Walker v. Fischer et al

Filing 72

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Peebles' September 27, 2013 Report and Recommendation is ADOPTED in its entirety. ORDERED, that Defendants' motion for summary judgment (Dkt. No. 57 ) is GRANTED. ORDERED, that the Clerk of the Court shall enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 2/21/14. (served on plaintiff by regular mail) (alh, )

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

9:10-CV-1431
(MAD/DEP)

DALE ARTUS, Superintendent,
Clinton Correctional Facility; et al.,
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

ADELE M. TAYLOR-SCOTT, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff pro se Tyrone Walker, an inmate currently in the custody of the New York State
Department of Corrections and Community Supervision ("DOCCS"), commenced this action
pursuant to 42 U.S.C. § 1983 alleging that Defendants deprived him of his civil rights in
violation of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42
U.S.C. § 2000cc-1(a), and the Free Exercise Clause of the First Amendment to the United Stated

Constitution. See Dkt. No. 1. On January 18, 2013, Defendants filed a motion for summary
judgment. See Dkt. No. 57-8.
Currently before the Court are Plaintiff's objections to Magistrate Judge Peebles' Report
and Recommendation, in which he recommended that Defendants' motion for summary
judgment be granted and that this case be dismissed. See Dkt. No. 64 at 2.

II. BACKGROUND1
Plaintiff is a prison inmate entrusted to the care and custody of the New York State
DOCCS. See Dkt. No. 1 at ¶ 1. At all times relevant to this action, he was confined in a Special
Housing Unit ("SHU") at Clinton Correctional Facility ("Clinton C.F."), which is located in
Dannemora, New York.2 See id.
Plaintiff is one of over 300 Muslim inmates at Clinton C.F. See Dkt. No. 63-2 at 31.
Jumu'ah is an hour-long Muslim congregate service held on Fridays, and includes aspects of
sermon and prayer. See id. at 65, 67. Jumu'ah services are provided for Muslim inmates
confined at Clinton C.F. on Fridays between 1:00 and 2:00 p.m. See id. at 67. According to
Imam Assallami Fadle, the Muslim Chaplin assigned to Clinton C.F., although Muslim men are
expected to attend Jumu'ah services if they are able to do so, "[i]t is not mandatory for women, or
for men who are sick, or for men who are not free to attend service." See id. at 54, 66.

The Court has adopted Magistrate Judge Peebles' recitation of the relevant factual
background, to the extent that it is supported by the record and not objected to by the parties.
1

In New York, SHU cells are utilized for segregating prisoners from general population
areas for various reasons including, predominantly, disciplinary purposes. Lee v. Coughlin, 26 F.
Supp. 2d 615, 618 (S.D.N.Y. 1998) (citing 7 N.Y.C.R.R. pts. 253, 254, and 301).
2

2

Pursuant to DOCCS Directive 4933, inmates confined in a SHU cell are prohibited from
participating in congregate religious services. 7 N.Y.C.R.R. § 304.9(d). Joseph F. Bellnier, the
DOCCS Deputy Commissioner for Correctional Facilities, states that "the possibility of
disruption to the smooth operation of the facility is increased" any time inmates congregate.3 See
Dkt. No. 57-4 at ¶ 6. For that reason, "SHU inmates do not attend congregate religious services.
Instead, religious counseling by a member of the facility's ministerial services staff [is] provided
upon the written request of an inmate, and the facility senior chaplain or a designated member of
the ministerial services staff is required to make a minimum of one round per week in the SHU."4
Id. at ¶ 12 (citing 7 N.Y.C.R.R. § 304.9). Muslim SHU inmates are also allowed to retain
possession of a Quran, Kufi, and a prayer rug; they are permitted to pray demonstratively within
their cells; they are permitted to order religious periodicals unless they are prohibited for security
purposes; and they are provided an alternative diet in conformity with their religious dietary
restrictions, and with accommodations made during feast and fast days. See Dkt. No. 57-4 at ¶
24; see also Dkt. No. 57-5 at ¶¶ 9-11. Those religious accommodations are designed to provide
an "alternative means for Muslim inmates confined to SHU to practice their religion without
undue risk to the safety, security and the good working order of correctional facilities[.]" See
Dkt. No. 57-4 at ¶ 25.
Because of the prohibition against congregation for SHU inmates, Plaintiff requested
permission to participate in Jumu'ah by way of closed circuit television from the secured area in
Plaintiff does not challenge the constitutionality of section 304.9(d) in this action.
Instead, he only challenges Defendants' denial of his requests to view or listen to Jumu'ah services
through video or audio feed into his SHU cell.
3

Plaintiff alleges that Defendant Assallami does not, in fact, visit Clinton C.F.'s SHU on a
weekly basis, nor does a substitute Imam visit when Defendant Assallami is unavailable. See
Dkt. No. 71 at 11.
4

3

the back of his SHU cell. See Dkt. No. 1 at 9–10; see also Dkt. No. 57-2 at 82. Notwithstanding
the fact that SHU inmates currently do not have access to any television of any sort, Plaintiff
proposes that monitors could be installed in each cell's Sally port because they are already
equipped with wiring for camera/video surveillance. See Dkt. No. 57-2 at 82–85. More
specifically, Plaintiff requests that Muslim inmates in the SHU who have not received a
misbehavior report within the prior thirty days be allowed to go into the Sally port to participate
in Jumu'ah via closed circuit television. Id. at 85.
In the alternative, Plaintiff requests that Jumu'ah services be broadcast through the audio
headphone jack in his SHU cell. See Dkt. No. 1 at 10; see Dkt. No. 57-2 at 87. The broadcast
could either be a live feed or pre-recorded. See Dkt. No. 57-2 at 95. According to Plaintiff, by
listening to Jumu'ah services on headphones, he could actively participate in the services while
still complying with DOCCS' ban on congregating. See Dkt. No. 63-2 at 65.
In an effort to gain the opportunity to participate in Jumu'ah services by way of closed
circuit television or audio feed, Plaintiff filed grievances at Clinton C.F. on October 21, 2008,
July 1, 2010, and September 21, 2010; sent a complaint letter on July 28, 2008 to Defendant
Dale Artus, the superintendent at Clinton C.F. at that time; forwarded a written complaint to
DOCCS Commissioner Brian Fischer on August 24, 2008; sent three letters, dated February 10,
2009, February 23, 2009, and March 2, 2009, to Defendant Assallami; and lodged a complaint,
dated September 21, 2010, with Defendant Thomas LaValley, the current superintendent at
Clinton C.F. See Dkt. No. 1 at 9–10; Complaint Exhs. 16–22 (Dkt. Nos. 1-2, 1-3). Defendant
Artus has no personal recollection of having addressed Plaintiff's requests. See Dkt. No. 57-3 at
2. The record nonetheless demonstrates that he delegated a number of Plaintiff's complaints to
staff for investigation, and denied Plaintiff's grievance dated July 1, 2010, in light of the absence
4

of a DOCCS Directive providing for closed circuit television for religious services. See id. at 2,
111. On appeal from the superintendent's ruling, DOCCS Central Office Review Committee
upheld the denial, finding that Plaintiff had "not presented any compelling reasons to place
CCTV in his cell to watch Muslim services." As it relates to Defendant LaValley, he has no
personal recollection of receiving or responding to Plaintiff's letter dated September 21, 2010.
See Dkt. No. 57-5 at ¶ 4. Defendant Assallami acknowledges that he spoke with Defendant
Artus regarding Plaintiff's request to participate in Jumu'ah services by way of closed circuit
television, but was informed that it "was not a decision the Superintendent was authorized to
make." See Dkt. No. 63-2 at 61; see also Dkt. No. 63-2 at 54.
Defendants have submitted evidence explaining the necessary steps DOCCS would have
to take to meet Plaintiff's requests for accommodations. Thomas McQuade, a Facilities Planning
Specialist employed by DOCCS, explains that each SHU cell is equipped with three wall jacks,
all of which are audio-only capable, and not currently capable of carrying a video feed. See Dkt.
No. 57-6 at ¶ 6. Therefore, to accommodate Plaintiff's request that all Jumu'ah services be
broadcast over closed circuit television in SHU cells, DOCCS would be required to install the
necessary video wiring, as well as televisions. More specifically, as McQuade explains in his
declaration,
[t]o do this properly, the existing wiring would need to be
modified with a type of cable for in-cell television. Conduit will
need to be run to provide the extra jack as well as power to each
cell. SHU cells are not normally provided user connectable
power outlets due to security concerns. New control equipment
would also be required, as well as the inmate would need to
purchase an approved television from the facility. To accomplish
this, the [DOCCS] would need to issue a [New York State Office
of General Services] project for each facility through its capital
construction program to perform the necessary work. Design fees
5

and construction costs could be several hundred thousand dollars
or greater at a facility depending on the size of the SHU.
Id. at ¶ 9.
Regarding Plaintiff's request to permit Muslim SHU inmates to listen to Jumu'ah services
through an audio feed, the existing wiring in the SHU does not allow an independent signal to be
sent to a particular cell. See id. at ¶ 6. Accordingly, in the event DOCCS satisfied this request,
the same religious programming that Plaintiff, as a Muslim, would receive in his cell, would also
be provided to all of the other SHU inmates, regardless of their religious beliefs. See id.
Moreover, according to McQuade, the audio option is not feasible because DOCCS would be
forced to install the equipment in all of the SHUs throughout its facilities, of which there are
forty-eight, in an effort to maintain consistency, which is important to maintaining the security
and order of facilities. See id. at ¶¶ 7-8; see also Dkt. No. 57-4 at ¶ 18 ("Providing benefits to
one group of inmates can lead to manipulative behaviors which place a substantial strain on
staffing and other resources"). McQuade explains that "[e]ach [of the forty-eight] facilit[ies]
would need to provide wiring equipment to extend from the place of worship an audio signal to
the existing radio distribution rack for the SHU. Staff would be required to set up the equipment
for the service, as well as operate the program selection to send the audio over one of the three
channels." See Dkt. No. 57-6 at ¶ 8. According to McQuade, "[u]nder current financial
restraints, [where] there is reduced budget for new infrastructure projects[,] . . . DOCCS does not
currently have the means to accommodate Plaintiff's request, or the monetary resources to divert
to the type of investment it would take to do so." Id. at ¶¶ 4, 10; see also Dkt. No. 57-4 at ¶¶ 1820, 25.

6

In addition to the financial concerns, there are a number of safety concerns associated
with re-wiring the SHU cells to make them capable of permitting SHU inmates to view Jumu'ah
services through closed circuit television or listening through an audio feed. For example,
because of the behavioral concerns that lead to the placement of inmates in SHU, any video
displays or wiring would need to be secured and resistant to tampering to prevent any
components from being fashioned into weapons or escape paraphernalia. See Dkt. No. 57-4 at ¶
15.

A.

Magistrate Judge Peebles' Report and Recommendation
In their motion for summary judgment, Defendants presented the following arguments:

(1) Defendants did not have sufficient authority or personal involvement to support a claim for
damages; (2) there are compelling penological justifications for denying Plaintiff access to
congregate religious services; (3) the current policy is the least restrictive means of achieving the
State's compelling interests; and (4) Defendants are entitled to qualified immunity. See Dkt. No.
57-8 at 10–21. In a September 27, 2013 Report and Recommendation, Magistrate Judge Peebles
recommended that the Court grant Defendants' motion for summary judgment and dismiss
Plaintiff's complaint. See Dkt. No. 64 at 28.

B.

Plaintiff's Objections
In his objections to Magistrate Judge Peebles' recommendations, Plaintiff first argues that

Magistrate Judge Peebles erred in finding that Defendants' current policy is the least restrictive
means of meeting the State's compelling penological goals. See Dkt. No. 71 at 8–9.
Specifically, Plaintiff argues that using the least restrictive means require allowing him to
7

participate in Jumu'ah services by listening to the services on a portable audio device (such as a
walkman) while in the Sally port behind his cell. See id. at 8. Plaintiff claims that Magistrate
Judge Peebles failed to properly address this alternative possibility that would allow Plaintiff to
participate in Jumu'ah services. See id. at 9.
Next, Plaintiff argues that Magistrate Judge Peebles erred in finding Plaintiff had an
alternative means of exercising his allegedly burdened right. See id. at 10–11. Magistrate Judge
Peebles found that there was record evidence demonstrating the numerous accommodations that
Muslim inmates at Clinton C.F. receive in order to practice their religion. This includes Muslim
inmates being permitted to "(1) maintain a copy of the Quran, a prayer rug, and a Kufi in their
cells; (2) engage in demonstrative prayer in their cells; (3) request alternative meals that satisfy
Muslim dietary requirements; (4) eat special meals during Islamic feast days; (5) eat meals after
sunset during Islamic feast days; and (6) order religious periodicals, provided they are not [on] a
prohibited list for security purposes" under DOCCS Directive 4202. See Dkt. No. 64 at 23. The
Magistrate Judge also noted that "DOCCS Directive 4933 permits Muslim SHU inmates to meet,
one-on-one, with an Imam or religious adviser of their registered religion." Id. Plaintiff does not
dispute that any of these accommodations have been available to him with the exception of a
weekly, one-on-one meeting with an Imam or religious adviser. See Dkt. No. 71 at 10–12.
Plaintiff claims that Defendant Assallami does not make weekly visits to the SHU, and in
contrast to Defendant Assallami's statements, another Imam does not make visits when
Defendant Assallami is unavailable. See id. at 11. To support this allegation, Plaintiff submitted
the SHU log book as Exhibit # 5 in opposition to Defendants' motion for summary judgment.
See Dkt. No. 63-2 at 73–89. While the log book shows Defendant Assallami entering the SHU
less than twenty times between January 5, 2011 and December 2, 2011, Magistrate Judge
8

Peebles noted that Plaintiff did not provide a full copy of the log as there were a number of large
gaps in dates in the exhibit provided. See Dkt. No. 64 at 4–5. Magistrate Judge Peebles also
cited Defendant Assallami's statement that another Imam would visit the SHU in place of
Defendant Assallami when he was on vacation. See id. at 5. Plaintiff claims that there are gaps
in the copy of the log book that he provided because he left out over 300 pages that did not show
Defendant Assallami entering the SHU for the reasons of cost and convenience. See Dkt. No. 71
at 14. Plaintiff also claims that, contrary to Defendant Assallami's contentions, another Imam
has not visited the SHU when Defendant Assallami is unavailable. See id.

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, when a party files "[g]eneral or conclusory objections or objections which merely
recite the same argument [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) (citation and footnote omitted). After the appropriate review, "the
court may accept, reject, or modify, in whole or in part, the findings or recommendation made by
the magistrate judge." 28 U.S.C. § 636(b)(1).
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no issue warrant
judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d
9

29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36–37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c) (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2502, 2513–14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where
the non-movant either does not respond to the motion or fails to dispute the movant's statement
of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather,
the court must be satisfied that the citations to evidence in the record support the movant's
assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not
verifying in the record the assertions in the motion for summary judgment "would derogate the
truth-finding functions of the judicial process by substituting convenience for facts").
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated
to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal
rights merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). This does not mean,
however, that a pro se litigant is excused from following the procedural requirements of
10

summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL
527484, at *81 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's 'bald assertion,'
completely unsupported by evidence is not sufficient to overcome a motion for summary
judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi,
923 F. 2d 18, 21 (2d Cir. 1991)).

B.

First Amendment Claim
Plaintiff claims that Magistrate Judge Peebles erred in finding that Defendants' decision

to deny Plaintiff access to congregate religious services was reasonable. See Dkt. No. 71 at 11.
Specifically, Plaintiff argues that Magistrate Judge Peebles erred in finding that Defendants have
a legitimate penological interest and that Plaintiff has an alternative means of practicing his
religion. See id. at 24. Plaintiff's main contentions are that Magistrate Judge Peebles failed to
properly address (1) evidence that Defendant Assallami or a substitute Imam does not visit the
SHU weekly; and (2) Plaintiff's request to listen to tape recordings of Jumu'ah services in the
Sally port behind his cell. See id. at 8–12.
The United State Supreme Court has held "that a prison inmate retains those First
Amendment Rights that are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974).
Included in this First Amendment protection is the right to participate in congregate religious
services. See Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). However, this right to
participate in congregate religious services is not absolute. Id. Alleged infringements of an
inmate's free exercise rights are judged by whether the restriction on the inmate's rights is
"reasonable." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Ford v. McGinnis, 352
11

F.3d 582, 588 (2d Cir. 2003); Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990). This
reasonableness test is "'less restrictive than that ordinarily applied.'" Salahuddin v. Goord, 467
F.3d 263, 274 (2d Cir. 2006) (quoting O'Lone, 482 U.S. at 348).
A prisoner bringing a free exercise claim has the initial burden of establishing "that the
disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin, 467
F.3d at 275–75. The burden then shifts to the defendants to identify legitimate penological
interests which justify the restriction of the plaintiff's free exercise rights. Salahuddin, 467 F.3d
at 275. The burden on the defendants in this situation is "relatively limited" and the burden
remains on the plaintiff to establish that the identified penological interests are irrational or
illegitimate. Id.; Ford, 352 F.3d at 595.
The court must then determine if the challenged regulation or decision is reasonable
based on four factors laid out by the United States Supreme Court in Turner v. Safley, 482 U.S.
78, 90–91 (1987). See Salahuddin, 467 F.3d at 274 (citation omitted). The four factors are:
[W]hether the challenged regulation or official action has a valid,
rational connection to a legitimate governmental objective;
whether prisoners have alternative means of exercising the
burdened right; the impact on guards, inmates, and prison
resources of accommodating the right; and the existence of
alternative means of facilitating exercise of the right that have
only a de minimis adverse effect on valid penological interests.
Salahuddin, 467 F.3d at 274 (citation and footnote omitted).
As Defendants are not challenging the sincerity of Plaintiff's beliefs, the Court will begin
its analysis by considering whether Defendants have satisfied their burden of identifying
legitimate penological interests in denying Plaintiff's requests to participate in Jumu'ah services
by video or audio means. See Dkt. No. 57-8 at 15. In his report and recommendation,
Magistrate Judge Peebles found that the record supported Defendants' arguments that allowing
12

Plaintiff and others in the SHU to participate in Jumu'ah services by audio or video feed would
require enhanced security measures required by DOCCS directives, would raise concerns that
inmates participating in the congregate service could "convey covert messages" to SHU inmates,
and would require that the equipment be installed to be tamper-proof so that the inmates would
be unable to create weapons from it. See Dkt. No. 64 at 20–21; see also Dkt. No. 57-4 at ¶¶ 811, 15, 18-23. Magistrate Judge Peebles also found there would be substantial costs involved in
granting Plaintiff's requests as DOCCS would be required to accommodate similar requests from
inmates housed in all forty-eight SHUs across New York State. See Dkt. No. 64 at 21; see also
Dkt. No. 57-4 at ¶¶ 18-20; Dkt. No. 57-6 at ¶¶ 6-10. The evidence also demonstrated that,
because the cells would need to be rewired and new equipment would be needed, "[f]ees and
construction costs could be several hundred thousand dollars or greater . . ." See Dkt. No. 57-6
at ¶ 9.
In Plaintiff's objection to the Report and Recommendation, Plaintiff appears to abandon
his argument to participate in Jumu'ah services by closed circuit television or by radio
transmission through the wall jacks in his cell. See Dkt. No. 71 at 16. Plaintiff instead objects to
Magistrate Judge Peebles' decision not to address the alternative suggested during Plaintiff's
deposition, that Plaintiff be allowed to participate in Jumu'ah services by listening to the service
on a tape recorder in the Sally port behind his cell, asserting that this will alleviate all legitimate
penological concerns. See Dkt. No. 71 at 8–10. Contrary to Plaintiff's argument, Magistrate
Judge Peebles correctly declined to address this proposed alternative. Plaintiff never alleged that
Defendants' failure to allow him to participate in Jumu'ah services by way of a tape recorder with
pre-recorded services was in violation of his rights. Plaintiff specifically stated in his complaint
that Defendants violated the his free exercise rights as well as RLUIPA by "depriving Plaintiff
13

the opportunity to listen to Jumuah Services on the headphone jack or view it on a closed circuit
TV. . . ." See Dkt. No. 1 at 20. There is no mention of the possibility of the alternative Plaintiff
is now suggesting. It is well established that "a plaintiff may not use a memorandum of law or
similar paper to assert a claim that is not contained in the complaint." Ribis v. Mike Barnard
Chevrolet-Cadillac, Inc., 468 F. Supp. 2d 489, 495 (W.D.N.Y. 2007) (citing cases).
Plaintiff's claim that the alternative was suggested by the attorney for Defendants is of
no consequence, as he is bringing it before the Court for the first time in his objections to the
Report and Recommendation. Furthermore, as Magistrate Judge Peebles correctly states, there is
no evidence to suggest that Plaintiff has exhausted his administrative remedies as there is
nothing showing that Plaintiff ever formally requested to participate in Jumu'ah services by
listening to pre-recorded tapes or that Defendants ever denied such requests. See Dkt. No. 64 at
22 n.11.
Further, Magistrate Judge Peebles correctly determined that Plaintiff has an adequate
means to exercise his burdened right as DOCCS Directive 4202 establishes several
accommodations Muslim SHU inmates receive for their religious beliefs and that the denial of
participation in congregate religious services is only one of many traditions that is denied while
an inmate is confined in the SHU. See Dkt. No. 64 at 22-23; see also O'Lone, 482 U.S. at
351–52; Vega v. Lantz, No. 04–CV–1215, 2009 WL 3157586, *6–*7 (D. Conn. Sept. 25, 2009).
Plaintiff argues in his objections to the Report and Recommendation that this
determination was error because Defendant Assallami has not visited the SHU a minimum of
once a week as required by 7 N.Y.C.R.R. § 304.9. See Dkt. No. 71 at 10–11. In support of this
allegation, Plaintiff provided a copy of portions of the SHU log book, which, according to
Defendant Assallami, is the official record of SHU visits. See Dkt. No. 63-2 at 70. While the log
14

book entries provided show that Defendant Assallami visited the SHU less than 20 times during
2011, Magistrate Judge Peebles correctly points out that there are large gaps in the dates of the
log book provided by Plaintiff. See id. at 73–89; see also Dkt. No. 64 at 4–5. Due to the missing
dates in the log book, there is insufficient evidence in the record to show that Defendant
Assallami, or a substitute Imam, did not visit the SHU on a weekly basis as Defendant Assallami
has stated. See Dkt. No. 63-2 at 62, 65. Furthermore, even assuming that Plaintiff is correct in
his assertion that a religious adviser visited the SHU less than twenty times during the year of
2011, that would not change the fact that Plaintiff received numerous other accommodations to
practice his religion as stated above. Even without weekly visits from Defendant Assallami or a
substitute Imam, the "alternative means" factor is satisfied in this case. See O'Lone 482 U.S. at
352 (holding that the "alternative means" factor was satisfied because the "respondents are not
deprived of all forms of religious exercise, but instead freely observe a number of their religious
obligations").
Based on the foregoing, the Court finds that Magistrate Judge Peebles correctly
determined that Defendants' motion for summary judgment should be granted on Plaintiff's First
Amendment claim.

C.

RLUIPA Claim
Plaintiff also objects to Magistrate Judge Peebles' finding that Plaintiff's RLUIPA claim

should be dismissed and relies on the same arguments as discussed above under the First
Amendment analysis.
RLUIPA provides that
[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, as
15

defined in section 1997 of this title, even if the burden results from
a rule of general applicability, unless the government demonstrates
that imposition of the burden on that person –
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a). As Magistrate Judge Peebles noted, "'RLUIPA imposes duties on
prison officials that exceed those imposed by the First Amendment.'" See Dkt. No. 64 at 25
(quoting Jova v. Smith, 582 F. 3d 410, 415 (2d Cir. 2009)).
The Court finds that Magistrate Judge Peebles was correct in finding that Defendants'
actions in this case have met those heightened duties. After determining that Plaintiff's right was
substantially burdened, the Magistrate Judge was required to determine whether Defendants had
shown that the burden on Plaintiff furthered a compelling governmental interest and whether the
means used were the least restrictive way of achieving that interest. Hartnett v. Barr, 538 F.
Supp. 2d 511, 520 (N.D.N.Y. 2008).
Here, as discussed above in the context of Plaintiff's First Amendment claim, Defendants
have set forth a great deal of evidence in regard to the security and cost concerns involved with
granting Plaintiff's request. See Dkt. No. 64 at 20–21; see also Dkt. No. 57-4 at ¶¶ 8-23; Dkt.
No. 57-6 at ¶¶ 4-10. These substantial safety and cost concerns lead the Court to conclude that
Defendants have demonstrated a compelling governmental interest.
As to whether the burden placed on Plaintiff is the least restrictive means necessary to
serve this compelling interest, it is important to note that Plaintiff's requests were very specific.
Plaintiff requested that either a closed circuit television or additional wiring for an audio feed be
installed in his cell to allow him to watch and/or listen to Jumu'ah services. Both of these

16

requests gave rise to the compelling security and cost concerns discussed above and Defendants
therefore chose to deny the request.5
Also as discussed above, while Plaintiff has now abandoned his initial requests and now
wishes to listen to pre-recorded services on a tape player, the Magistrate Judge correctly refused
to consider this alternative request for relief because it was first placed before the Court in
Plaintiff's opposition to Defendants' motion for summary judgment. See Murray v. Palmer, No.
9:03-cv-1010, 2008 WL 2522324, *22 (N.D.N.Y. June 20, 2008) (holding that "a pro se
plaintiff's papers in opposition to a motion to dismiss may sometimes be read as effectively
amending a pleading (e.g., if the allegations in those papers are consistent with those in the
pleading). However, a pro se plaintiff's papers in opposition to a motion for summary judgment
may not be so read, in large part due to prejudice that would inure to the defendants through
having the pleading changed after discovery has occurred and they have gone through the
expense of filing a motion for summary judgment") (citing Auguste v. Dept. of Corr., 424 F.
Supp. 2d 363, 368 (D. Conn. 2006)); see also Alster v. Goord, 745 F. Supp. 2d 317, 332
(S.D.N.Y. 2010) (quotation omitted).
Therefore, the Court finds that Magistrate Judge Peebles was correct in determining that
Defendants' denial of Plaintiff's requests further a compelling governmental interest and
represent the least restrictive means necessary, and that the Court should grant Defendants'
motion as to Plaintiff's RLUIPA claim.

Plaintiff relies on Hudson v. Dennehy, 538 F. Supp. 2d 400, 412 (D. Mass. 2008), aff'd,
578 F.3d 39 (1st Cir. 2009) (holding that a "ban on participation [special management unit]
inmates by closed-circuit television is not the least restrictive means of vindicating the
compelling interest at issue"). However, Magistrate Judge Peebles is correct that Hudson is
distinguishable as "the Massachusetts Department of Correction did not offer any technical reason
that would prevent closed circuit television broadcasting of Jumu'ah services in the [special
management unit]." See Dkt. No. 64 at 24 (footnote omitted).
5

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IV. CONCLUSION
After careful review of Magistrate Judge Peebles' Report and Recommendation, the
parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Peebles' September 27, 2013 Report and
Recommendation is ADOPTED in its entirety; and the Court further
ORDERS that Defendants' motion for summary judgment (Dkt. No. 57) is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 21, 2014
Albany, New York

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