Smith v. Perlman et al

Filing 38

MEMORANDUM-DECISION AND ORDER: ORDERED, that the Report and Recommendation by United States Magistrate Judge David R. Homer (Dkt. No. 33 ) is rejected in part and accepted in part for the reasons set forth herein. ORDERED, that defendants' mo tion to dismiss (Dkt. No. 24 ) is GRANTED in part and DENIED in part as set forth herein. ORDERED, that plaintiff's cross-motion to amend the complaint (Dkt. No. 27 ) is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 3/19/12. (Attachments: # 1 Report and Recommendation) (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

AUREL SMITH,
Plaintiff,
v.

No. 11-CV-20
(MAD/DRH)

KENNETH PERLMAN, Deputy Commissioner of
Programs, NYS Department of Correctional
Services; MARK LEONARD, Director of Ministerial
Services, NYS Department of Correctional Services;
DANIEL MARTUSCELLO, Superintendent of
Coxsackie Correctional Facility; CAPTAIN R.
SHANLEY, Captain, Acting Deputy Superintendent
of Security at Coxsackie Correctional Facility;
SALTSMAN, Correctional Officer, Coxsackie
Correctional Facility; and MR. J. ADAMS,1
Correctional Officer, Coxsackie Correctional Facility,
Defendants.

APPEARANCES:

OF COUNSEL:

AUREL SMITH
Plaintiff Pro Se
02-A-6279
Auburn Correctional Facility
Post Office Box 618
Auburn, New York 13021
HON. ERIC T. SCHNEIDERMAN
Attorney General for the
State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224-0341

CHRISTOPHER W. HALL, ESQ.
Assistant Attorney General

DAVID R. HOMER
U.S. MAGISTRATE JUDGE

1

According to defendants, this defendant’s correct first name is “Todd.” Defs. Mem.
of Law (Dkt. No 24-1) at 4.

REPORT-RECOMMENDATION AND ORDER2
Plaintiff pro se Aurel Smith (“Smith”), an inmate in the custody of the New York State
Department of Correctional and Community Supervision (“DOCCS”), brings this action
against six DOCCS employees alleging violations of the Civil Rights Act, 42 U.S.C. § 1983
and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc
et seq. (“RLUIPA”). Am. Compl. (Dkt. No. 5). Smith contends that defendants deprived him
of his statutory rights to religious freedom as well as his constitutional rights under the First
and Fourteenth Amendments. Id. Smith also asserts pendant state law claims for
negligence against various defendants. Id.
Presently pending is defendants’ motion to dismiss certain claims and defendants
pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 24. Smith opposes the motion. Dkt. No. 26.
Also pending is Smith’s motion to file a second amended complaint to add the State of New
York as a defendant in the present action. Dkt. No. 27. For the following reasons, it is
recommended that the defendants’ motion be granted in part and denied in part. It is
further ordered that Smith’s motion to amend be denied.

2

This matter was referred to the undersigned for report and recommendation
pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
2

I. Background3
The facts are related herein in the light most favorable to Smith as the non-moving party.
See seubsection II(A) infra.

A. Family/Guest Participation Policy (Counts 1-3)
Smith is a practicing Muslim. Am. Compl. ¶ 20. Islaam has several holy days, two of
which, the Eidul-Fitr and the Eidul-Adhaa (“the ‘Eids”), are the basis of the current
complaint. Id. ¶¶ 22-24. Both ‘Eids included a family/guest participation for many years
until late 2007 when DOCCS changed its internal policy to limit the number of family/guest
participation events to one per year. Id. ¶¶ 26-28; see also Dkt. No. 5-2 at 1 (showing
policy in 1982 where both ‘Eids were categorized as “communal feast[s] which [are]
celebrated with family.”). Accordingly, since 2008, only one of the two aforementioned ‘Eids
could be celebrated with the family members or guests of the inmates. Am. Compl. ¶ 28;
see also Id. ¶¶ 34-35 (Eidul-Adhaa celebrations in January 2009 and December 2010
occurred without family/guest participation), ¶ 36 (Eidul-Adhaa celebration in 2011 not
scheduled as a family/guest participation event); Dkt. No. 5-1 at 12-16 (religious calendar
for 2008); Dkt. No. 5-1 at 17-20 (religious calendar for 2007); Dkt. No. 5-3 (religious
calendar for 2010); Dkt. No. 5-2 at 2-4 (religious calendar for 2011).
However, no similar limitation was instituted for the number of Native American religious
3

Smith attached, and cited to, additional exhibits in his amended complaint.
Consideration of a motion to dismiss “is limited to the facts asserted within the four corners
of the complaint, the documents attached to the complaint as exhibits, and any documents
incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007). As the documents were both attached and incorporated in
the amended complaint, they have been considered in determining the present motion.
3

services which allowed family participation in at least nine religious services. Am. Compl. ¶
29; see also Id. ¶ 37 (noting that Native American celebrations all still accommodate
family/guest participation); Dkt. No. 5-1 at 16 (allowing family participation for all Native
American celebrations in 2008); Dkt. No. 5-1 at 20 (same for all Native American
celebrations in 2009); Dkt. No. 5-3 at 19 (same for all Native American celebrations in
2010); Dkt. No. 5-2 at 2-4 (same for all Native American celebrations in 2011). Smith
submitted letters of complaint to various DOCCS officials. Id. ¶ 32; Dkt. No. 5-2 at 5. On
January 15, 2009, defendant Kenneth Perlman, DOCCS Commissioner of Programs,
responded to Smith’s letter of complaint, directing him to file a formal grievance4 to the
facility so that his concerns could be addressed. Am. Compl. ¶ 33; Dkt. No. 5-2 at 6.
Smith also filed a grievance concerning the disparity between the family/guest
participation allowed in each respective religious organization. Am. Compl. ¶ 30; Dkt. No.
5-1 at 1-2. An investigative report was submitted to the Inmate Grievance Resolution
Committee (“IGRC”) detailing that the investigator spoke with the facility’s Islamic spiritual
advisor, the Imam, who explained “that in past years family events were scheduled for both
‘Eids but this policy was changed. As per directive there is only one family event allowed by
each religious group with exception of Native Americans.” Dkt. No. 5-2 at 8. As the Imam
was not involved with decisions about facility policies, and because the policy at issue here
had already been determined, further discussion with the Imam was not deemed necessary
4

“The IGP [Inmate Grievance Program] is a three-step process that requires an
inmate to: (1) file a grievance with the IGRC [Inmate Grievance Resolution Committee]; (2)
appeal to the superintendent within four working days of receiving the IGRC's written
response, and (3) appeal to the CORC [Central Office Review Committee] ... within four
working days of receipt of the superintendent's written response.” Abney v. McGinnis, 380
F.3d 663, 668 (2d Cir.2004) (internal citations omitted).
4

by DOCCS. Id. The IGRC deadlocked on the issue and it was automatically appealed to
the Superintendent. Am. Compl. ¶ 41; Dkt. No. 5-2 at 9-10 (IGRC decision). According to
Smith, part of the IGRC’s decision was based on comments by defendant Leonard, DOCCS
Director of Ministerial Services, that “family participation [wa]s not mandatory for [the ‘Eid’s]
observance.” Am. Compl. ¶ 41. However, the IGRC decision outlines that it was denied by
the Staff Representatives pursuant to facility policy allowing “one family event . . . per
religious organization.” Dkt. No. 5-2 at 10. Regardless, Smith disagrees with the
proposition that family is not integral to the ‘Eid’s observance. Am. Compl. ¶ 42; but see
Id. ¶ 141 (“[A]lthough family participation in ‘Eid observances need not be mandatory or
obligated, their participation . . . is integral to the celebration of both ‘Eids and participation
therein is an obligation on family members as well as the Muslim prisoners themselves.”);
Dkt. No. 5-1 at 5, 7 (excerpts from religious text stating that attending prayer services is an
individual obligation of each Muslim); Dkt. No. 5-1 at 9 (excerpt from religious text outlining
importance of Muslims to meet with family and friends during religious times, but
emphasizing that visitation is “permissible, and . . . recommended . . . .”).
The Superintendent denied the grievance, noting that
[p]er Ministerial Services, [the] Central Office allows one family
event per year, with the exemption of the Native American faith
group. A Native American religious ceremony is observed with a
family meal. The other religions do not require a family meal as
part of the religious observance. Other religious holidays can be
observed without a family event scheduled.
Dkt. No. 5-2, Am. Compl. ¶ 44 (substantially the same recitation of the Superintendent’s
denial); see e.g. Dkt. No. 5-3 (showing full calendar for all religious events in 2010 and
illustrating that every religion, except Native Americans, were limited to, at most, one
5

family/guest participation event per year); Dkt. No. 5-2 at 2-4 (same for 2011). Smith
appealed the denial and CORC upheld the Superintendent’s determination, emphasizing
again that while only one ‘Eid is now a family event, both are equally acknowledged and
celebrated as holy days on the religious calendar. Am. Compl. ¶¶ 45-46; Dkt. No. 5-2 at 1316.
On January 20, 2009, Smith again wrote to Perlman complaining about the guest
participation disparities. Am. Compl. ¶ 48; Dkt. No. 5-2 at 17-18. On February 2, 2009,
non-party Karen Bellamy responded to Smith’s letter on Perlman’s behalf. Am. Compl. ¶
48; Dkt. No. 5-2 at 19. On January 31, 2009, Smith again wrote to the Commissioner and
received a response from Perlman on the Commissioner’s behalf, informing him that there
were no plans to change the policy for guests participating in religious events. Am. Compl.
¶ 50; Dkt. No. 5-2 at 20-23. Smith claims that Perlman and Leonard were responsible for
either the change in the department policy, or the maintenance of it, and that it should have
been modified to allow Muslims to have both ‘Eids include family or guest participation. Am.
Compl., Count One.

B. Friday Religious Services (Counts 4-5)
Every Friday, religious services were held for Islamic inmates. Am. Compl. ¶¶ 55-56.
While in the general population, Smith attended these services weekly. Id. ¶ 57. In July
2009, Smith received a misbehavior report for allegedly threatening an unnamed
corrections officer. Id. ¶ 65. On August 1, 2009, Smith was removed from the general

6

population and placed in keeplock5 pending his disciplinary hearing. Id. ¶ 66. Smith was
found guilty at the hearing and given confinement in keeplock for thirty days until
September 1, 2009. Id. ¶ 72.
While in keeplock, inmates were required to ask permission, via a special DOCCS form,
to attend weekly religious services. Am. Compl. ¶ 66; Dkt. No. 5-2 at 27. Smith contends
that if permission was denied, DOCCS was required to provide an explanation for said
denial via the form.6 Am. Compl. ¶ 69; Dkt. No. 5-2 at 32. While Smith did not seek
permission to attend services the first Friday he was keeplocked, he did seek permission
each of the following three weeks. Am. Compl. ¶ 73. Smith sent these requests to
defendant Martuscello, the Coxsackie Superintendent, who then forwarded them for
decision m to defendant Shanley, the Coxsackie Acting Deputy Superintendent of Security.
Am. Compl. ¶ 76. The requests were all denied.
Specifically, the first Friday Smith sent both the DOCCS form seeking permission to
attend services and an additional letter to Martuscello outlining his continued right to attend
religious services despite being keeplocked. Am. Compl. ¶¶ 78-79. Martuscello never
responded to Smith’s letter, though he forwarded the request to Shanley who denied it

5

"Keeplock is a form of disciplinary confinement segregating an inmate from other
inmates and depriving him of participation in normal prison activities." Green v. Bauvi, 46
F.3d 189, 192 (2d Cir. 1995); N.Y. Comp. Codes R. & Regs. tit. 7, § 301.6 (2007).
6

Smith attached a copy of the permission form to his amended complaint. Dkt. No.
5-2. The form has two check boxes, one that indicates that permission is granted, and the
other that permission is denied. Id. In the case that permission is denied, the form
indicates that an explanation is required as to “why the inmate’s presence would present a
threat to the operation of the facility.” Id. Considerations include the current infraction for
which the inmate is being disciplined, his adjustment during the period of segregated
confinement, and his disciplinary record in the past six months. Id. There is then
additional space for the officer to note the reasons for dismissal. id.
7

based on Smith’s misbehavior report and disciplinary conviction for threatening an officer.
Id. ¶¶ 79-80. Shanley indicated, by circling two of the three considerations, that Smith’s
current infraction and disciplinary record were reasons for the denial of his request. Id. ¶
80. Shanley also wrote that Smith “[W]as given a misbehavior report for threats,” in the
space below the enumerated criteria for consideration. Id.
In response, Smith wrote another letter to Martuscello, complaining that Shanley’s
reason denying his participation was insufficient. Am. Compl. ¶ 81. In addition, Smith
enclosed another form seeking permission to attend the next week’s religious services. Id.
¶ 82. Martuscello again failed to reply to the letter, forwarded the request to Shanley, who
again denied permission citing the same reasons as before. Id. ¶¶ 83-85. Smith again
wrote to Martuscello, complaining about the adequacy of Shanley’s denials. Id. ¶ 86. Smith
also submitted his third, and final, request for permission to attend the following week’s
religious services. Id. ¶ 87. Again, Shanley received, and denied, Smith’s requests. Id. ¶¶
89-91. However, this time Shanley only circled the considerations of Smith’s current
infraction and disciplinary record and did not include a further notation to explain why
permission was denied. Id. ¶ 91.
Smith filed a grievance regarding Shanley’s repeated denials. Am. Compl. ¶ 94. The
IGRC denied Smith’s grievance, which was later upheld by Martuscello. Id. ¶ 95. Smith
disputed the validity of Shanley’s denials because Smith was serving a minor sentence, was
due to return to general population and thus was not a long-term threat, and was not
attending services with or near the individual that he allegedly threatened. Id. ¶ 104. Smith
also contends that “Martuscello and Shanley maintained a practice not to allow any
keeplocked prisoner attendance at religious services whatsoever,” as it was his belief that
8

no keeplocked prisoners attended religious services from January 2009 through July 2010.
Id. ¶¶ 101, 107, 159.

C. Saturday Islamic Studies Class
Smith attended an Islamic Studies class regularly on Saturday afternoons. Am. Compl.
¶ 109. To attend, Smith needed to be on a list. Id. ¶ 110. On February 6, 2010, Smith
was on this list and was scheduled to attend. Id. ¶¶ 111, 113. Defendants Saltsman and
Adams, both corrections officers, were working on Smith’s unit that day. Id. ¶ 113. At the
time of the class,, Smith spoke with Saltsman as he was passing by Smith’s cell. Id. ¶ 115.
Saltsman acknowledged that Smith had permission to attend the class but did not release
Smith from his cell. Id. ¶ 116.
Shortly thereafter, Adams released other inmates from their cells for the law library. Am.
Compl. ¶ 117. Smith called out to Adams, informing him of his call out for his religious
group. Id. ¶ 118. Adams also acknowledged that the group was being held and did not
dispute Smith’s permission to attend said course but never released Smith for the class.
Id. ¶¶ 119-20.
Smith filed a grievance against Saltsman and Adams for failing to release him from his
cell for the class. Am. Compl. ¶ 122; Dkt. No. 5-2 at 36-38. Smith was interviewed in
conjunction with the grievance and was told that neither Saltsman or Adams denied failing
to release him, but instead the investigator surmised that defendants “may have mistakenly
failed to [release him].” Am. Compl. ¶¶ 123-24. Both officers claimed not to recall the
event. Id. ¶ 135. The grievance was denied and subsequently appealed. Dkt. No. 5-2 at
39.
9

II. Discussion
In his amended complaint, Smith alleges that his First Amendment rights were violated
when defendants prohibited him from attending three religious Friday services, a Saturday
religious study group, and changed the policy to allow only one ‘Eid to have family
participation. Smith also asserts a Fourteenth Amendment violation because he was
unable to attend religious services while keeplocked and because Muslims were treated
differently than Native Americans concerning the number of family/guest participation
events they were allowed annually. Smith also seeks to add the State of New York as a
defendant in the present complaint. Defendants move for dismissal on the grounds that (1)
Perlman, Leonard and Martuscello lacked personal involvement in the alleged constitutional
violations; (2) the constitutional claims are meritless; (3) the RLUIPA claims are also
meritless; and (4) the state claims are precluded by Corrections Law § 24.

A. Legal Standard
Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When
considering a motion to dismiss, “a court must accept the allegations contained in the
complaint as true, and draw all reasonable inferences in favor of the non-movant.”
Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, this “tenet . . . is
inapplicable to legal conclusions[; thus, t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)
(holding that “entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action . . . [as] courts are not bound to
10

accept as true a legal conclusion couched as a factual allegation.”)).
Accordingly, to defeat a motion to dismiss, a claim must include “facial plausibility . . .
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556 (explaining
that the plausibility test “does not impose a probability requirement . . . it simply calls for
enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal
[conduct].”)); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that, “[o]n
a motion to dismiss, courts require enough facts to state a claim to relief that is plausible . .
. .”) (citations omitted). Determining whether plausibility exists is “a content specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 129 S. Ct. at 1950-51.
When, as here, a party seeks judgment against a pro se litigant, a court must afford the
non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006). As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se litigant is entitled
to “special solicitude,” . . . that a pro se litigant's submissions must be
construed “liberally,”. . . and that such submissions must be read to raise the
strongest arguments that they ‘suggest. . . . . At the same time, our cases
have also indicated that we cannot read into pro se submissions claims that
are not “consistent” with the pro se litigant's allegations, . . or arguments that
the submissions themselves do not “suggest, . . .” that we should not “excuse
frivolous or vexatious filings by pro se litigants” . . . and that pro se status
“does not exempt a party from compliance with relevant rules of procedural
and substantive law . . . .”
Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant #1, 537
F.3d 185, 191-92 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded
district courts that ‘when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his

11

pleadings liberally.’” (citations omitted)).

B. Personal Involvement
“‘[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’” Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Thus,
supervisory officials may not be held liable merely because they held a position of authority.
Id.; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). However, supervisory personnel may
be considered “personally involved” if:
(1) [T]he defendant participated directly in the alleged constitutional
violation;
(2) the defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of
such a policy or custom;
(4) the defendant was grossly negligent in supervising subordinates
who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the rights of
inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Williams v. Smith, 781 F.2d 319,
323-24 (2d Cir. 1986)).7

7

Various courts in the Second Circuit have considered how, if at all, the Iqbal
decision affected the five Colon factors which were traditionally used to determine
personal involvement. See McCarroll v. Fed. Bureau of Prisons, No. 08-CV-1343
(DNH/GHL), 2010 WL 4609379, at *4 (N.D.N.Y. Sept. 30, 2010) (noting that although the
Second Circuit has not yet addressed Iqbal’s impact on the five Colon factors, several
12

1. Perlman
Perlman is the Deputy Commissioner of Programs. In this capacity, he responded to
Smith’s complaints about the changes to the family/guest participation events. While the
first response merely directed Smith to file a formal grievance at the facility level, an action
insufficient to establish personal involvement, the second response indicated that there
were no plans to reinstate an additional family event. Perlman also authored the
memoranda distributed to the various Superintendents at the DOCCS facilities which
outlined the religious calendar and the number and dates of the family/guest participation
events. Dkt. No. 5-3 at 1. Accordingly, in light of Perlman’s letter and memoranda and
viewing the evidence in the light most favorable to Smith, it appears that Perlman was
involved in at least the continuation of the allegedly unconstitutional policy. See Boddie v.
Morgenthau, 342 F. Supp. 2d 193, 203 (S.D.N.Y. 2004) (“While mere receipt of a letter from
a prisoner is insufficient to establish individual liability . . . [p]ersonal involvement will be
found . . . where a supervisory official receives and acts on a prisoner’s grievance or
otherwise reviews and responds to a prisoner’s complaint.”); McClary v. Coughlin, 87 F.
Supp. 2d 205, 215 (W.D.N.Y. 2000) (“Personal involvement does not hinge on who has the
ultimate authority for constitutionally offensive decisions. Rather, the proper focus is the
defendant’s direct participation in, and connection to, the constitutional deprivation.”).
Accordingly, Smith has alleged sufficient facts to demonstrate that Perlman was directly
involved with the implementation and continuation of the alleged unconstitutional policy.

district courts have done so); Kleehammer v. Monore County, 743 F. Supp. 2d 175
(W.D.N.Y. 2010) (holding that “[o]nly the first and part of the third Colon categories pass
Iqbal’s muster . . . .”); D’Olimpio v. Crisafi, 718 F. Supp. 2d 340, 347 (S.D.N.Y. 2010)
(disagreeing that Iqbal eliminated Colon’s personal involvement standard).
13

Defendants’ motion on this ground as to Perlman should be denied.

2. Leonard
Leonard was the Director of Ministerial Services, allegedly informed individuals during
the grievance decisions how the religious policy regarding family/guest participation
operated, and expressed his understanding of its continued existence in the future.
Documents attached to the complaint show that Ministerial Services was contacted, and
provided guidance, to CORC when it was asked to issue a decision for Smith’s grievance.
Dkt. no. 5-2 at 12. Accordingly, as with Perlman, viewing the facts alleged in the amended
complaint in the light most favorable to Smith, Smith has alleged sufficient facts to deem
Leonard directly involved with the implementation and continuation of the policy.
Therefore, defendants’ motion on this ground as to Leonard should be denied.

3. Martuscello
As the Superintendent of Coxsackie, Martuscello failed to respond to Smith’s letters of
complaint regarding his denied requests for permission to attend religious Friday services
while keeplocked. Failure to respond to letters is insufficient to establish personal
involvement. Smart v. Goord, 441 F. Supp. 2d 631, 643 (S.D.N.Y. 2006) (“Commissioner . .
. cannot be held liable on the sole basis that he did not act in response to letters of protest
sent by [plaintiff] . . . .”). Similarly, receipt of a letter, without personally investigating or
acting on the letter or grievance, is insufficient to establish personal involvement. See, e.g.,
Rivera v. Fischer, 655 F. Supp. 2d 235, 238 (W.D.N.Y.2009) (citing cases); Boddie v.
Morgenthau, 342 F. Supp. 2d 193, 203 (“While mere receipt of a letter from a prisoner is
14

insufficient to establish individual liability . . . [p]ersonal involvement will be found . . . where
a supervisory official receives and acts on a prisoner’s grievance or otherwise reviews and
responds to a prisoner’s complaint.”).
Moreover, Martuscello’s actions in forwarding Smith’s requests for permission to attend
religious activities to Shanley is also insufficient to establish personal involvement because
it is within the purview of a superior officer to delegate responsibility to others. See Vega v.
Artus, 610 F. Supp. 2d 185, 198 (N.D.N.Y.2009) (finding no personal involvement where
“the only involvement of the supervisory official is to refer the inmate's complaint to the
appropriate staff for investigation.”) (citing Ortiz-Rodriquez v. N.Y. State Dep't of Corr.
Servs., 491 F. Supp. 2d 342, 347 (W.D.N.Y.2007)).
Lastly, Martuscello’s actions in denying Smith’s two grievance appeals, regarding
isolated and unrelated incidents relating to Shanley’s refusal to allow him to participate in
three Friday services and Saltsman’s and Adam’s failure to take him to his Saturday
religious studies group, are also insufficient to state a claim for personal involvement. Both
of these grievances relate to “alleged misconduct [that] had already occurred . . . [as
opposed to] complaining about an ‘ongoing’ violation.” Harnett v. Barr, 538 F. Supp. 2d
511, 524-25 (N.D.N.Y. 2008). Without more, the requirement for personal involvement has
not been satisfied. Id.
Martuscello cannot otherwise be deemed personally involved for his position in a
hierarchical chain of command. Wright, 21 F.3d at 501. Moreover, the amended complaint
fails to allege, and Smith offers no evidence other than conclusory statements, that
Martuscello failed to train any of the defendants. Finally, for the same reasons as cited
above, Smith has failed to establish that Martuscello was grossly negligent or aware, and
15

indifferent to an ongoing constitutional violation.
Accordingly, defendants’ motion as to Martuscello should be granted on this ground.

C. First Amendment
The First Amendment protects the right to free exercise of religion. See generally Cutter
v. Wilkinson, 544 U.S. 709, 719 (2005). “Prisoners have long been understood to retain
some measure of the constitutional protection afforded by the First Amendment’s Free
Exercise Clause.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v.
Procunier, 417 U.S. 817, 822 (1974)). This right is not absolute and can be limited due to
the inmate’s “incarceration and from valid penological objectives – including deterrence of
crime, rehabilitation of prisoners, and institutional security.” O’Lone v. Estate of Shabazz,
482 U.S. 342, 348 (1987) (citations omitted); see also Benjamin v. Coughlin, 905 F.2d 571,
574 (2d Cir. 1990) (“The governing standard is one of reasonableness, taking into account
whether the particular regulation . . . is reasonably related to legitimate penological
interests.”) (citations omitted).
The Turner Court determined that the four factors to be considered
are: 1) whether there is a rational relationship between the
regulation and the legitimate government interests asserted; 2)
whether the inmates have alternative means to exercise the right;
3) the impact that accommodation of the right will have on the
prison system; and 4) whether ready alternatives exist which
accommodate the right and satisfy the governmental interest.
Benjamin, 905 F.2d at 574 (citing Turner v. Safely, 483 U.S. 78, 89-91 (1987).

1. Attendance at the Friday Services
“”[P]risoners have a constitutional right to participate in congregate religious services.”
16

Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (citations omitted). “Confinement
in keeplock does not deprive prisoners of this right.” Id. (citations omitted). While the
Second Circuit has accorded prison officials great deference in the administration and
“responsibility of maintaining order in prisons, . . . prisoners should be afforded every
reasonable opportunity to attend religious services, whenever possible.” Young v. Coughlin,
866 F.2d 567, 570 (2d Cir. 1989) (citations omitted). “The governing standard is one of
reasonableness, taking into account whether the particular regulation affecting some
constitutional right asserted by a prisoner is reasonably related to legitimate penological
interests.” Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990) (citations omitted). The
same analysis is undertaken when there is an allegation that “an individual dec[ided] to
deny a prisoner the ability to engage in some requested religious practice.” Ford, 352 F.3d
at 595 n.15 (citations omitted).
Defendants contend that Smith’s religious beliefs were not substantially burdened if he
was denied attendance at three Friday prayer services. The Supreme Court has previously
recognized the importance of these Friday services, explaining that they are “commanded
by the Koran and must be held . . . after the sun reaches its zenith and before the . . .
afternoon prayer.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987); see also
Salahuddin, 993 F.2d at 307 (“Participation in Jumu’ah [the Muslim Friday prayer service,] is
the central observance of Islam.”). Accordingly, significant importance attaches to the
prayer services.
However, some courts have determined that individual prayer is adequate to fulfill a
Muslim’s prayer obligations and that legitimate excusals from prayer services do not
substantially burden religious beliefs. See Abdur-Rahman v. Michigan Dep’t of Corr., 65
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F.3d 489, 492 (6th Cir. 1995) (concluding that because “the Islamic religion expressly
excuses individuals who are in prison for good cause [and that] . . . Friday services are not
fundamental to [the Islamic] religion . . . “ no substantial burden had occurred); Boomer v.
Irving, 963 F. Supp. 227, 230-31 (W.D.N.Y. 1997) (explaining that “two Muslim Imams
[testified] . . . that an inmate’s failure or inability to attend one [prayer] service does not
substantially interfere with the inmate’s obligations as a practicing Muslim because those
obligations may be fulfilled by individual prayer offerings with no adverse consequences.”).
Smith continually stresses that the deprivation of attending the three services substantially
burdened him, but fails to articulate why or how. Pl. Mem. of Law (Dkt. No. 26) at 11.
However, construing the facts in the light most favorable to Smith it may be determined that
by missing three consecutive religious services a substantial burden occurred.
Regardless I of this burden, Smith has failed to allege or prove that the denial of his
requests for permission to attend three Friday services while in keeplock was unreasonable
and thus in contravention of his constitutional rights. In this case, the regulation requiring
Smith to seek and receive permission to attend services only if the inmate did not pose a
security risk is reasonably related to one of the most important prison objectives of
maintaining order and safety in the correctional institutions. Smith was denied permission
to attend the services for the same reasons which led to his keeplock confinement, that he
had threatened a corrections officer and received a disciplinary confinement for such
actions. Accordingly, defendants Martuscello and Shanley acted pursuant to legitimate
penological concerns. Defs. Mem. of Law (Dkt. No. 24-1) at 12-13. Furthermore, the
Muslim faith allows “excuse[s] from Friday services for [legitimate] reasons . . . .” which
would include releases precluded because of security risks. Abdur-Rahman, 65 F.3d at
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491-92 (dismissing inmate’s First Amendment claims when his requests to leave his work
assignment to attend religious services was denied due to the resulting security threat);
Boomer, 963 F. Supp. at 230-31.
Defendants’ motion on this ground should be granted.

2. Attendance at Saturday Religious Studies Group
Smith also contends that Saltsman and Adams violated his First Amendment rights
when they failed take him fro keeplock to one meeting of a Saturday religious study group.
Defendants contend that denying Smith attendance at one isolated religious study group
session is insufficient to burden Smith’s religious rights.
A substantial burden requires more than a mere inconvenience to an inmate’s religious
beliefs. Boomer, 963 F. Supp. at 230 (citations omitted); see also Salahuddin, 467 F.3d at
275 (citations omitted). Missing one religious service does not constitute a substantial
burden on an inmate’s right to practice his religion. See Cancel v. Mazzuca, 205 F. Supp.
2d 128, 142 (S.D.N.Y. 2002) (granting motion to dismiss against defendant that prevented
inmate from attending religious services on one occasion); Boomer, 963 F. Supp. at 230-31.
The Second Circuit has also affirmed this, concurring that missing one religious service was
insufficient to state a First Amendment claim. Gill v. DeFrank, 8 Fed. Appx. 35, 37 (2d Cir.
2001) (attached to Report-Recommendation as Ex. 1). It is arguable whether a religious
study group session is afforded the same deference as a religious service as it is informal
by its nature and has not been identified as being a part of, or comparable to, a recognized
religious service. Regardless of its significance, the actions of Stalsman and Adams in
precluding Smith from attending one meeting of the religious study group was at most an
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inconvenience which is insufficient to establish a substantial burden.
Therefore, defendants’ motion as to this claim should be granted on this ground.

D. RLUIPA Claim
The 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 . . . 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. In a RLUIPA claim, “[t]he prisoner must show at the threshold that
the disputed conduct substantially burdens his sincerely held religious beliefs. The
defendants then bear the relatively limited burden of identifying the legitimate penological
interests that justify the impinging conduct.” Salahuddin, 467 F.3d at 274-75.
Congress, in enacting the RLUIPA, anticipated that Courts would
give “due deference to the experience and expertise of prison and
jail administrators in establishing necessary regulations and
procedures to maintain good order, security and discipline,
consistent with consideration of costs and limited resources.
Nevertheless, prison officials cannot simply use the words
“security” and “safety”, and expect that their conduct will be
permissible.
Singh v. Goord, 520 F. Supp. 2d 487, 499 (S.D.N.Y. 2007) (internal citations omitted).
As discussed above, even construing the facts in the light most favorable to Smith, he
has failed to allege facts sufficient to establish that (1) Martuscello and Shanley’s actions
were not supported by a legitimate penological interest and (2) defendants Saltsman and
Adams’ conduct substantially burdened his religious beliefs and practices. Accordingly,
defendants’ motion on this ground should be granted as to this claim.
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E. Fourteenth Amendment
The Fourteenth Amendment's Equal Protection Clause mandates equal treatment under
the law. Essential to that protection is the guarantee that similarly situated persons
be treated equally. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985); Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (“To prove a violation of the
Equal Protection Clause . . . a plaintiff must demonstrate that he was treated differently than
others similarly situated as a result of intentional or purposeful discrimination.”).
[T]he Equal Protection Clause bars the government from selective
adverse treatment of individuals compared with other similarly
situated individuals if such selective treatment was based on
impermissible considerations such as race, religion, intent to inhibit
or punish the exercise of constitutional rights, or malicious or bad
faith intent to injure a person.
Vegas, 610 F. Supp. 2d at 209 (internal quotation marks and citations omitted). However,
“[t]he Supreme Court has specifically held that in the prison context, the Equal Protection
clause does not require that every religious sect or group within a prison . . . have identical
facilities or personnel.” Pugh v. Goord, 571 F. Supp. 2d. 477, 502 (S.D.N.Y. 2008) (internal
quotation marks and citations omitted). Thus, even if Smith alleges that two groups were
similarly situated, disparate treatment may still have been permissible if the distinctions
were reasonably related to legitimate penological interests. Id.
In this case, Smith claims that his equal protection rights were violated when he was not
allowed to attend Friday services on three occasions when general population inmates were
allowed to attend. Also, Smith alleges his rights were generally violated because
Martuscello and Shanley were believed to never allow keeplocked inmates to attend
religious services. Smith has failed to allege an equal protection claim. First, Smith was not

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similarly situated to the inmates in the general population because he had been adjudged
guilty of a disciplinary charge which resulted in confined housing. Second, Smith was not
the subject of intentional discrimination. As previously discussed, he was precluded from
attending the services for legitimate penological reasons which had nothing to do with
Smith’s religious affiliation. Third, Smith’s claims that all keeplocked inmates were
prevented from ever attending any religious services are conclusory and unsupported.
Smith fails to identify the other inmates to whom he refers, their religious affiliations, or from
which services they were denied attendance. Accordingly, Smith has failed to establish the
necessary elements of an Equal Protection claim.
Defendants’ motion as to this claim should be granted.

F. State Law Claims
Smith’s amended complaint also asserts that Martuscello, Saltsman, and Adams were
all negligent in their actions. However these claims fail as a matter of law. New York
Correction Law § 24 provides that
1. No civil action shall be brought in any court of the state, except
by the attorney general on behalf of the state, against any officer or
employee of the department, in his personal capacity, for damages
arising out of any act done or the failure to perform any act within
the scope of the employment and in the discharge of the duties by
such officer or employee.
2. Any claim for damages arising out of any act done or the failure
to perform any act within the scope of the employment and in the
duties of any officer or employee of the department shall be
brought and maintained in the court of claims as a claim against
the state.
“Section 24 thus precludes claims against corrections officers brought against them in any

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court in their personal capacities arising out of the discharge of their duties.” Crump v.
Ekpe, No. 07-CV-1331, 2010 WL 502762, at *18 (N.D.N.Y. Feb. 8, 2010) (citations omitted)
(Attached to Report-Recommendation as Ex. 2).
Because a federal court applying pendent jurisdiction is forced to apply state substantive
law to a state claim, this would result in inmates being prohibited from advancing such
pendent claims along with their federal claims in federal court. Baker v. Coughlin, 77 F.3d
12, 15 (2d Cir. 1996).
In 2009, the United States Supreme Court held that § 24 is
unconstitutional to the extent that it precludes inmates from
pursuing § 1983 actions. However, at least two judges in this
District have observed that because Haywood’s focus is on
concerns about civil rights claims and the Supremacy Clause, the
decision does not affect the question of whether this Court has
proper jurisdiction to hear a pendent state law claim.
Tafari v. McCarthy, 714 F. Supp. 2d 317, 384 (N.D.N.Y. 2010) (internal quotation marks and
citations omitted). Accordingly, this district has continued to dismiss state law pendent
claims against defendants acting within their personal capacities, discharging their duties,
pursuant to the preclusive effects of § 24. See e.g., Crumpe, 2010 WL 502762, at *18.
When determining whether actions fall within the scope of the defendants employment,
courts have considered:
the connection between the time, place and occasion for the act;
the history of the relationship between employer and employee as
spelled out in actual practice; whether the act is one commonly
done by any employee; the extent of the departure from normal
methods of performance; and whether the specific act was one that
the employer could reasonably have anticipated.
Degrafinreid v. Ricks, 452 F. Supp. 2d 328, 333 (S.D.N.Y. 2006) (citations omitted). Thus,
“an employee will be considered within the scope of his employment so long as he is

23

discharging his duties no matter how irregularly, or with what disregard of instructions.” Id.
(citations omitted). Even in cases where alleged excessive force was used in frisking or
searching a cell, or where negligence was alleged in the provision of medical care, such
actions are still defined to be within an employee’s duties. Id. (citations omitted); see also
Crump, 2010 WL 502762, at *18 (listing DOCCS employee duties to include
“determinations to administratively confine plaintiff to SHU, to issue a misbehavior report,
the conduct of the disciplinary hearing, and the determination that plaintiff was guilty of the
charges alleged,” and explaining that while actions “exceeding the scope of the corrections
officer’s authority . . . .” may give rise to a constitutional violation, such actions are still
precluded pursuant to § 24).
With respect to the defendants making the present motion, all of their purported actions
fall within their assigned duties. Martuscello’s actions in denying grievances and making
determinations on the whereabouts of inmates all fell within his assigned duties as a
Superintendent. The same is true of Shanley’s discretion in granting or denying Smith
permission to attend religious services and Saltsman’s and Adams’ duties in running the
housing floor and assembling inmates for call outs. Thus, § 24 prohibits the advancement
of any pendent state law claims. While these defendants’ actions may be cited as the
alleged cause of a constitutional violation, it is insufficient to remove this action from the bar
of § 24.
Accordingly, defendants’ motion should be granted on this ground as to Smith’s state
law claims against the moving defendants.

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III. Motion to Amend
Rule 15(a) provides that a court should grant leave to amend "freely . . . when justice so
requires." When exercising its discretion, a court must examine whether there has been
undue delay, bad faith, or dilatory motive on the part of the moving party. Evans v.
Syracuse City School District, 704 F.2d 44, 46 (2d Cir. 1983) (citing Foman, 371 U.S. at
182). The court must also examine whether there will be prejudice to the opposing party.
See, e.g., Ansam Associates Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir.1985)
(permitting proposed amendment would be especially prejudicial once discovery has been
completed and a summary judgment motion filed). Finally, where it appears that granting
leave to amend is unlikely to be productive or the amendment is futile, it is not an abuse of
discretion to deny leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d
Cir. 1993) (citations omitted).
In this case, granting Smith’s liberally construed request to amend his complaint to add
New York State as a defendants is futile under the Eleventh Amendment. The Eleventh
Amendment provides that "[t]he Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S.
Const. amend. XI. "[D]espite the limited terms of the Eleventh Amendment, a federal court
[cannot] entertain a suit brought by a citizen against his [or her] own State." Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134
U.S. 1, 21 (1890)). Regardless of the nature of the relief sought, in the absence of the
State’s consent or waiver of immunity, a suit against the State or one of its agencies or
departments is proscribed by the Eleventh Amendment. Halderman, 465 U.S. at 100.
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Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See
Quern v. Jordan, 440 U.S. 332, 340-41 (1979). Therefore, the Eleventh Amendment bars
suit against the State of New York.
Moreover, in the case of proposed amendments where new defendants are to be added,
the Court must also look to Fed. R. Civ. P. 21. Rule 21 states that a party may be added to
an action "at any stage of the action and on such terms as are just." Rule 21 is "intended to
permit the bringing in of a person, who through inadvertence, mistake or for some other
reason, had not been made a party and whose presence as a party is later found necessary
or desirable." United States v. Commercial Bank of N.A., 31 F.R.D. 133, 135 (S.D.N.Y.
1962) (internal quotations omitted). Addition of parties under Rule 21 is also guided by the
same liberal standard as a motion to amend under Rule 15. Fair Housing Dev. Fund Corp.
v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y. 1972).
As previously stated, the State of New York is neither a necessary or desirable party as
all claims against it are futile. Thus, as the liberal standard of Rule 15 precludes the
addition of the State as a defendant, so does Rule 21. Accordingly, Smith’s motion to
amend is denied on this ground.

IV. Conclusion
For the reasons stated above, it is hereby RECOMMENDED that defendants’ motion to
dismiss (Dkt. No. 24) be:
1. GRANTED as to
A. The First Amendment and RLUIPA claims against Martuscello and Shanley
for denying Smith attendance at Friday religious services;
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B. The First Amendment and RLUIPA claims against defendants Saltsman and
Adams for denying Smith attendance at Saturday’s religious study group;
C. The Equal Protection claims against Martuscello and Shanley for precluding
Smith, and the other keeplocked inmates, from attending religious services;
and
D. Smith’s state law negligence claims against Martuscello, Saltsman, and
Adams; and
2. DENIED in all other respects; and
IT IS HEREBY ORDERED that Smith’s motion for leave to file a second amended
complaint (Dkt. No. 27) is DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge 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 DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec’y of HHS, 892
F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

Dated: February 28, 2012
Albany, New York

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