directive are “no longer valid.” Fischer Decl. at ¶ 13. Defendants further enounce that DOCS has
no intention of reinstating the former Directive, and that Plaintiff, specifically, is able under the new
Directive to maintain his dreadlocks without the risk of being disciplined, “regardless of his nonRastafarian religious designation.” Id. at ¶¶ 14-15. As it seems that Defendants utilized the proper
procedures and process to revise their regulation on inmate hairstyles, there is no reason to impute

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DOCS with the intention to raise the old Directive from the dead. See Granite State Outdoor Adver.,
Inc. v. Town of Orange, Connecticut, 303 F.3d 450, 451-52 (2d Cir. 2002).
Despite the fact that, as of September 2, 2010, he has been able to maintain his dreadlocks
without the risk of being disciplined by correction officers, Plaintiff remains unsatisfied. In his
Response in Opposition to Defendants’ Motion to Dismiss, Plaintiff argues Defendants’ voluntary
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cessation of the complained-about practice does not moot his request for equitable relief because
the new Directive remains “extreme[ly] vague” and does not include the explicit representation that
dreadlocks are allowed “regardless of religious designation.” See Dkt. No. 73, Pl. Resp. This Court
is not persuaded by that argument. Prior to the changes, Directive 4914 and CORC decisions
interpreting the old Directive expressly provided that only inmates of the Rastafarian faith could

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wear their hair in dreadlocks. See Fischer Decl. at ¶ 4 (citing Dkt. No. 69-2, Exs. A, Former
Directive No. 4914 & B, CORC Decisions). That limitation has been removed and now the
Directive states, quite plainly, that “[t]he dreadlock hairstyle is allowed.” See Dkt. No. 69-2, Ex.
C, New Directive No. 4914. This declaration is unambiguous and direct and makes it “absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States
v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968). While Plaintiff may prefer
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some express recognition that members of the NOI are allowed to wear dreadlocks, the effect of the
new Directive 4914 grants Plaintiff precisely the change he seeks.4
Therefore, because there is no reasonable expectation that Plaintiff will be subject to
discipline for maintaining a dreadlock hairstyle regardless of his non-Rastafarian faith due to the
new Directive, Plaintiff’s claims for equitable relief,5 in their entirety, are moot. As previously
noted, Plaintiff’s relief is limited to non-monetary equitable relief only, pursuant to Judge Sharpe’s

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decision and the law of the case doctrine.6 Accordingly, we recommend Plaintiff’s complaint be
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Perhaps a part of Plaintiff’s demand for an explicit statement that the ability to maintain dreadlocks regardless
of religious designation stems from the fact that the former Directive 4914 was silent as to whether the dreadlock
hairstyle was permissible, and it was relevant CORC determinations, which have the effect of directives, that ruled only
inmates of the Rastafarian religion could wear dreadlocks. See Dkt. No. 69-2, Exs. A, Former Directive No. 4914 & B,
CORC Decisions. However, it would be quite a stretch of interpretation to imagine a future CORC decision that could
read some sort of religious limitation into the now expressly-provided sentence that “[t]he dreadlocked hairstyle is
allowed.” See id. at Ex. C, New Directive No. 4914.
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To the extent that Plaintiff is requesting some type of declaratory judgment, see Pl.'s Resp. at p. 10, those
claims are moot as well. See Fox v. Bd. of Trustees of the State Univ. of New York, 42 F.3d 135, 140 (2d Cir. 1994)
(requesting a declaratory judgment does not excuse the subject matter requirement of an active case or controversy).
To the extent that Plaintiff is seeking retrospective relief, such as expungement of past misbehavior reports, those claims
are barred. It is well settled that “injunctive relief is not appropriate for past injuries,” see Nation Magazine v. U.S. Dep’t
of Defense, 762 F. Supp. 1558, 1570 (S.D.N.Y. 1991), even when the Eleventh Amendment limits injunctive relief to
be the only available remedy, see Green v. Mansour, 474 U.S. 64, 68 (1985) (“[T]he Eleventh Amendment does not
prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law. We
have refused to extend [that] reasoning . . . , however, to claims for retrospective relief.”) (internal citations omitted).
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The law of the case doctrine "‘posits that when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.’” Pescatore v. Pan Am. World Airways, Inc.,
(continued...)

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dismissed in its entirety for want of subject matter jurisdiction.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants’ Motion to Dismiss (Dkt. No. 69) be GRANTED and
Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and
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Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing

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Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also FED. R. CIV. P.
72, 6(a).

Date: September 1, 2011
Albany, New York

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(...continued)
97 F.3d 1, 7-8 (2d Cir. 1996) (quoting Dilaura v. Power Auth., 982 F.2d 73, 76 (2d Cir. 1992)).

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