Walker v. Fischer et al

Filing 43

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 40 Report and Recommendations; denying without prejudice to renewal 42 Motion to Amend/Correct; granting in part and denying in part 27 Motion to Dismiss; ORDERS that all further pretrial matters are referred to Magistrate Judge Peebles. Signed by U.S. District Judge Mae A. D'Agostino on 3/26/12. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TYRONE WALKER,
Plaintiff,
vs.

9:10-cv-01431
(MAD/DEP)

BRIAN FISCHER, Commissioner of State of
New York Department of Correctional Services;
ROBERT SCHATTINGER, Director of Nutritional
Services, State of New York Department of
Correctional Services; DALE ARTUS, Superintendent,
Clinton Correctional Facility; THOMAS LaVALLEY,
First Deputy Superintendent, Clinton Correctional
Facility; MAX PATNODE, Deputy Superintendent of
Programs, Clinton Correctional Facility; RABBI ALEC
H. FRIEDMANN, Jewish Chaplain, Clinton Correctional
Facility; DAVID LUCIA, Lieutenant, Clinton Correctional
Facility; V. JOHNSON, Facility Health Services Director,
Clinton Correctional Facility; KEVIN HICKS, Sergeant,
Clinton Correctional Facility; R. TRUDEAU, Correctional
Officer, Clinton Correctional Facility; and IMAM
ASSALLAMI FADL, Chaplain, Clinton Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

TYRONE WALKER
94-A-5258
Clinton Correctional Facility
P.O. Box 2002
Dannemora, New York 12929
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

MEGAN M. BROWN, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION
Plaintiff filed a pro se civil rights complaint against a broad array of corrections
employees, alleging several deprivations of his civil rights. In his complaint, Plaintiff sets forth
several claims alleging violations of his rights under the Religious Land Use and Institutionalized
Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1(a), as well as the First, Eighth, and
Fourteenth Amendments to the United States Constitution. In a February 27, 2012 Report,
Recommendation and Order, Magistrate Judge Peebles recommended that the Court grant in part
and deny in part Defendants' motion to dismiss and deny Plaintiff's motion for leave to amend his
complaint and join additional parties without prejudice to renewal.
Currently before the Court are Plaintiff's objections to Magistrate Judge Peebles' February
27, 2012 Report, Recommendation and Order and his renewed motion to amend and supplement
his complaint.

II. BACKGROUND
A.

Plaintiff's complaint
Plaintiff is a prison inmate entrusted to the care and custody of the New York State

Department of Corrections and Community Supervision ("DOCCS"). See Dkt. No. 1 at ¶ 4. At
all times relevant to his claim, Plaintiff was confined in a special housing unit ("SHU") cell
within the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. See id.
Plaintiff is a Muslim by faith, and suffers from a gastrointestinal condition that causes him to
experience chronic constipation and severe internal hemorrhoids. See id. at ¶ 18 and Exhibit "5."
For these conditions, Plaintiff receives hemorrhoidal cream periodically, is provided with

2

Metamucil, and has been placed on a Controlled "A" High Fiber Diet. See id. at ¶ 18 and Exhibit
"1."
Plaintiff's complaint, in large part, centers upon the alleged failure of prison officials to
meet his health and religious dietary needs. Believing that the prescribed High Fiber Diet did not
provide him with adequate fiber, Plaintiff filed Grievance No. CL-57436-08 on July 14, 2008,
requesting a Kosher or a Muslim Halal Diet, which, he claims, would satisfy both his medical
needs and religious beliefs. See id. at ¶ 19. In response to his grievance, Plaintiff was advised
that the High Fiber Diet was created by the DOCCS Division of Nutritional Services in
accordance with DOCCS' policies and complies with all state-wide mandates. See id. As such,
his grievance was denied. See id. and Exhibit "2." Plaintiff appealed the denial of his grievance,
and his appeals were rejected by both the facility superintendent and by the DOCCS Central
Office Review Committee ("CORC"). See id. at ¶ 19.
On July 29, 2008, Plaintiff received a communication from Brian LeCuyer, a Nurse
Administrator at Clinton, advising him that if he was not satisfied with his existing diet, he should
complete a refusal form requesting that he be removed from the diet and that he could speak with
the appropriate religious official regarding his desire for a Kosher or Muslim Halal Diet. See
id. at ¶ 20 and Exhibit "3." On July 30, 2008, Plaintiff wrote to the Assistant Director of
Nutritional Services, reiterating his challenge to the adequacy of the High Fiber Diet, as set forth
in Grievance No. CL-57436-08. See id. at ¶ 25 and Exhibit "4." Plaintiff did not receive a
response to this communication. See id.
On August 1, 2008, Plaintiff made a written request to Defendant Rabbi Alec H.
Friedmann, the Jewish Chaplain at Clinton, requesting that he be placed on a Cold Alternative
Diet, or Kosher Diet, to address his health issues, explaining that the diet would be consistent
3

with his religious beliefs. See id. at ¶ 22 and Exhibit "5." On August 6, 2008, Defendant
Friedmann wrote back to Plaintiff, denying his request and recommending that he instead accept a
Religious Alternative Meal ("RAM"). See id. In that communication, Defendant Friedmann
informed Plaintiff that the RAM would meet all of the biblical requirements of his chosen religion
as a Muslim. See id. and Exhibit "5."
In September of 2008, after complaining to several prison officials concerning the diet
denial, including Defendant Dale Artus, Superintendent of Clinton, Defendant Max Patnode,
Clinton Superintendent of Programs, and Defendant Brian Fischer, DOCCS Commissioner,
Plaintiff voluntarily removed himself from the Controlled "A" High Fiber Diet. See id. at ¶¶ 2330 and Exhibit "12."
In his complaint, Plaintiff also complains that he was denied the opportunity to observe
weekly religious Jumuah sermons, also referred to as Khutbah, by closed circuit television from
his SHU cell. See id. at ¶¶ 35-42. In an effort to obtain access to those weekly religious sermons,
Plaintiff filed grievances on October 21, 2008, July 1, 2010, and September 21, 2010; sent a
complaint letter on July 28, 2008 to Defendant Artus; forwarded a written complaint to Defendant
Fischer on August 25, 2008; sent three letters, dated February 10, 2009, February 23, 2009, and
March 2, 2009, to Defendant Imam Assallami Fadl; and lodged a complaint, dated September 21,
2010, with Clinton Superintendent, Defendant Thomas LaValley. See id. and Exhibit "16-22."
Plaintiff further asserts a retaliation claim, alleging that after complaining about the failure
of prison officials to provide him with the requested diet and access to Jumuah sermons, he was
moved from his cell location to another, where he experienced significantly worse conditions and

4

was subjected to excessively frequent cell searches. See id. at ¶¶ 43-50.1 Plaintiff also claims that
his due process rights were violated in connection with his transfer to a different cell. See id.
Finally, Plaintiff claims that, on October 2, 2010, he was denied a request for a sweet
breakfast2 as part of his religious services and that he was provided different food from that
offered to Muslim inmates in the general prison population in celebration of the Ramadan Feast.
See id. at ¶¶ 68-70. Plaintiff claims that the religious feast provided to him in the SHU consisted
of rice, fish, mess hall cabbage, and mess hall beans, and did not include other foods, such as
lamb, bean pie, and chicken, which were provided to Muslims in the general population in
celebration of the Ramadan Feast. See id. at ¶ 70. In anticipation of the 2010 religious feast, and
after having been denied his sweet breakfast in 2009, Plaintiff wrote to Defendant LaValley on
September 22, 2010 concerning the matter, hoping to preemptively avoid a similar denial for that
year. See id. at ¶ 68 and Exhibit "48." On October 3, 2010, after not receiving his sweet
breakfast as requested, Plaintiff filed a grievance and sent letters to Defendants Fischer and
LaValley, complaining of the failure to provide him with the requested sweet breakfast. See id. at
¶ 70 and Exhibit "49."
Plaintiff commenced this action on November 23, 2010. See Dkt. No. 1. In his complaint,
Plaintiff asserts that his religious freedom rights under the RLUIPA and First Amendment were
infringed because of Defendants' interference with his ability to practice his chosen religion,
including through denial of a sweet breakfast and proper feast, the opportunity to observe Jumuah

Apparently, the cell searches, characterized by Plaintiff as excessive, revealed the
presence of contraband on August 14, 18, 27, and 28, 2008, September 4, and 19, 2008, and
November 18, 2008, as evidenced by the issuance of contraband receipts to Plaintiff. See Dkt.
No. 1 at ¶ 59.
1

The sweet breakfast that Plaintiff refers to generally consists of a banana, a donut, coffee
cake, soda, and other beverages. See Dkt. No. 1 at ¶ 70.
2

5

sermons, and the denial of a Kosher Diet. See id. Plaintiff further claims that he was unlawfully
retaliated against for voicing his complaints and that he was subjected to cruel and unusual
punishment. See id.

B.

Magistrate Judge Peebles' Report, Recommendation and Order
In his February 27, 2012 Report, Recommendation and Order, Magistrate Judge Peebles

recommended that the Court dismiss several Defendants and several of Plaintiff's claims. See
Dkt. No. 40. First, Magistrate Judge Peebles recommended that the Court grant Defendants'
motion as to Defendant Fischer for his lack of personal involvement, but deny the motion as to
Defendants Artus and LaValley on the same ground. See id. at 16-18. Second, Magistrate Judge
Peebles recommended that the Court find that Plaintiff failed to state a plausible First Amendment
and RLUIPA deprivation claim associated with the refusal of prison officials to provide him with
a Kosher Diet in lieu of the prescribed Controlled "A" High Fiber Diet. See id. at 20. Magistrate
Judge Peebles found that "Plaintiff does not appear to contend that his Controlled 'A' Diet does
not comport with his religious beliefs as a Muslim. Instead, he argues that the Cold Alternative
(Kosher) Diet would also be consistent with his religious beliefs, and should be made available to
him for health reasons." See id.
Third, Magistrate Judge Peebles found that Plaintiff was also asserting an Eighth
Amendment deliberate indifference claim by alleging that the Controlled "A" High Fiber Diet did
not meet his medical needs. See id. at 21-22. He recommended that the Court find that Plaintiff
failed to allege facts sufficient to establish either the objective or subjective element of this claim.
See id. at 23-27. Fourth, Magistrate Judge Peebles found that "Plaintiff's allegations regarding the
denial of religious meals on two isolated occasions are insufficient to meet his burden of
6

establishing [that] defendants' conduct infringes on his sincerely held religious beliefs under
either the First Amendment or the RLIUPA." See id. at 32 (citations omitted). Further, the
Report found that the fact that Plaintiff was not provided with the same Ramadan Feast meal as
inmates in the general population does not trigger the protections of the First Amendment or the
RLUIPA. See id. at 33. Magistrate Judge Peebles did, however, find that the portion of Plaintiff's
free exercise claim stemming from the alleged ongoing refusal of prison officials to broadcast
Jumuah sermons to his SHU cell "could be regarded as a sufficiently serious deprivation to state a
plausible free exercise claim." See id. at 33-34 (citations omitted).
Fifth, regarding Plaintiff's harassment claims against Defendants Hicks and Trudeau,
Magistrate Judge Peebles found that most of Plaintiff's allegations amount to nothing more than
taunting or threats, which are insufficient to support a cognizable section 1983 claim. See id. at
35-36. Further, the Report found that "the mere allegation that a false misbehavior report has
been issued to an inmate similarly does not implicate unconstitutional conduct." See id. at 36-37
(citations omitted). Sixth, Magistrate Judge Peebles recommended that the Court find that
Plaintiff's procedural due process claims against Defendant Lucia should be dismissed because
the disciplinary penalty as a result of the charges leveled against him was never imposed, Plaintiff
was not deprived of a cognizable liberty interest. See id. at 37-38.
Seventh, regarding Plaintiff's equal protection claim based on Defendants' refusal to
provide him with the requested Kosher Diet, Magistrate Judge Peebles found that this claim
should be dismissed because Plaintiff's "complaint lacks any factual allegations suggesting that
the failure to provide [him] with the requested Kosher Diet was based upon intentional or
purposeful discrimination directed at an identifiable suspect class." See id. at 39-40. Eighth, the

7

Report recommended that the Court find that it is premature to grant Defendants qualified
immunity at this juncture. See id. at 43.
Ninth, Magistrate Judge Peebles recommended that Plaintiff be given leave to amend with
respect to the claims for which dismissal was recommended. See id. at 44. And, finally,
Magistrate Judge Peebles denied Plaintiff's motion for leave to amend/join parties in light of his
failure to satisfy the requirements set forth in Local Rule 7.1(a)(4). See id. at 46. Specifically,
Magistrate Judge Peebles held that Plaintiff submitted a proposed pleading "which adds to, but
does not replace, his amended complaint[,]" and that "various of the allegations set forth in the
proposed amended complaint purport to alter factual allegations contained within plaintiff's initial
complaint." See id.

C.

Plaintiff's objections
On March 16, 2012, the Court received Plaintiff's objections to Magistrate Judge Peebles'

Report, Recommendation and Order. See Dkt. No. 41. In his objections, Plaintiff first argues that
Magistrate Judge Peebles erred in finding that the denial of a Kosher Diet did not violate his First
and Eighth Amendment rights or his rights under the RLUIPA. See id. at 7.3 Plaintiff claims that
the Report incorrectly provides that "'Plaintiff does not appear to contend that his Controlled "A"
Diet does not comport with his religious beliefs as a Muslim.'" See id. (quotation omitted).
Citing to the exhibits attached to his complaint, Plaintiff alleges that "'[e]ating the High Fiber Diet
as it is, is a substantial burden on me because this food is in violation of my religious belief, and
it's not producing the results I need to maintain my health.'" See id. (quoting Dkt. No. 1-1 at

To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
3

8

Exhibit "4"). Plaintiff claims that the large amounts of meat contained in the High Fiber Diet are
not processed in accordance with his religious beliefs, but meats contained in Kosher or Halal
(permissible) Muslim meals would be. See id. at 8.
Moreover, Plaintiff alleges that the fact that he remained on the High Fiber Diet for over
one year and that his colonoscopy still showed that he had "several internal hemorrhoids from his
constipation and irregularity is proof the High Fiber Diet was ineffective and inadequate." See id.
at 9. Plaintiff claims that the Court should focus not only on the "several internal hemorrhoids"
when determining if he has a serious medical need, but on the fact that the ineffective treatment,
causing these "perpetual" hemorrhoids, makes him more likely to get colon cancer in the future.
See id. at 10.
Next, Plaintiff claims that the RLUIPA and the First Amendment's Free Exercise Clause
provide that inmates must be given meals that conform to their religious beliefs. See id. at 11.
Plaintiff alleges that, by denying him the only religious meal options that met his dietary needs as
well as his religious beliefs violated his rights. See id. at 11-12. Finally, Plaintiff asks that the
Court reserve decision on Magistrate Judge Peebles' Report, Recommendation and Order "until it
can be accessed with the facts contained in the amended and supplemental complaint as a whole."
See id. at 12-14.

III. DISCUSSION
A.

Standard of review
When a party files specific objections to a magistrate judge's report-recommendation, the

district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
9

when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
In a rule 12(b)(6) motion to dismiss, the court must accept as true all of the factual
allegations in the complaint, which is deemed to include any written instrument attached to the
complaint as an exhibit, any materials incorporated into it by reference, and any other documents
that are integral to it. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citations omitted).
Moreover, the court must draw all reasonable inferences from those factual allegations in the
plaintiff's favor. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (quotation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to it nor incorporated by reference into the pleading. See Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)). Dismissal will only be granted by the court if it "appears
beyond doubt that plaintiff can prove no set of facts in support of the claim which would entitle
him to relief." Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996).
So read, the complaint must include "enough facts to state a claim to relief that is plausible
on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim to relief is plausible
on its face "when the [P]laintiff pleads fact[s] . . . that allow[] the court to draw the reasonable

10

inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __,
129 S. Ct. 1937, 1949 (2009) (citation omitted).
When a dismissal is sought against a pro se litigant, the court will afford the non-movant
special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(quotation and citations omitted). The submissions of a pro se litigant are to be construed
liberally and interpreted "to raise the strongest arguments that they suggest." Id. at 475 (internal
quotation and citations omitted).

B.

Plaintiff's First Amendment and RLUIPA claims
The First Amendment to the United States Constitution guarantees the right to free

exercise of religion. See U.S. Const. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). As
is true with regard to the First Amendment generally, the free exercise clause applies to prison
inmates, subject to appropriate limiting factors. See Ford v. McGinnis, 352 F.3d 582, 588 (2d
Cir. 2003) (holding that "[p]risoners have long been understood to retain some measure of the
constitutional protection afforded by the First Amendment's Free Exercise Clause" (citing Pell v.
Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974)). Thus, for example, under accepted
free exercise jurisprudence, inmates are guaranteed the right to participate in congregate religious
services under most circumstances. See, e.g., Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir.
1993) (citing cases).
The right of prison inmates to exercise their religious beliefs, however, is not absolute or
unbridled, but instead is subject to valid penological concerns, including those relating to
institutional security. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Salahuddin,
993 F.2d at 308. For example, a determination of whether an inmate's constitutional rights have
11

been infringed by the refusal to permit his attendance at a religious service hinges upon the
balancing of the inmate's First Amendment free exercise right against the institutional needs of
officials tasked with the increasingly daunting task of operating prison facilities. This
determination is "one of reasonableness, taking into account whether the particular [act] affecting
[the] constitutional right . . . is 'reasonably related to legitimate penological interests.'" Benjamin
v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.
Ct. 2254, 2261 (1987)).
Undeniably, the reach of the First Amendment's free exercise clause extends beyond mere
attendance at congregate religious services to other aspects of prison life including, pertinently,
that of an inmate's diet and participation in religious meals. See McEachin v. McGuinnis, 357
F.3d 197, 204–05 (2d Cir. 2004); Ford, 352 F.3d at 597. Ordinarily, the Eighth Amendment
establishes as a constitutional minimum the requirement that inmates be provided with
nutritionally adequate meals; provided this threshold is met, prison officials otherwise retain
considerable discretion in determining dietary constituents. See Word v. Croce, 169 F. Supp. 2d
219, 226 (S.D.N.Y. 2001). This requirement, however, is on occasion narrowed by the First
Amendment's free exercise clause, which is broad enough to include an inmate's "clearly
established" right "to a diet consistent with his or her religious scruples." Ford, 352 F.3d at 597;
see also Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir. 1992). "Courts have generally found that to
deny prison inmates the provision of food that satisfies the dictates of their faith does
unconstitutionally burden their free exercise rights." McEachin, 357 F.3d at 203.
In the present matter, Plaintiff sent a letter to Defendant Friedmann requesting that he be
placed on the Cold Alternative Diet. See Dkt. No. 1-1 at 27. Defendant Friedmann responded
that, because he is Muslim, he is not eligible for the Cold Alternative Diet. See id. at 28.
12

Defendant Friedmann, however, informed Plaintiff that the Religious Alternative Meal ("RAM")
meets "Biblical kosher standards," and, therefore, "meets Moslem dietary requirements." See id.
Defendant Friedmann went on to explain to Plaintiff that the RAM diet is served in the Mess Hall
and that, if he is keeplocked, Plaintiff can "obtain it by requesting the form from your Block CO."
See id. Despite being presented with this option which would have satisfied Plaintiff's religious
dietary requirements, Plaintiff declined the option.
"Courts have consistently held that DOCCS' Religious Alternative Meal is sufficient to
sustain Muslim prisoners' good health without violating dietary laws and that a strictly Halal diet
is not required." DeBlasio v. Rock, No. 9:09-CV-1077, 2011 WL 4478515, *20 (N.D.N.Y. Sept.
26, 2011) (citing Muhammad, 98 F. Supp. 2d at 343-44 (collecting cases)). Even assuming that
some parts of Plaintiff's High Fiber Diet did not comport with his religious beliefs,4 as he claims
in his objections, Plaintiff was offered a diet that meets his religious dietary requirements, but
declined the offer. As such, Plaintiff has failed to state a plausible First Amendment and
RLUIPA deprivation claim associated with the refusal of prison officials to provide him with a
Kosher Diet in lieu of the prescribed Controlled "A" High Fiber Diet.
Moreover, Magistrate Judge Peebles correctly found that Plaintiff's allegations regarding
the denial of religious meals – i.e., sweet breakfast – on two isolated occasions and his contention
that his Ramadan Feast menu was not identical to the menu offered to non-SHU inmates are
insufficient to state a plausible claim that Defendants' conduct infringed on his sincerely held
religious beliefs under either the First Amendment or the RLUIPA. See Deblasio, 2011 WL

The Court notes that Plaintiff's complaint does not state that the Controlled "A" High
Fiber diet does not comport with his religious dietary needs. Plaintiff does, however, make this
claim in the complaint letter he sent to Defendant Friedmann, which he attached as an exhibit to
his complaint. See Dkt. No. 1-1 at 28.
4

13

4478515, at *18. Significantly, Plaintiff does not claim that his Ramadan Feast menu was
inconsistent with his religious beliefs, just that it was different than that which was offered to
inmates in the general population. This claim clearly falls far short of establishing a First
Amendment or RLUIPA violation.
The portion of Plaintiff's religious exercise claim growing out of the alleged ongoing
refusal of prison officials to broadcast Jumuah sermons to his SHU cell, however, does plausibly
allege a sufficiently serious deprivation to state a free exercise claim. See, e.g., Crawford v.
Clarke, 578 F.3d 39, 43-44 (1st Cir. 2009).5 As such, the Court finds that Magistrate Judge
Peebles correctly recommended that the Court should deny Defendants' motion as to this claim as
to Defendants Fadl, Artus and LaValley.

C.

Eighth Amendment claims
Plaintiff's claims relating to his meals are also asserted under the Eighth Amendment. The

Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S.
Const. amend. VIII. This prohibition includes any "unnecessary and wanton infliction of pain" on
those who have been convicted of crimes. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)
(citations omitted). Nevertheless, the United States Supreme Court has recognized that not "every
injury" a prisoner suffers "translates into constitutional liability for prison officials." Farmer v.
Brennan, 511 U.S. 825, 834 (1994).

The Court notes that, although Plaintiff has alleged a plausible free exercise claim, courts
in the Second Circuit have granted motions for summary judgment as to similar claims,
considering the burden placed on the prison officials in accommodating SHU inmates, the ability
of SHU inmates to get counseling from a member of the ministerial staff on a weekly basis, and
the prison's legitimate-penological interest in denying these requests. See, e.g., Smith v. Artus,
No. 9:07-CV-1150, 2010 WL 3910086, *22-*23 (N.D.N.Y. Sept. 30, 2010).
5

14

Prisons are required under the Eighth Amendment to provide for the basic human needs of
those incarcerated, including "nutritionally adequate food that is prepared and served under
conditions which do not present an immediate danger to the health and well being of the inmates
who consume it." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (per curium) (citation and
internal quotation marks omitted). The deprivation must be sufficient to create a serious danger
to the health of the inmate. See, e.g., Beckford v. Portuondo, 151 F. Supp. 2d 204, 213 (N.D.N.Y.
2001) (finding a deprivation of two of three meals per day for eight days created an issue of
material fact sufficient for Eighth Amendment claim to survive summary judgment); Moss v.
Ward, 450 F. Supp. 591, 596-597 (W.D.N.Y. 1978) (finding the denial of food for four
consecutive days and reduced food for three days thereafter sufficient to violate prisoner's Eighth
Amendment rights). Where a particular diet is medically required, denial of a smaller number of
meals may be sufficient in some circumstances. See Abdush-Shahid v. Coughlin, 933 F. Supp.
168, 180 (N.D.N.Y. 1996) (citing Robles, 725 F.2d at 15-16).
In the present matter, Plaintiff's Controlled "A" High Fiber Diet was prescribed for him by
the medical personnel at Clinton. Although Plaintiff's complaint alleges that he suffers from
constipation and internal hemorrhoids, the medical records demonstrate that he received constant
medical attention for those conditions. See Dkt. No. 1-1 at Exhibit "1." Magistrate Judge Peebles
correctly concluded that the complaint does not allege facts from which one could conclude that
his medical conditions are sufficiently serious to meet the objective requirements of an Eighth
Amendment claim. See Lowman v. Perlman, No. 9:06-CV-422, 2008 WL 4104554, *5
(N.D.N.Y. Aug. 29, 2008); Cabassa v. Gummerson, No. 01-CV-1039, 2006 WL 1559215, *9-*10
(N.D.N.Y. Mar. 30, 2006); Kendall, 2004 WL 1752818, at *6.

15

Further, even assuming that Plaintiff has met the objective element, Plaintiff has failed to
allege facts suggesting a plausible claim that any Defendants were subjectively indifferent to his
serious medical needs. Although Plaintiff complains that the Controlled "A" High Fiber Diet
does not meet his needs because of the lack of peanut butter and the reduction of bread from
twelve slices to eight, as well as the lack of desserts, Plaintiff does not point to any adverse
impact upon his health other than to allege, in conclusory terms, that his condition requires that he
be provided with food with a higher fiber content than what he receives under the Controlled "A"
High Fiber Diet. Defendant Johnson, however, responded to Plaintiff's requests by stating that he
already receives a diet high in fiber, which is further supplemented by Metamucil and, therefore,
that Plaintiff did not require additional fiber for his medical condition. See Taylor v. Chalom, No.
9:10-CV-1494, 2011 WL 6942891, *8 (N.D.N.Y. Dec. 13, 2011) (holding that when a plaintiff
alleges nothing more than a mere disagreement with the treatment he received, the plaintiff has
failed to satisfy the subjective element of the deliberate indifference test) (citations omitted).
Based on the foregoing, the Court finds that Magistrate Judge Peebles corrected
recommended that the Court should grant Defendants' motion as to Plaintiff's Eighth Amendment
claims. At best, Plaintiff alleges malpractice against Defendants, which is insufficient to support
an Eighth Amendment violation.

D.

Plaintiff's remaining claims
In addition to the claims discussed above, Plaintiff also asserted harassment claims against

Defendants Hicks and Trudeau, a due process claim against Defendant Lucia, and an equal
protection claim based upon Defendants' refusal to provide him with the requested Kosher Diet.
Magistrate Judge Peebles recommended that the Court dismiss each of these claims and Plaintiff
16

did not object to his recommendation. Having reviewed these causes of action and Magistrate
Judge Peebles' Report, Recommendation and Order, the Court finds that Magistrate Judge
Peebles' correctly determined that Plaintiff failed to allege facts that plausibly state these causes
of action.

E.

Amendment of the Complaint
Following Defendants' motion to dismiss, Plaintiff moved for leave to amend his

complaint and to join two additional parties. See Dkt. No. 36. In his motion, Plaintiff seeks to
add Corrections Captain Facteau and Sergeant Delutis as new defendants, and to assert additional
claims, including a retaliation claim based upon events not recounted in his initial complaint, and
several of which he claims have occurred since the commencement of this action. See id.
Magistrate Judge Peebles denied Plaintiff's motion for leave to amend because of his
failure to comply with Local Rule 7.1(a)(4). See Dkt. No. 40 at 46. Specifically, Magistrate
Judge Peebles found that Plaintiff's proposed amended pleading simply adds to, but does not
replace his amended complaint and that Plaintiff's proposed amended complaint alters factual
allegations contained within his initial complaint. See id. As such, Magistrate Judge Peebles
recommended that the Court deny Plaintiff's motion to amend and/or supplement his complaint,
and to join additional parties, without prejudice to renewal upon filing a pleading in conformity
with the Local Rules. See id. at 47.
On the same day that Plaintiff filed his objections to Magistrate Judge Peebles' Report,
Recommendation and Order, Plaintiff renewed his motion for leave to file an amended and
supplemental verified complaint and to add additional defendants. See Dkt. No. 42. Despite
Magistrate Judge Peebles' instruction regarding the requirements for filing an amended complaint,
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Plaintiff again fails to abide by the Local Rules. The renewed proposed amended pleading is
nearly identical to the proposed amended pleading that Magistrate Judge Peebles found was not in
conformity with the Local Rules. Compare Dkt. No. 36-2; with Dkt. No. 42-2. Plaintiff's
renewed proposed amended pleading again fails to supersede the original pleading in all respects,
and incorporates his original pleading. See Dkt. No. 42-2. Plaintiff's renewed proposed amended
pleading begins at paragraph eighty ("80") – where the original complaint ends – and asks the
Court to change facts contained in the original complaint. See id. at ¶¶ 82-82.
A motion to amend a pleading is governed by Rule 15(a) of the Federal Rules of Civil
Procedure, which states that "[t]he court should freely give leave [to amend] when justice so
requires." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). The Local Rules of
the Northern District of New York provide, in pertinent part, that amended pleadings must be
complete pleadings which will supersede the original in all respects. See N.D.N.Y. L.R.
7.1(a)(4). The Local Rules further state that a "party shall not incorporate any portion of its prior
pleading into the proposed amended pleading by reference." Id. One of the purposes of the
requirement that an amended complaint be itself a complete pleading, is to ensure that all of the
allegations asserted against the defendant(s) are contained in a single document, thereby reducing
the likelihood that a party will overlook one or more allegations against him. Moreover, this
requirement eliminates the confusing nature of "piecemeal" amended complaints. See
Chapdelaine v. Keller, No. 9:95-CV-1126, 1999 WL 34998130, *1 (N.D.N.Y. Sept. 28, 1999)
(citation omitted).
Based on the foregoing, the Court finds that Plaintiff's renewed proposed amended
pleading is not a proper pleading because it is not a complete pleading which completely
replaces his original complaint, as required by the Local Rules. As such, the Court denies
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Plaintiff's motion to amend and/or supplement his complaint without prejudice to renewal upon
filing a complaint that is in conformity with the Local Rules.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions,
Magistrate Judge Peebles' Report, Recommendation and Order and the applicable law, and for the
above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Peebles' February 27, 2012 Report, Recommendation and
Order is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss is GRANTED in part and DENIED in
part; and the Court further
ORDERS that Plaintiff's motion to amend and/or supplement his complaint is DENIED
without prejudice to renewal; and the Court further
ORDERS that all further pretrial matters are referred to Magistrate Judge Peebles; and the
Court further
ORDERS that the Clerk of the Court shall serve this Memorandum-Decision and Order
on all parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: March 26, 2012
Albany, New York

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