Smith v. Perlman et al
Filing
97
MEMORANDUM-DECISION AND ORDER: ORDERED that Plaintiff's motion for reconsideration is GRANTED and the Court's Order dated March 13, 2014 is VACATED. ORDERED, that the Report and Recommendation by United States Magistrate Judge Christian F. Hummel (Dkt. No. 90 ) is rejected in part and accepted in part for the reasons set forth herein. ORDERED that Plaintiff's motion for partial summary judgment (Dkt. No. 73 ) is DENIED. ORDERED that Defendants' cross motion for su mmary judgment (Dkt. No. 81 ) is GRANTED. ORDERED that Plaintiff's motion for a temporary restraining order and preliminary injunction (Dkt. No. 79 ) is DENIED. 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 12/18/14. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
AUREL SMITH,
Plaintiff,
vs.
09:11-cv-00020
(MAD/CFH)
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; JEFFREY A. HALE; HARRY S. GRAHAM,
Superintendent of Auburn Correctional Facility;
G. ROBINSON, Deputy Superintendent of Auburn
Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
AUREL SMITH
02-A-6279
Attica Correctional Facility
Box 149
Attica, New York 14011
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants
KEVIN M. HAYDEN, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff, an inmate currently in the custody of the New York State Department of
Corrections and Community Supervision ("DOCCS"), brought this pro se action pursuant to 42
U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the First and
Fourteenth Amendments, as well as his rights under the Religious Land Use and Institutionalized
Persons Act of 2000 ("RLUIPA"). See Dkt. No. 1; Dkt. No. 47. Now before the Court are
Plaintiff's motion to accept the filing of late objections to the Magistrate Judge's ReportRecommendation and Order and motion for reconsideration, pursuant to Fed. R. Civ. P. 59(e), of
the Court's March 13, 2014 Order denying Plaintiff's motions for partial summary judgment and
injunctive relief and granting Defendants' cross motion for summary judgment. Dkt. No. 93; Dkt.
No. 94.
II. BACKGROUND
The factual background and full procedural history of this case is set forth in the Court's
prior orders, the parties' familiarity with which is assumed. Relevant here, on August 23, 2013,
Plaintiff moved for partial summary judgment against Defendants Perlman and Leonard on his
claims alleging violations of the Fourteenth Amendment and RLUIPA based on the DOCCS
policy of limiting religious family guest events for Muslim inmates to one per year and against
Defendants Perlman, Leonard, Hale, and Graham on his claims alleging violations of the First and
Fourteenth Amendments and RLUIPA based on Defendants' refusal to provide Plaintiff with
meals combining therapeutic diet and halal restrictions. Dkt. No. 73. On October 28, 2013,
Plaintiff moved for a temporary restraining order and preliminary injunction requiring Defendants
to accommodate his religious and medical dietary needs by substituting halal meat for haram meat
in his therapeutic diet. Dkt. No. 79. Defendants filed an opposition to Plaintiff's motion for
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partial summary judgment and cross motion for summary judgment on all counts on November
27, 2013. Dkt. No. 81.
In a Report-Recommendation and Order dated February 18, 2014, Magistrate Judge
Christian F. Hummel recommended that the Court deny Plaintiff's motions for partial summary
judgment and injunctive relief, grant Defendants' cross motion for summary judgment, and
dismiss this case. Dkt. No. 90. Neither party filed objections to Magistrate Judge Hummel's
Report-Recommendation and Order by the filing deadline of March 7, 2014. Finding no clear
error or manifest injustice in Magistrate Judge Hummel's Report-Recommendation and Order, the
Court adopted the Report-Recommendation and Order in its entirety in an Order dated March 13,
2014 and entered judgment in Defendants' favor. Dkt. No. 91; Dkt. No. 92.
On March 24, 2014, Plaintiff filed a letter motion requesting that the Court accept his late
filing of objections addressing specific portions of Magistrate Judge Hummel's report. Dkt. No.
93.1 Plaintiff's primary objection to the Report-Recommendation and Order was that Magistrate
Judge Hummel erred in concluding that Plaintiff did not respond to Defendants' cross motion for
summary judgment, thereby mistakenly taking Defendants' motion as unopposed and evaluating
Defendants' factual assertions in the absence of Plaintiff's response and exhibits. See id. at 4.
Plaintiff then filed a motion for reconsideration of the Court's Order adopting the ReportRecommendation and Order, which again contended that Plaintiff was prejudiced to the extent
Plaintiff asserts that he deposited his objections in a mailbox at the Attica Correctional
Facility, where he is currently housed, on February 28, 2014, and the facility returned the
objections to him on March 6, 2014 for insufficient postage. Id. at 2-3. Plaintiff contends that he
did not have access to a postage scale to determine sufficient postage for his filings because he
was not permitted to visit the law library where the postage scale is located between the time of
the issuance of the Report-Recommendation and Order and the deadline for filing his objections.
Id. at 3. Because the Court received Plaintiff's objections to the Report-Recommendation and
Order after issuing its Order, the Court will treat the motion as one for reconsideration in
conjunction with the Plaintiff's subsequent motion.
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that Magistrate Judge Hummel's analysis overlooked Plaintiff's response to Defendants' cross
motion for summary judgment, reply to the opposition of his motion for partial summary
judgment, and related exhibits. See Dkt. No. 94-1. Defendants oppose Plaintiff's motion to
reconsider, arguing that, "[d]espite his claims to the contrary, Plaintiff's reply papers were
accepted for filing before the Report-Recommendation was issued" and that "Plaintiff has failed
to dispute the law relied upon by the Court when dismissing his action." Dkt. No. 95 at 5.
III. MOTION FOR RECONSIDERATION
A.
Legal Standards
Rule 59(e) of the Federal Rules of Civil Procedure provides that "[a] motion to alter or
amend a judgment must be filed no later than 28 days after the entry of the judgment." Fed. R.
Civ. P. 59(e). The courts in this Circuit generally permit motions to reconsider grants of
summary judgment to be brought under Rule 59(e). Patel v. Lutheran Med. Ctr., Inc., 775 F.
Supp. 592, 596 (E.D.N.Y. 1991); see also Travelers Ins. Co. v. Buffalo Reinsurance Co., 739 F.
Supp. 209, 213 (S.D.N.Y. 1990) (vacating a grant of summary judgment pursuant to Rule 59(e)).
The standard for granting a motion for reconsideration "is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked – matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Under Rule 59(e), "a court is justified in reconsidering its previous ruling if: (1) there is an
intervening change in the controlling law; (2) new evidence not previously available comes to
light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice."
Nossek v. Bd. of Educ. of Duanesburg Cent. Sch. Dist., No. 94-CV-219, 1994 WL 688298, *1
(N.D.N.Y. Nov. 10, 1994). A motion for reconsideration "is not to be used as a means to reargue
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matters already argued and disposed of by prior rulings or to put forth additional arguments which
[a party] could have made but neglected to make before judgment." Duane v. Spaulding &
Rogers Mfg. Inc., No. 92-CV-305, 1994 WL 494651, *1 (N.D.N.Y. Aug. 10, 1994) (internal
quotations omitted).
B.
Analysis
Here, Plaintiff contends that reconsideration is necessary to prevent manifest injustice
because Magistrate Judge Hummel and the Court did not consider his reply papers and exhibits in
deciding the underlying motions. In a text order dated February 14, 2014, Magistrate Judge
Hummel accepted for filing Plaintiff's reply to the opposition of Plaintiff's motion for partial
summary judgment and Plaintiff's response to Defendants' cross motion for summary judgment.
Dkt. No. 89. However, the Report-Recommendation and Order stated that "Smith does not
oppose defendants' cross motion. Upon requests, this Court twice granted Smith an extension of
time to respond to defendants' cross motion, the most recent deadline being February 5, 2014.
The deadline expired and Smith never responded." Dkt. No. 90 at 2 (citations omitted). Thus, the
Report-Recommendation and Order clearly indicates that despite having accepted Plaintiff's late
reply papers, Magistrate Judge Hummel did not consider the reply papers or attached exhibits in
evaluating the parties' respective motions.2 The Court, which adopted Magistrate Judge
Hummel's Report-Recommendation and Order in its entirety, also failed to examine Plaintiff's
reply papers in its analysis of the parties' respective motions.
The Court's view that Plaintiff's reply papers were in fact overlooked, despite
Defendants' arguments to the contrary, is reinforced by the fact that the Report-Recommendation
and Order does not include a single reference or citation to Plaintiff's reply papers or exhibits
outside of the language quoted above.
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Thus, Plaintiff's motion for reconsideration does not attempt to raise arguments or
evidence Plaintiff neglected to put forth earlier, but rather urges the Court to grant due
consideration to overlooked evidence Plaintiff presented. Along with his reply papers, Plaintiff
filed approximately 185 pages of exhibits, including, inter alia, Defendants' responses to
interrogatories, records related to Plaintiff's grievances filed with DOCCS, and various DOCCS
internal communications and policy materials. See Dkt. No. 88-3. Such evidence "might
reasonably be expected to alter the conclusion reached by the court" upon consideration of a
motion for summary judgment. Shrader, 70 F.3d at 257. In the interest of avoiding manifest
injustice, Plaintiff is entitled to have the Court consider this evidence. Accordingly, the Court
hereby ORDERS that Plaintiff's motion for reconsideration is GRANTED and the Court's Order
dated March 13, 2014 is VACATED.
IV. RECONSIDERATION AND ORDER
Having thoroughly reviewed Plaintiff's reply papers, attached exhibits, objections to
Magistrate Judge Hummel's Report-Recommendation and Order, and motion for reconsideration,
the Court now reviews Magistrate Judge Hummel's findings and recommendations.
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
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,
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reject, or modify, in whole or in part, the findings or recommendations 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 such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 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. 2505, 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").
In reviewing 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 (1972)) (other
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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. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
However, this does not mean that a pro se litigant is excused from following the procedural
requirements of summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725,
2001 WL 527484, *2 (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 Carey v. Crescenzi,
923 F.2d 18, 21 (2d Cir. 1991)).
B.
Statement of Material Fact
Defendants argued that Plaintiff's motion for partial summary judgment should be denied
because Plaintiff failed to include a Statement of Material Facts as required by N.D.N.Y.L.R. §
7.1(a)(3). Magistrate Judge Hummel found that Plaintiff substantially complied with Local Rule
7.1(a)(3) by filing a supporting memorandum of law and exhibits, a declaration, and an affidavit
of service. Having reviewed Magistrate Judge Hummel's reasoning on this issue and finding no
clear error, the Court adopts this portion of the Report-Recommendation and Order.
C.
Personal Involvement
Defendants Leonard, Perlman, Graham, Hale, and Martuscello moved for summary
judgment on the claims against them based upon lack of 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)). Although a defendant that occupies a
supervisory position may not be held liable based solely on the defendant's position of authority,
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[t]he personal involvement of a supervisory defendant may be
shown by evidence that: (1) the 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).
Magistrate Judge Hummel concluded that Defendants Perlman, Leonard, and Graham
were personally involved in the alleged constitutional deprivations and should be denied
summary judgment on this ground. Magistrate Judge Hummel further concluded that a genuine
dispute of material fact existed with respect to Defendant Hale's personal involvement and that
summary judgment for Defendant Hale should also be denied on this ground. Upon review, the
Court finds no clear error or manifest injustice and adopts this portion of the ReportRecommendation and Order.3
Plaintiff agrees with Magistrate Judge Hummel's conclusions, but objects to his analysis
pertaining to Defendant Perlman's personal involvement because it did not address Defendant
Hale's interrogatory response asserting that Defendant Perlman made the decision to reduce the
number of Islamic family guest events. Dkt. No. 88-3 at 21. The Court notes that this fact is
disputed by Defendant Perlman's own interrogatory, see Dkt No. 88-3 at 40, and agrees with
Magistrate Judge Hummel's conclusion that even if Defendant Perlman did not personally make
the final decision to institute this policy, his actions in carrying out the policy were sufficient for a
finding of personal involvement at the summary judgment stage. Plaintiff also objects that
Magistrate Judge Hummel did not address the fact that "by signing into effect the CORC
decision, Defendant Hale signed into effect departmental memoranda to be acted upon
thenceforth." This fact does not substantively impact the personal involvement analysis, which
focuses not on the effect of denying a grievance, but rather whether the official "proactively
participated in reviewing the administrative appeals as opposed merely to rubber-stamping the
results." Molano v. Bezio, No. 10-CV-6481L, 2012 WL 1252630, *5 (W.D.N.Y. Apr. 13, 2012)
(quotations omitted).
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Plaintiff objects to Magistrate Judge Hummel's finding that Defendant Martuscello lacked
personal involvement in the alleged constitutional violations. Plaintiff alleges that Defendant
Martuscello was personally involved in the alleged constitutional violations because when
Defendant Martuscello served as Deputy Superintendent of Security, he created a custom of not
allowing keeplocked inmates to attend religious services "in an arbitrary and blanketed fashion"
or allowed such custom to continue. See Dkt. No. 38 at 13; Dkt. No. 93-1 at 20. Defendants
Martuscello and Shanley both attested that no such blanket policy existed and that keeplocked
prisoners' requests to attend religious services were handled on a case-by-case basis in accordance
with DOCCS Directive 4202. Dkt. No. 81-22 at 4; Dkt. No. 81-28 at 2-3. Directive 4202 directs
that "[t]he final decision to permit attendance [at congregate religious services by keeplocked
inmates] rests with the Deputy Superintendent for Security." Dkt. No. 81-27 at 4. In support of
his claim that such an impermissible blanket policy nonetheless existed and was permitted by
Defendant Martuscello, Plaintiff introduced a grievance he submitted on August 19, 2009, in
which Plaintiff claimed:
Today, at approximately 1:05 pm, I encountered D.S.S.
Martuscello, in person, while he conducted rounds on the F-3
housing unit. I informed him of my 08/08/09 and 8/15/09
submitted requests to his office. To this D.S.S. Martuscello
inquired whether I was confined via keeplock or I.P.C., to which I
informed him that I was keeplocked (for a disciplinary infraction).
In response thereto, D.S.S. Martuscello immediately, and in
absolute terms, stated that I would not be allowed to go (to religious
services) under any circumstances as I was a threat to his security.
Notingly [sic], the reasons for my infraction weren't even
mentioned/discussed.
Dkt. No. 88-3 at 53.
Viewing this evidence in the light most favorable to Plaintiff, the nonmoving party, the
Court finds it sufficient to create an issue of material fact with respect to Defendant Martuscello's
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personal involvement in the creation or continuance of the alleged unconstitutional policy.
Defendant Martuscello's alleged statement that Plaintiff would not be permitted to attend religious
services solely because he was in disciplinary keeplock can reasonably be viewed as evidence
that Defendant Martuscello knew and approved of an informal policy or custom of prohibiting all
keeplocked inmates from attending congregate religious services. Permitting an unconstitutional
policy to operate is sufficient to establish a supervisor's personal involvement in an alleged
constitutional violation. Therefore, Defendant Martuscello's motion for summary judgment on
this ground is denied.
D.
First Amendment and RLUIPA Claims
Plaintiff alleges that his First Amendment and RLUIPA rights were violated by
Defendants Perlman and Leonard when DOCCS reduced the number of Islamic holy days
designated as family events from two to one. Plaintiff also alleges that his rights were violated by
Defendants Shanley, Martuscello, Robinson, and Hale when they refused to allow Plaintiff to
attend congregate religious services while in keeplock. Finally, Plaintiff alleges that Defendants
Perlman, Leonard, Hale, and Graham violated his free exercise rights when they denied Plaintiff's
request to incorporate halal meats into his therapeutic diet.4
The First Amendment to the United States Constitution guarantees the right to free
exercise of religion. U.S. Const. Amend. I. Although "[p]risoners have long been understood to
retain some measure of the constitutional protection afforded by the First Amendment's Free
Exercise Clause," such protection is balanced against "the interests of prison officials charged
In light of Plaintiff's numerous specific objections to Magistrate Judge Hummel's
Report-Recommendation and Order based on facts and arguments from Plaintiff's reply papers
and exhibits, the Court will make de novo determinations on Plaintiff's constitutional and
RLUIPA claims.
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with complex duties arising from the administration of the penal system," and prisoner's free
exercise claims "are therefore judged under a reasonableness test less restrictive than that
ordinarily applied to alleged infringements of fundamental constitutional rights." Ford v.
McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (internal quotations and 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) (quoting Turner
v. Safley, 482 U.S. 78, 89 (1987)).
In order to prevail on a free exercise claim, a prisoner must show that the defendant's
conduct "substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467
F.3d 263, 274-75 (2d Cir. 2006).5 A burden is substantial if it interferes with a practice or tenant
that "'is considered central or important'" to the plaintiff's religious exercise. See Pugh v. Goord,
571 F. Supp. 2d 477, 499 (S.D.N.Y. 2008) (quoting Ford, 352 F.3d at 593-94). "The defendants
then bear the relatively limited burden of identifying the legitimate penological interests that
justify the impinging conduct." Id. at 275. The burden then "remains with the prisoner to 'show
that these [penological] concerns were irrational.'" Ford, 352 F.3d at 595 (quoting Fromer v.
Scully, 874 F.2d 69, 74 (2d Cir. 1989)).
In making a reasonableness determination, the court must consider the following:
As Magistrate Judge Hummel noted in his Report-Recommendation, "[i]n the Second
Circuit, it is uncertain whether the 'substantial burden' test, or a lesser 'burdened' test is employed
in carrying out a free exercise claim analysis." Dkt. No. 90 at 18 (citations omitted); see also
Holland v. Goord, 785 F.3d 215, 220 (2d Cir. 2014) ("It has not been decided in this Circuit
whether, to state a claim under the First Amendment's Free Exercise Clause, a prisoner must show
at the threshold that the disputed conduct substantially burdens his sincerely held religious
beliefs" (internal quotations omitted)). The Court need not decide which standard is appropriate
because it finds that Defendants' conduct was justified by legitimate penological interests.
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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, 482 U.S. at 89-90).
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(a). RLUIPA claims are evaluated under principles similar to those
applicable to First Amendment claims, but the RLUIPA places a higher burden on defendants,
who must show a compelling government interest advanced through the least restrictive means.
See Griffin v. Alexander, No. 9:09-CV-1334, 2011 WL 4402119, *10 (N.D.N.Y. Aug. 25, 2011)
(citation omitted). For a defendant to show that a practice is the least restrictive means, the
defendant must show that it "actually considered and rejected the efficacy of less restrictive
measures before adopting the challenged practice." Jova v. Smith, 582 F.3d 410, 416 (2d Cir.
2009) (internal quotations omitted). Nonetheless, RLUIPA does not "elevate accommodation of
religious observances over an institution's need to maintain order and safety," and courts are to
"apply the Act's standard with 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." Cutter v.
Wilkinson, 544 U.S. 709, 723 (2005) (internal quotations omitted). RLUIPA does not authorize
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claims for monetary damages against state officers in their official or individual capacities.
Holland, 758 F.3d at 224.
1. Family Guest Events
Plaintiff alleges that Defendants Perlman and Leonard substantially burdened his sincerely
held religious beliefs by removing family guest event designation from Eid-ul-Adha, a Muslim
holy day, thereby no longer permitting family guests to attend and participate in the prison's Eidul-Adha celebration.6 DOCCS stopped designating Eid-ul-Adha as a family guest event under a
policy change that reduced the number of designated family events for each recognized religion,
with the exception of the Native American religion, to one event per year.7 DOCCS implemented
the new policy after consultation with religious leaders and various DOCCS employees. Dkt. No.
81-29 at 2; Dkt. No. 81-30 at 2. Defendants Leonard and Perlman attested that the policy was
motivated by the desire to reduce the administrative costs of providing food and security for
family events and the increasing difficulty of balancing growing demand for family events by
different religions. Dkt. No. 81-29 at 2; Dkt. No. 81-30 at 2.
These interests are rationally related to the policy of limiting nearly all recognized
religions to only one family guest event per year. Plaintiff contends that reducing the number of
family events is not rationally related to reducing administrative costs because inmates pay the
facility commissary a meal charge of $1.95 per adult guest and $0.50 per child guest for family
event guests. See Dkt. No. 93-1 at 24; Dkt. No. 88-3 at 174. This argument assumes, however,
that DOCCS incurs no other costs in hosting family events. Plaintiff provides no evidence in
6
Defendants do not dispute that Plaintiff's religious beliefs are sincerely held.
The Court will address the policy's exception for Native Americans in its discussion of
Plaintiff's Fourteenth Amendment claims, infra.
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support of his related argument that the cost of holding a family guest event for Eid-ul-Adha is
insignificant. See Dkt. No. 88 at 37-38. Plaintiff also points to additions to the family events
calendar for other religions as evidence that Defendants faced no administrative burden in
balancing demand for events. See Dkt No. 88 at 34-35. This argument ignores that the new
family events were added for religions that previously had no family events designated. The fact
that the policy change enabled DOCCS to accommodate more religious groups strengthens
Defendants' claim that it was rationally related to the need to balance demand from numerous
groups. Lastly, Plaintiff's argument that the fact that no family event is currently scheduled for
the weekend on which Eid-ul-Adha is celebrated takes too narrow a view of administrative
burden, namely that DOCCS incurs no administrative burden in holding a family guest event if
the event is not in direct conflict with another guest event. See Dkt. No. 93-1 at 22.
Under the new policy, Plaintiff has alternative means of exercising his religious rights.
Plaintiff acknowledges that despite the policy change, he may continue to observe Eid-ul-Adha,
as DOCCS still holds a celebration for the holiday that incorporates a special menu, prayer, and a
day off from work. See Dkt. No. 93-1 at 24; Dkt. No. 88-3 at 145. Plaintiff introduced no
evidence that he cannot fully observe Eid-ul-Adha without family guests present. In fact, Plaintiff
admitted that when DOCCS did permit family members to attend Eid-ul-Adha, he never had a
family guest attend the celebration. See Dkt. No. 81-3 at 13.8
Further, Plaintiff proffered no alternative for accommodating his rights that would satisfy
the government's interests. His only suggested accommodations were for DOCCS to revert to its
former policy recognizing Eid-ul-Adha as a family event or to recognize all "holy day events,
Plaintiff claims that other prisoners' visitors were in fact Plaintiff's guests at unspecific
events. See id. at 68-69. He introduces no evidence in support of this claim.
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beyond the once a year restriction available for all religious groups, to those holy days in which
family and guest participation is integral or important thereto." See Dkt. No. 93-1 at 25-27.
Neither option would serve Defendants' interest in reducing fiscal and administrative burdens.
Therefore, Plaintiff has not shown that Defendants' asserted penological interests
unreasonably burdened Plaintiff's religious beliefs. Accordingly, Defendants' motion for
summary judgment on Plaintiff's First Amendment claims arising out of the DOCCS family event
policy is granted. In light of the foregoing analysis, the Court also finds that, even if the policy
change substantially burdened Plaintiff's religious exercise, Defendants' conduct advanced a
compelling government interest through the least restrictive means. Therefore, Defendants'
motion for summary judgment on Plaintiff's RLUIPA claim on this ground is also granted.
2. Attendance at Friday Services
Plaintiff alleges that Defendants Shanley and Martuscello violated his First Amendment
and RLUIPA rights by denying him permission to attend weekly Jum'ah congregate services at
Conxsackie Correctional Facility on three occasions while Plaintiff was in disciplinary keeplock
in August 2009. Plaintiff also alleges that Defendants Robinson and Hale violated his First
Amendment rights by denying him permission to attend weekly Jum'ah services at Auburn
Correctional Facility while Plaintiff was in disciplinary keeplock in May 2011.
In O'Lone v. Estate of Shabazz, while evaluating the validity of a prison regulation
limiting Muslim prisoners' ability to attend Jum'ah, the Supreme Court recognized the centrality
of Jum'ah services to the Islamic faith, noting that "[t]here is no question that respondents'
sincerely held religious beliefs compelled attendance at Jumu'ah." 482 U.S. 342, 345 (1987).
Generally, the courts "have long held that prisoners should be afforded every reasonable
opportunity to attend religious services, whenever possible." Young v. Coughlin, 866 F.2d 567,
16
570 (2d Cir. 1989). Prisoners in disciplinary confinement do not lose the right to attend religious
services solely because of their confinement; "prison officials must make individual
determinations on a case-by-case basis as to the need for exclusion." Id. (quoting Leon v. Harris,
489 F. Supp. 221, 225 (S.D.N.Y. 1980)); see also Mawhinney v. Henderson, 542 F.2d 1, 3 (2d
Cir. 1976) ("[N]ot every prisoner in segregation can be excluded from chapel services; because
not all segregated prisoners are potential troublemakers, the prison authorities must make some
discrimination among them").
However, courts have consistently found protecting institutional security and inmate
safety to be a legitimate, compelling penological interest justifying the denial of attendance at
religious services. See, e.g., O'Lone, 482 U.S. 342, 350 (finding that the regulation that forced
prisoners to miss Ju'mah services was "justified by concerns of institutional order and security");
Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) ("In this case, appellant was in SHU for
fighting with another inmate. Given that appellant posed a threat to the safety of other prisoners
and that the state forbade only congregate religious services and not his solitary practice of
religion, the state's purpose was legitimate"); Salahuddin, 467 F.3d at 277 ("[P]rison officials
must have been pursuing the interest in inmate safety when limiting [the plaintiff]'s religious
exercise. The defendants' burden on summary judgment is to 'point[] to [something] in the record
suggesting that the [denial of religious exercise] was viewed as preventing [threats to inmate
safety]" (quoting Turner, 482 U.S. at 98)).
In this case, Plaintiff contends that Defendants denied his requests to attend Jum'ah while
in keeplock pursuant to an unofficial blanket policy of denying all keeplocked prisoners' requests
to attend congregate religious services. Defendants Shanley and Robinson both attested that they
address each keeplocked inmate's request to attend congregated services on a case-by-case basis,
17
pursuant to DOCCS Directive 4202, and denied Plaintiff's requests because he was determined to
have presented a threat to the operation of the facility. See Dkt. No. 81-22; Dkt. No. 81-31.
Specifically, Defendant Shanley identified Plaintiff's disciplinary history, including threatening
violent conduct, a physical interaction with a correctional officer, and creating a disturbance
while being escorted to a religious service, and Plaintiff's reason for being in keeplock, which was
threatening physical violence toward correction officers and urging inmates to participate in
detrimental actions, as the basis for denying Plaintiff's requests. Dkt No. 81-22. Defendant
Robinson indicated that he denied Plaintiff's requests because of Plaintiff's October 2010 violent
conduct, fighting, and creating a disturbance and April 2010 assault of prison staff. Dkt. No. 8131.9 Morever, Defendant Martuscello attested that Coxsackie Correctional Facility had no
blanket policy of denying keeplocked inmates' requests. Dkt. No. 81-28.
Defendants' contentions that Plaintiff's requests were denied on an individual basis are
supported by Plaintiff's own exhibits, including DOCCS Directive 4202, which describes the
process by which keeplocked inmates can request to attend religious services, see Dkt. No. 88-3
at 61; two memoranda from Defendant Shanley indicating that "[a]fter a careful review of
[P]laintiff's facility records, and for the safety and security of the facility, I have denied
[Plaintiff]'s request to attend Religious Services while he is on keeplock status," Dkt No. 88-3 at
Plaintiff argues that "Salahuddin v. Goord . . . rejected the practice of prison officials
justifying preclusion from services due to infractions incurred at other facilities besides the one at
which services are held." Dkt. No. 93-1 at 31. However, in Salahuddin, the Second Circuit
reversed a grant of summary judgment for the defendants because they claimed they denied the
plaintiff's request to attend services based on safety considerations, but "[did] not point to any
record evidence that suggests that the denial of religious exercise while in disciplinary keeplock .
. . was actually viewed as preventing threats to inmate safety. . . . Post hoc justifications with no
record support will not suffice." 467 F.3d at 276-77. As the Court discusses below, there is
ample record evidence here that Defendants' denials were actually based on safety concerns, and
the Court does not read Salahuddin as requiring safety concerns to be based solely on an inmate's
history at the facility at which he is in keeplock.
9
18
55, 58; and Plaintiff's grievances, Dkt. No. 88-3 at 53-54, 57. The fact that the Inmate Grievance
Resolution Committee recommended that one of Plaintiff's grievances be accepted in part because
Defendant Shanley should have provided Plaintiff with a fuller explanation for the basis of the
denial of Plaintiff's request does not make Defendant Shanley's denial defective. Rather, the
Court finds ample evidence in the record, including the above-quoted memoranda, that Defendant
Shanley denied Plaintiff's requests to protect facility safety and security. The only evidence
Plaintiff introduced of an implicit blanket policy of denying all keeplocked inmates' requests was
his alleged conversation with Defendant Martuscello. Plaintiff's unsupported assertion is not
sufficient to create a genuine issue of material fact regarding the existence of such a policy, which
Defendants unanimously denied.
Finally, the Court acknowledges that Plaintiff had no alternative means of participating in
Ju'mah, as Ju'mah requires congregate worship. However, the Supreme Court in O'Lone rejected
this argument as being fatal to the reasonableness of a prison regulation restricting prisoners from
attending Ju'mah that protected institutional security and explained:
Our decision in Turner also found it relevant that "alternative
means of exercising the right . . . remain open to prison inmates."
There are, of course, no alternative means of attending Jumu'ah;
respondents' religious beliefs insist that it occur at a particular time.
But the very stringent requirements as to the time at which Jumu'ah
may be held may make it extraordinarily difficult for prison
officials to assure that every Muslim prisoner is able to attend that
service. While we in no way minimize the central importance of
Jumu'ah to respondents, we are unwilling to hold that prison
officials are required by the Constitution to sacrifice legitimate
penological objectives to that end. . . . Here, similarly, we think it
appropriate to see whether under these regulations respondents
retain the ability to participate in other Muslim religious
ceremonies.
482 U.S. at 351-52 (citation omitted). Plaintiff's ability to worship and pray individually in his
keeplock cell thus afforded him some alternative means of exercising his religious rights, and
19
Plaintiff has suggested no alternative or less restrictive means of protecting institutional security
that would have permitted him to participate in Ju'mah.
Based on the foregoing, the Court finds that the burdens on Plaintiff's religious exercise
were reasonably related to legitimate penological objectives, and Defendants had no less
restrictive means of furthering those objectives. Defendants' motion for summary judgment on
Plaintiff's First Amendment and RLUIPA claims on this issue is therefore granted.
3. Dietary Restrictions
Plaintiff contends that Defendants Perlman, Leonard, Hale, and Graham violated his First
Amendment and RLUIPA rights by failing to incorporate halal meats into the therapeutic diet
Plaintiff receives pursuant to a physician's approval.
Prison officials are required, at minimum, to provide inmates with nutritionally adequate
meals, but otherwise retain "considerable discretion" over dietary decisions. Walker v. Fischer,
No. 10-CV-01431, 2012 WL 1029614, *6 (N.D.N.Y. Mar. 26, 2012). However, the Second
Circuit has "clearly established that a prisoner has a right to a diet consistent with his or her
religious scruples." Ford, 352 F.3d at 597 (citations omitted). "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 v. McGuinnis, 357 F.3d 197, 203
(2d Cir. 2004). Even so, courts "are reluctant to grant dietary requests where the cost is
prohibitive, or the accommodation is administratively unfeasible." Benjamin, 905 F.2d at 579
(citations omitted). Further, "[c]ourts have consistently held that DOCCS' Religious Alternative
Meal ["RAM"] 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) (citation omitted).
20
In the present matter, Plaintiff currently receives the therapeutic "Controlled A" diet,
which is high fiber, low cholesterol/low fat, and low sodium, at the request of Plaintiff's health
care provider. The Controlled A menu contains meats that are haram, or prepared in a manner
that violates the tenants of Islam. Plaintiff requested that Defendants provide him with a special
diet combining the Controlled A diet with halal meats, which are prepared in a manner consistent
with the laws of Islam. Defendants refused his request, noting that per the DOCCS Medical
Nutritional Therapy Manual, "[r]eligious menus are not available in combination with any
therapeutic diet restrictions. [M]any of the religious selections are not compatible with
therapeutic diet requirements." Dkt. No. 88-3 at 85. Plaintiff contends he is thus forced to choose
between a diet suited to his medical needs and one which satisfies the dictates of his religious
beliefs.
Plaintiff does not contend that Islam requires him to consume halal meat with any specific
frequency or indeed at all, but rather that it prohibits him from consuming haram meat. The RAM
diet, which courts have consistently approved of as sufficient to meet Muslim prisoners' dietary
and religious needs, only includes one halal meat entree per week. See Dkt. No. 81-34 at 3.
Plaintiff does not dispute that he remains free to choose the RAM diet, which complies with his
religious beliefs, and does not claim that he is forced to consume the haram meats on the
Controlled A diet when they are provided to him.10 However, because haram meats are a
Plaintiff claims that the RAM diet causes him adverse digestive and/or gastrointestinal
reactions but provides no evidence in support of this claim. See Dkt. No. 88 at 15. Notably,
Plaintiff was placed on the Controlled A diet because of his high blood sugar and creatine levels,
not because of any gastrointestinal complications produced by the general population or RAM
diets. See id. at 10. Further, in response to Plaintiff's arguments that the soy-based components
of the RAM diet make the RAM diet generally unsuitable to meet prisoners' nutritional needs, the
Court again notes that "[c]ourts have consistently held that DOCCS' Religious Alternative Meal
["RAM"] is sufficient to sustain Muslim prisoners' good health." DeBlasio, 2011 WL 4478515 at
*20.
10
21
prevalent component of the Controlled A diet, and the RAM diet would not fulfill Plaintiff's
specific medical needs, the Court finds that Plaintiff's religious exercise is burdened by
Defendants' refusal to provide him a meal option suited to his therapeutic needs that also complies
with his religious beliefs. See Dkt. No. 81-37 (listing two typical weekly menus for the
Controlled A diet, each of which feature non-halal meats in at least twelve meals).
Defendants' refusal to serve Plaintiff a special menu combining elements of the RAM and
Controlled A diets is justified by the legitimate penological concern of meeting the disparate
dietary needs of approximately 54,700 inmates in an economically viable way. See Dkt. No. 816. "[I]t is well established that DOCS has a legitimate interest in cost-effectively meeting the
religious dietary needs of multiple inmate groups." Majid v. Fischer, No. 07-CV-4585, 2009 U.S.
Dist. LEXIS 71616, *18-19 (S.D.N.Y. July 31, 2009); see also Hamilton v. Smith, No. 9:06-CV0805, 2009 WL 3199520, *4 (N.D.N.Y. Sept. 30, 2009) ("It is not a reasonable demand that
prison officials supply every inmate with their personal diet requests for every meal" (internal
quotations omitted)). There is clearly a rational relationship between this interest and the policy,
which offers numerous menus tailored to meet different inmates' needs in a cost-effective manner
by following a standardized state-wide menu prepared under considerations of "the palatability of
the food to inmates, nutritional quality, accommodation of religious requirements and therapeutic
needs, security implications, and cost containment." Dkt. No. 81-34 at 2. Defendants' refusal to
permit Plaintiff to incorporate RAM entrees of his choosing into his diet also serves the legitimate
purpose of maintaining the therapeutic integrity of the medical diet. For example, Elizabeth
Culkin, assistant director of the DOCCS Office of Nutritional Services and a registered dietitian,
attested that the halal chicken patty offered on the RAM diet that Plaintiff sought to have included
in his diet was too high in sodium to meet the restrictions of the Controlled A diet. Id. at 5.
22
Second, Plaintiff does not contest that Defendants make halal meat available to Muslim
prisoners, including Plaintiff, numerous times per year pursuant to special menus for religious
observances. Ms. Culkin attested that Muslim inmates may also obtain halal meats to supplement
their diets through care packages or their facility's commissary. Dkt. No. 81-34 at 3. Although
Plaintiff alleges that halal meat is not sold at his current facility's commissary, Ms. Culkin attested
that inmates may petition their facilities to have specific products sold at the commissary. Id.
Therefore, Plaintiff has alternative means of exercising his religious beliefs.
Third, incorporating nutritionally appropriate halal entrees into the Controlled A menu
would burden prison administrative and fiscal resources. Ms. Culkin attested that the cost of a
single low sodium halal chicken entree suitable to the Controlled A diet is $0.78, while a single
comparable non-halal chicken entree costs $0.43. Id. at 5. Ms. Culkin calculated that making this
substitution just once per week for the 2,890 inmates currently on the Controlled A and B diets
would cost DOCCS $52,598 annually. Id. Plaintiff contends that such a substitution would in
fact cost DOCCS only $109.20 annually because only three Controlled A diet recipients at the
Attica Correctional Facility are Muslim. Dkt. No. 88 at 24. However, Plaintiff provides no
support for his contention that only three Muslim prisoners at his facility require a therapeutic
diet, and overlooks the fact that DOCCS operates its menus on a standardized, state-wide basis in
the interest of cost containment. Further, the Court agrees with the Hamilton court, which found
that under similar circumstances, "'[e]ven where the marginal cost and administrative burden of
providing a specialized religious diet would be small or negligible, a rational nexus exists
between a prison's dietary policies and its legitimate administrative and budgetary concerns.'"
Hamilton, 2009 WL 3199520 at *5 (quoting Furnace v. Arceo, No. C 06-4209, 2008 WL 618907,
*8 (N.D. Cal. Mar. 3, 2008)).
23
Plaintiff's proffered alternatives to accommodate his rights include that DOCCS replace
the haram proteins in all prison menus with halal proteins. Dkt. No. 88 at 26. In light of Ms.
Culkin's uncontroverted assertion that halal proteins are more expensive than non-halal proteins,
this option would not satisfy Defendants' legitimate penological interest in meeting prisoners'
nutritional needs in a cost-effective manner. See Dkt. No. 81-34. A second alternative Plaintiff
suggests is that DOCCS provide him with Ensure dietary supplements. Dkt. No. 88 at 27.
Plaintiff has proffered no evidence that he requested such supplements or that Defendants denied
him such supplements under their current policy. Finally, Plaintiff suggests that DOCCS provide
Muslim inmates with prepackaged halal meals. Dkt. No. 88 at 26. Plaintiff provides no evidence
that these prepackaged meals are consistent with the restrictions of his therapeutic diet, are
available to DOCCS for purchase, or would be cost-effective. Thus, Plaintiff has offered no
viable less restrictive means of accommodating his rights that are consistent with Defendants'
valid penological interests.
For the above reasons, Defendants' motion for summary judgment on Plaintiff's free
exercise and RLUIPA claims on this issue is granted.
E.
Equal Protections Claims
Plaintiff contends that his rights under the Fourteenth Amendment were violated by
Defendants Perlman and Leonard when DOCCS reduced the number of Islamic holy days
designated as family events but did not similarly reduce the number of Native American religious
family guest events. Plaintiff also contends that Defendants Perlman, Leonard, Hale, and Graham
violated his rights when they refused to incorporate halal meats into Plaintiff's therapeutic diet but
provided Jewish inmates kosher meals "satisfying both their medical and religious needs." Dkt.
No. 47 at 17-18; Dkt. No. 47-4 at 10.
24
The Fourteenth Amendment to the United States Constitution provides in relevant part
that "nor [shall any State] deny to any person within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV, § 1. "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." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.
2005). In the prison context, "the Supreme Court has specifically held that . . . the Equal
Protection clause does not require that 'every religious sect or group within a prison . . . must have
identical facilities or personnel.'" Pugh, 571 F. Supp. 2d at 502 (quoting Cruz v. Beto, 405 U.S.
319, 322 n.2 (1972)). The Second Circuit has applied the Turner standard to equal protection
claims, such that "even if plaintiffs can demonstrate that two groups are similarly situated,
disparate treatment may still be warranted if the government can demonstrate that the distinctions
are 'reasonably related to legitimate penological interests.'" Id. (quoting Benjamin, 905 F.2d at
572). This standard requires courts to "determine whether 'the groups are so similar that
discretion has been abused.'" Benjamin, 905 F.2d at 575 (quoting Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U.S. 119, 136 (1977)).
1. Family Guest Events
In this case, Plaintiff claims that Defendants violated his equal protection rights by
reducing the number of religious events at which family guests are permitted for Muslim inmates
but not Native American inmates. It is undisputed that under the new policy, DOCCS reduced the
number of religious events designated as family guest events to one event per year for all
recognized religions except the Native American religion. Defendants argue that the exception
for Native Americans is justified because in 1999, DOCCS agreed by stipulation to designate
eight Native American holy days as family guest events, pursuant to DOCCS' recognition that
25
"Native Americans believe that family . . . is important to the religious celebration and for that
reason it does not separate religiously from family celebrations and allows the eight sacred
seasonal holy days of the Longhouse to be celebrated in a unique way as described herein." See
Dkt. No. 81-4 at 12.
Plaintiff contends that Muslim and Native American inmates are similarly situated
because both "require family and guest participation as integral aspects of their holy day
celebrations." Dkt. No. 93-1 at 58. On the other hand, Plaintiff asserts that Muslim inmates and
the other religious groups that had family event days reduced are not similarly situated because
the other religious groups "do not have any set holy day as a family event, but decide which ones
they will celebrate as such at some time throughout the year." Id. at 59.11 Defendant Leonard
acknowledged in his response to Plaintiff's interrogatories that the DOCCS Muslim Chaplains
objected to the reduction in family events because "religious holidays can be considered family
days." Dkt. No. 88-3 at 47. However, Defendant Hale indicated that the decision to reduce all
religious groups to one family guest event was made after Defendant Perlman "determined that
having only one family day event in no way limited the religious practices of the inmate
population of any religious faith." Id. at 21. This statement is consistent with the denial of
Plaintiff's grievance regarding the change in family event policy, which stated, in relevant part:
Per Ministerial Services, 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
Plaintiff's evidence in support of this claim is his own recounting of personal
conversations he had with Protestant and Catholic inmates, see Dkt. No. 88 at 33-34, the fact that
the annual holy day given family event status for the Protestant and Catholic religions can vary
annually, see Dkt. No. 88-3 at 157, 161, and a page from a text by Dr. Mandouh N. Mohamed, an
associate professor at American Open University, which states that one common error concerning
the celebration of Eid-ul-Adha Muslims may make is "[n]ot accompanying family members to
attend Eiid," Dkt. No. 88-3 at 102.
11
26
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. 73-3 at 31. Defendants have consistently justified the policy's different treatment of
Native American inmates and inmates practicing all other recognized religions as based on a
legitimate penological interest of accommodating what DOCCS perceives as a unique need to
incorporate family members into Native American religious celebrations, pursuant to a stipulation
DOCCS has adhered to since 1999. This interest is rationally related to the DOCCS policy
exception for Native American holy days. Plaintiff has introduced no evidence that Defendants'
refusal to permit a similar exception for Muslims was the result of intentional or purposeful
discrimination.
Morever, Plaintiff has failed to introduce any evidence demonstrating that he is so
similarly situated with the Native Americans such that Plaintiffs abused their discretion.
Accordingly, the Court has no basis for finding that Defendants abused their discretion in
adhering to a stipulation recognizing eight annual family guest events for Native American
inmates. Therefore, Defendants' motion for summary judgment on this ground is granted.
2.
Dietary Restrictions
Plaintiff also contends that Defendants violated his equal protection rights by refusing to
incorporate halal proteins from the RAM diet into Plaintiff's therapeutic diet while providing
Jewish inmates the "hot kosher" meal option at Green Haven Correctional Facility. Plaintiff
claims that the hot kosher program is provided to Jewish prisoners whose medical needs render
the standard kosher menu, known as the Cold Alternative Diet ("CAD"), inappropriate. However,
Plaintiff proffered no evidence in support of his claim that the hot kosher diet satisfies both the
religious and dietary needs of Jewish inmates requiring specific therapeutic diets, as Plaintiff
27
requires. The record establishes only that the hot kosher meal program satisfies the Jewish
dietary doctrine, and is devoid of any evidence that the program satisfies specific medical needs
not met by the CAD. See Dkt. No. 88-3 at 22. In fact, an internal DOCCS communication
regarding the Green Haven hot kosher program offered by Plaintiff as evidence of disparate
treatment indicates that the program is intended for "more observant and religiously astute"
inmates, not inmates requiring therapeutical diets. Dkt. No. 88-3 at 98. Similarly, DOCCS
Directive 4202 describes eligibility to participate in the hot kosher program as "based upon past
religious history and approval by the Office of Ministerial and Family Services," not medical
concerns. Id. at 108. Further, the record indicates that all religious diets are strictly followed and
cannot be combined with therapeutic menus, with no exception for Jewish inmates or reference to
the hot kosher diet as a means of accommodation. See Dkt. No. 88-3 at 23, 29, 77. In the absence
of any support for Plaintiff's unsubstantiated claim that Jewish inmates with medical dietary needs
receive a special diet that accommodates their specific therapeutic and religious needs, Plaintiff
has failed to show any disparity in treatment and raises no genuine issue of material fact on his
equal protection claim. Based on the foregoing, the Court grants Defendants' motion for
summary judgment on this ground.
F.
Qualified Immunity
Defendants contend that even if Plaintiff established a constitutional violation, they are
entitled to qualified immunity. Qualified immunity "shields government officials from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (citations omitted).
For a constitutional right to be clearly established for purposes of
determining whether an officer is entitled to qualified immunity, the
28
contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.
This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.
Mollica v. Volker, 229 F.3d 366, 370-71 (2d Cir. 2000) (quoting Anderson v. Creighton, 483 U.S.
635, 638 (1987)) (internal quotations and emphasis omitted). "Where the right at issue in the
circumstances confronting [the government officials] . . . was clearly established but was violated,
the officers will nonetheless be entitled to qualified immunity 'if . . . it was objectively reasonable
for them to believe their acts did not violate those rights.'" Zellner v. Summerlin, 494 F.3d 344,
367 (2d Cir. 2007) (quotation and other citation omitted).
"Although a mere mistake in the performance of an official duty may not deprive the
officer of qualified immunity, the doctrine does not shield performance that either (a) was in
violation of clearly established law, or (b) was plainly incompetent." Manganiello v. City of New
York, 612, F.3d 149, 165 (2d Cir. 2010) (citations omitted). "With respect to both the legal
question and the matter of competence, the officials' actions must be evaluated for objective
reasonableness. . . . That is, '[e]ven if the right at issue was clearly established in certain respects
. . . an officer is still entitled to qualified immunity if "officers of reasonable competence could
disagree" on the legality of the action at issue in its particular factual context.'" Id. (quotations
omitted).
The determination of whether an official's conduct was objectively reasonable is a mixed
question of law and fact. See Zellner, 494 F.3d at 367 (citing Kerman v. City of New York, 374
F.3d 93, 109 (2d Cir. 2004)) (other citations omitted).
The ultimate question of whether it was objectively reasonable for
the officer to believe that his conduct did not violate a clearly
established right, i.e., whether officers of reasonable competence
29
could disagree as to the lawfulness of such conduct, is to be decided
by the court. However, '[a] contention that . . . it was objectively
reasonable for the official to believe that his acts did not violate
those rights has "its principle focus on the particular facts of the
case."'
Id. (quotation and other citations omitted).
If there is no dispute as to any material fact, the issue of whether the official's conduct was
objectively reasonable is an issue of law to be decided by the court. See id. at 368 (citation
omitted). Any unresolved factual issues, however, must be resolved by the jury. See id. (quoting
Kerman, 374 F.3d at 109) (other citations omitted). Once the court has received the jury's
decision as to "what the facts were that the officer faced or perceived," the court must then "make
the ultimate legal determination of whether qualified immunity attaches on those facts."
Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (quotation omitted); see also Lennon v. Miller,
66 F.3d 416, 421 (2d Cir. 1995) (quotation omitted).
In the present matter, Magistrate Judge Hummel concluded that because Plaintiff's
allegations did not show that Defendants violated Plaintiff's constitutional rights, Defendants are
entitled to qualified immunity. Upon review, the Court finds no clear error or manifest injustice
and adopts this portion of the Report-Recommendation and Order.
In addition, the Court finds that a reasonable official would not believe that he was
violating Plaintiff's clearly established constitutional rights by the conduct described here. As to
the family guest events, Defendants reduced the number of family event days for all religions,
with the exception of the Native American religion, because of the increased number of requested
family events, their associated costs, and the limited number of available weekends on which to
hold the events. The exception for the Native American religion was made because of a
stipulation in place and the centrality of family participation to Native American religious
30
holidays. In light of these legitimate penological interests, a reasonable official would not
conclude that implementing or following the policy violated Plaintiff's constitutional rights.
As to Plaintiff's restriction from Jum'ah, an inmate's general right to attend congregate
religious services is clearly established. However, a prison's ability to restrict that right based on
legitimate security concerns is also well-established. The law requires an individual
determination of the risk a keeplocked inmate poses to security. Therefore, a reasonable official
would not understand denying Plaintiff's requests to attend Jum'ah while in keeplock to violate
Plaintiff's rights where Defendant made individual determinations that Plaintiff posed a threat to
facility security.
As to the failure to incorporate halal meals into Plaintiff's therapeutic diet, an objectively
reasonable officer would not believe that the options provided to Plaintiff violated his rights.
This finding is supported by the fact that the RAM diet is widely accepted by courts as
nutritionally and religiously appropriate for Muslim inmates, by the availability of other sources
of halal meat to Plaintiff, and by the uniform manner in which DOCCS prohibited combinations
of therapeutic and religious diets.
Based on the foregoing, the Court finds that Defendants are entitled to qualified immunity,
and grants Defendants' motion for summary judgment on this alternative ground.
G.
Preliminary Injunctive Relief
Finally, Magistrate Judge Hummel concluded that Plaintiff was not entitled to a temporary
restraining order or preliminary injunction. The Court has reviewed Magistrate Judge Hummel's
reasoning and conclusion on this issue and finds no clear error. Accordingly, this portion of the
Report-Recommendation is adopted and Plaintiff's motion for a temporary restraining order and
preliminary injunction is denied.
31
V. CONCLUSION
For the reasons stated above, the Court arrives as the same conclusions as Magistrate
Judge Hummel as to the proper disposition of the parties' respective motions on full review and
incorporation of Plaintiff's opposition papers. Although the Court disagrees with Magistrate
Judge Hummel's recommendation regarding the personal involvement of Defendant Martuscello,
the Court's finding on this issue does not alter the Court's conclusion that Defendants are entitled
to summary judgment on all counts of Plaintiff's complaint. Therefore, the Court hereby
ORDERS that Plaintiff's motion for reconsideration is GRANTED and the Court's Order
dated March 13, 2014 is VACATED; and the Court further
ORDERS that the Report and Recommendation by United States Magistrate Judge
Christian F. Hummel (Dkt. No. 90) is rejected in part and accepted in part for the reasons set forth
herein; and the Court further
ORDERS that Plaintiff's motion for partial summary judgment (Dkt. No. 73) is DENIED;
and the Court further
ORDERS that Defendants' cross motion for summary judgment (Dkt. No. 81) is
GRANTED; and the Court further
ORDERS that Plaintiff's motion for a temporary restraining order and preliminary
injunction (Dkt. No. 79) is DENIED; 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
32
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: December 18, 2014
Albany, New York
33
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