Guillory v. Ellis et al

Filing 78

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Baxter's March 22, 2012 Report-Recommendation (Dkt. No. 54 ) is ADOPTED in its entirety for the reasons stated therein. ORDERED, that Plaintiff's motions for preliminary injunctive relief (Dkt. No. 35 ) and for summary judgment (Dkt. No. 48 ) are DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 7/9/12. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
PATRICK GUILLORY,
Plaintiff,
vs.

9:11-CV-600
(MAD/ATB)

KURT ELLIS, Cleric, Mid-State Correctional
Facility; KYLE READY, Correctional Officer,
Mid-State Correctional Facility; THEDA KUPIEC,
Senior Mail Room Supervisor, Mid-State
Correctional Facility; SHEILA MARLENGA,
Facility Steward, Mid-State Correctional Facility;
MAUREEN BOLL, Deputy Commissioner,
Department of Corrections and Community
Supervision; and BRIAN FISCHER,
Commissioner, Department of Corrections and
Community Supervision,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PATRICK GUILLORY
09-B-0714
Gouverneur Correctional Facility
Scotch Settlement Road
P.O. Box 480
Gouverneur, New York 13642
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

WILLIAM J. MCCARTHY, JR., AAG

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION
On November 4, 2011, Plaintiff pro se filed a motion for a Temporary Restraining Order
("TRO"), and on December 29, 2011, Plaintiff filed a motion for summary judgment relating to
his civil rights complaint. In his civil rights complaint, Plaintiff alleges that Defendants subjected
him to religious discrimination, denied him access to courts, and retaliated against him for
exercising his First Amendment Rights. See Dkt. No. 48-1; Dkt. No. 54 at 1.
Magistrate Judge Baxter issued a Report-Recommendation dated March 22, 2012,
recommending that the Court deny both motions. See Dkt. No. 54 at 2. Currently before the
Court are Plaintiff's objections to Magistrate Judge Baxter's March 22, 2012 ReportRecommendation.1

II. BACKGROUND
A.

Factual Background
In a September 27, 2011 Decision and Order, the Court dismissed some of Plaintiff's

claims "with prejudice" and some "without prejudice with leave to replead," and allowed the
following claims to proceed without amendment to the complaint:
(1)

Plaintiff's First Amendment Free Exercise Clause and Religious Land Use and
Institutionalized Persons Act ("RLUIPA")2 claim against Defendant Ready
regarding the events of December 7, 2010;

(2)

Plaintiff's First Amendment Free Exercise Clause and RLUIPA claims against
Defendant Ellis regarding the events of March 20, 2011;

Plaintiff's objections to Magistrate Judge Baxter's Report-Recommendation were filed
with the Court on March 27, 2012, as well as supplemental objections to the same, filed with the
Court on April 3, 2012 and May 21, 2012. See Dkt. Nos. 56, 58 & 70.
1

2

42 U.S.C. § 2000cc (2006).
2

(3)
(4)

Plaintiff's claim that Defendant Ready denied Plaintiff the right to attend a
religious service on December 7, 2010 in retaliation for filing a grievance;
Plaintiff's Equal Protection claim against Defendant Ready;

(5)

Plaintiff's claim that Defendants Kupiec and Marlenga lost or destroyed Plaintiff's
property in retaliation for filing grievances;

(6)

Plaintiff's claim that Defendants Kupiec and Marlenga interfered with Plaintiff's
right to send and receive mail;

(7)

Plaintiff's claim that Defendants Kupiec and Marlenga denied Plaintiff access to
the courts, and

(8)

Plaintiff's claims against defendants Fischer and Boll (except those claims relating
to the allegedly inadequate grievance system).

See id. at 41 n.11. For a more complete discussion of the underlying claims, the Court directs the
parties to the Court's September 27, 2011 Decision and Order.

B.

Magistrate Judge Baxter's Report-Recommendation
In his Report-Recommendation date March 22, 2012, Magistrate Judge Baxter

recommended that the Court deny Plaintiff's motions for summary judgement and for a TRO. See
Dkt. No. 54 at 2.
Regarding the current motion for a TRO, this is the third of its kind that Plaintiff has filed.
See Dkt. 35; Dkt. No. 54 at 3 n.3. Magistrate Judge Baxter noted that the Court previously denied
Plaintiff's other two motions for injunctive relief based on Plaintiff's transfer from Mid-State
Correctional Facility to Gouverneur Correctional Facility. See Dkt. No. 54 at 5. Citing to Day v.
Chaplin, 354 Fed. Appx. 472, 473 (2d Cir. 2009), the Court held that an inmate's request for
injunctive relief against a particular correctional facility becomes moot upon transfer or discharge
to a different correctional facility. As with his previous motions, Magistrate Judge Baxter equally
found that Plaintiff's third motion for a TRO is moot. See Dkt. No. 54 at 5.
3

Magistrate Judge Baxter based his decision on several factors, including that the motion
for injunctive relief was not directed at the original defendants because Plaintiff had been
transferred to a new correctional facility, and the "'new' alleged deprivations" that had occurred
after the issuance of the Court's previous order "were over." See id. at 5-6. Magistrate Judge
Baxter also found that Plaintiff's concerns of possible future retaliation are "too speculative to
warrant injunctive relief." See id. at 6 (citing Smolen v. Dildine, No. 11-CV-6434, 2011 WL
6030112, *2 (W.D.N.Y. Dec. 5, 2011) (other citations omitted)).
As to the motion for summary judgment, Magistrate Judge Baxter's ReportRecommendation recommends that the Court find that there are questions of fact remaining with
regards to certain claims, and that Plaintiff has not met his burden entitling him to summary
judgment with respect to other claims. See id. at 10, 11, 12, 16.
Regarding the claims involving an alleged violation of Plaintiff's First Amendment Free
Exercise rights under RLUIPA, Magistrate Judge Baxter recommended, with respect to the
December 7, 2010 incident involving Defendant Ready,3 that "[P]laintiff's own exhibits show that
there is a question of fact regarding these issues." See id. at 9-10. With respect to the March 20,
2011 incident involving Defendant Ellis,4 Magistrate Judge Baxter examined Plaintiff's grievance,
and the investigation report of that grievance, which indicated that the Rabbis arrived late for the

On December 7, 2010, Plaintiff was denied attendance to religious services by Defendant
Ready despite his name appearing on a call-out list for such services. See Dkt. No. 54 at 9-10
(citing Compl. at ¶¶ 37-47).
3

On March 20, 2011 Plaintiff was permitted a scheduled visit with a Rabbi for a Purim
celebration, but the service was cut short by Defendant Ellis. See Dkt. No. 54 at 10 (citing
Compl. ¶ 65). Plaintiff filed a grievance with Mid-State's Superintendent regarding Defendant
Ellis' action. See Dkt. 48-1 at ¶¶ 19, 20.
4
4

Purim celebration.5 See Dkt. No. 48-2, Ex. B. Magistrate Judge Baxter concluded that it is clear
a question of fact remains regarding Defendant Ellis' conduct, and thus Plaintiff's motion should
be denied. See Dkt. No. 54 at 11.
Regarding the claims involving retaliation, Magistrate Judge Baxter stated that the "fact
that corrective action was taken after a grievance by plaintiff, without more, does not prove that a
constitutional or statutory violation occurred." See id. Additionally, although an "alleged adverse
action occurred in close proximity to the protected conduct," this does not "necessarily prove
plaintiff's claim by a preponderance of the evidence." See id. at 12 (citing Davis v. Goord, 320
F.3d 346, 352-54 (2d Cir. 2003); Jackson v. Goord, No. 06-CV-6172, 2011 WL 4829850, *17
(W.D.N.Y. Oct. 12, 2011); Brown v. Graham, No. 9:07-CV-1353, 2010 WL 6428251, *16-20
(N.D.N.Y. Mar. 30, 2010)). Accordingly, Magistrate Judge Baxter recommended that the Court
find Plaintiff is not entitled to summary judgment on his retaliation claims. See id.
Addressing the access to courts/mail claims, Magistrate Judge Baxter noted that a
constitutional violation of denying access to the courts requires that Plaintiff show Defendants'
conduct was deliberate and malicious, and resulted in injury to Plaintiff. See id. at 13-14 (citing
Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008)). Magistrate Judge Baxter
recommended that the Court find that a question of fact still exists, noting that just because
Plaintiff received a reimbursement for the certified mail from Defendant Kupiec does not mean
she was responsible for the error. See id. at 14.6 As such, Magistrate Judge Baxter determined

5

The Purim celebration commenced upon the arrival of the Rabbis. See Dkt. No. 48-2,

Ex. B.
Magistrate Judge Baxter also noted that Plaintiff filed a motion to dismiss his own
complaint with prejudice in his case before the Court of Claims. See id. at 14. Magistrate Judge
Baxter stated that "Plaintiff cannot ask the Court of Claims to dismiss his action and then blame
6

(continued...)

5

that a question of fact exists regarding causation in Plaintiff's access to the courts claim. See id. at
15. Magistrate Judge Baxter also came to the same conclusion regarding Plaintiff's claim that
Defendant Kupiec destroyed his mail in retaliation for his complaints. See id.
With respect to the claims made against the supervisory officials, Magistrate Judge Baxter
noted that "[p]ersonal involvement is a prerequisite to the assessment of damages in a section
1983 case, and respondeat superior is an inappropriate theory of liability." See id. at 16 (citing
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)) (other citations omitted). Magistrate Judge
Baxter recommended the Court find that, "[b]ecause questions of fact remain regarding the
individuals who allegedly committed the violations, and [D]efendants' Boll and Fischer's liability
depends on the liability of their subordinates, [P]laintiff has not shown that he is entitled to
summary judgment against these two [D]efendants." See id. at 17.

C.

Plaintiff's objections to Magistrate Judge Baxter's Report-Recommendation
Plaintiff filed objections to Magistrate Judge Baxter's March 22, 2012 Report-

Recommendation on March 27, 2012, and supplemental objections on April 3, 2012. See Dkt.
No. 56; Dkt. No. 58. Plaintiff's sixteen objections are as follows: 1) his request for injunctive
relief was, in fact, directed at the original Defendants in the complaint; 2) his motion for a TRO is
seeking to maintain the status quo regardless of whether the alleged deprivations are new, old, or
pending; 3) he was not merely speculating about retaliation after the Court issued its September
27, 2011 Order, after which he was allegedly denied food for 104 hours; 4) he has met his burden
for the Court to issue a TRO; 5) Defendants' failure to submit an affidavit in opposition to

6

(...continued)

the defendant for the 'injury'" if such injury does in fact exist. See id. at 15.
6

summary judgment and Defendants' had an adequate opportunity to conduct discovery; 6) the
Court is promoting discovery abuse by issuing the Report-Recommendation since Defendants'
request for an extension of time was not granted, nor has the pretrial discovery and scheduling
order been amended for a continuance; 7) the Report-Recommendation prejudicially advocates
for Defendants to be given an extension of time to respond to discovery, to be given an extension
of time to respond to the application for summary judgment, and to be given the chance to affix
an affidavit to support such extension; 8) summary judgment regarding the retaliation claims
against Defendant Ready should be because on the Department of Corrections and Community
Supervision ("DOCCS") Office of Counsel's response indicating that corrective action was taken
in response to Plaintiff's grievance and this is an admission to malfeasance on Defendant Ready's
part; 9) summary judgment should be granted in Plaintiff's favor against Defendant Ellis because
the law sets forth that where a non-moving party willfully fails to respond adequately to a
properly filed motion for summary judgment, a district court has no duty to perform an
independent review of the record to find proof of a factual dispute; 10) the ReportRecommendation violates Local Rule 7.1(a)(1) in that it contains citations to decisions
exclusively reported on computerized databases, and copies of those decisions were not affixed to
the Report-Recommendation, and the Report-Recommendation fails to support its denial of
Plaintiff's motion as to the retaliation claims with any relevant facts; 11) the grievance response
received containing an apology from Defendant Kupiec regarding her action of not mailing
Plaintiff's Notice of Intention to File a Claim as instructed and the letter from Defendant Kupiec
apologizing for destroying Plaintiff's test scores are admissions to his mail claims against
Defendant Kupiec; 12) the Report-Recommendation sends the message that Defendants have
special privileges with respect to discovery, and Magistrate Judge Baxter will go against his own
7

prior text orders to support such abuse; 13) specifically detailed Defendants Boll and Fischer's
personal involvement regarding the liability of their subordinates, and thus there is no question of
material fact regarding this issue; 14) granting Defendants' second letter motion for an extension,
without an accompanying affidavit, is a double standard and is not in compliance with this Court's
rules; and 15) the Report-Recommendation should be reversed in the interest of justice because
the Federal Rules of Civil Procedure and the Northern District Local Rules should apply equally
to both pro se litigants and prisoners, as well as state defendants. See Dkt. No. 56 at 3-34; Dkt.
No. 58 at 3-7.
In his supplemental objections filed on March 21, 2012, Plaintiff claims that he "received
some documents from Defendants' Counsel . . . which proves that more Jews are being starved
throughout the Department of Correction and Community Supervision (DOCCS) when the said
individuals file grievances." See Dkt. No. 70 at 2. Plaintiff claims that the two emails from
DOCCS employees discussing two complaints filed by other inmates at Mid-State regarding
issues similar to those in the present matter. See id. at Exhibit "A."

III. DISCUSSION
A.

Review of a Magistrate Judge's Decision
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 of specified proposed
findings or recommendations to which objection in made." 28 U.S.C. § 636(b)(1) (2006).
However, when a party files "[g]eneral or conclusory objection or objections which merely recite
the same arguments [that he presented] to the magistrate judge," the court review 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
8

court may accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1).

B.

Injunctive Relief
1.

Standard of Review

A party seeking injunctive relief must demonstrate 1) irreparable harm; and 2) either a) a
likelihood of success on the merits of the claims, or b) existence of serious questions going to the
merits of the claims, and a balance of hardships tipping decidedly in moving party's favor. See
D.D. ex rel. V.D. v. N.Y. City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006) (quotation omitted).
"The purpose of issuing a preliminary injunction is to 'preserve the status quo and prevent
irreparable harm until the court has an opportunity to rule on the . . . merits."' Candelaria v.
Baker, No. 00-CV-012E, 2006 WL 618576, *3 (W.D.N.Y. Mar. 10, 2006) (quoting Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)).
A higher standard than ordinarily required must be met "where an injunction is mandatory
– that is, where its terms would alter, rather than preserve, the status quo by commanding some
positive act." Phillip v. Fairfield Univ., 118 F.3d 131, 133 (2d Cir. 1997) (citation omitted). To
meet such a higher standard, the moving party must "show[] 'clearly' that he or she is entitled to
relief or that 'extreme or very serious damage' will result from a denial of the injunction." Id. at
133 (other citations omitted). Additionally, "[i]n the prison context, a request for injunctive relief
must always be viewed with great caution so as not to immerse the federal judiciary in the
management of state prisons." Fisher v. Goord, 981 F. Supp. 140, 167 (W.D.N.Y. 1997) (citing
Farmer v. Brennan, 511 U.S. 825, 846-47, 114 S. Ct. 1970, 1983-84, 128 L. Ed. 2d 811 (1994))
(other citations omitted).
9

2.

Application

Regarding Plaintiff's current motion, this Court agrees with Magistrate Judge Baxter's
finding that Plaintiff has not met his burden showing that he is entitled to injunctive relief. The
Second Circuit has repeatedly held that "a transfer from a prison facility moots an action for
injunctive relief against the transferring facility." Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir.
1996); see, e.g., Day v. Chaplin, 354 Fed. Appx. 472, 473-74 (2d Cir. 2009) (other citations
omitted). Since the alleged unconstitutional and retaliatory acts occurred while Plaintiff was
incarcerated at Mid-State, his transfer to Gouverneur renders his application for a TRO moot.
Moreover, Plaintiff has directed his motion for a TRO to individuals not included in the
original complaint, with the exception of Defendants Boll and Fischer.7 See Dkt. No. 35-1 at ¶¶
4-7. As such, this Court agrees with Magistrate Judge Baxter's finding that "[i]f additional
individuals denied [P]laintiff his constitutional right to practice his religion, he may move to
supplement his complaint or bring a separate action against individuals at Gouverner." See Dkt.
No. 54 at 7. Even if Plaintiff's motion for a TRO was directed at Defendants in this action,
Plaintiff has failed to establish an imminent threat of irreparable harm or that other serious injury
that would result if injunctive relief is not granted because the alleged new deprivations have
already occurred.

Magistrate Judge Baxter's Report-Recommendation noted that original Defendants Boll
and Fischer are employees of DOCCS, and are not located at any specific facility. See Dkt. No.
54 at 5 n.9 (citing Dkt. No. 45 at ¶¶ 40-48). Magistrate Judge Baxter further noted that Plaintiff's
claim that Defendants Boll and Fischer approve all transfers – even if true – is not proof that they
were responsible for subsequent denials of Plaintiff's religious rights by individuals at
Gouverneur. See Dkt. No. 54 at 6 n.10.
10
7

Finally, Plaintiff's concerns of possible future retaliation are too speculative to warrant
injunctive relief, since no imminent threat is posed. See Smolen v. Dildine, No. 11-CV-6434,
2011 WL 6030112, *2 (W.D.N.Y. Dec. 5, 2011) (citations omitted).
For the foregoing reasons, Plaintiff's motion for preliminary injunctive relief is denied.

C.

Summary Judgment
1. Standard of Review
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 pleading. 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
11

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, 303 U.S. 519, 520, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972)) (other citations omitted). "Indeed, the Second Circuit has stated that
'[i]mplicit in the right to self-representation is an obligation on the part of the court to make
reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights
because of their lack of legal training."' Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)). This does not mean, however, that a pro se litigant is excused from following the
procedural requirements of summary judgment. See id. (citing Showers v. Eastmond, No. 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) (quoting Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

2. Application
a. Sufficiency of Defendants' response
In his objection, Plaintiff argues that because Defendants failed to submit an affidavit in
support of their response in opposition to summary judgment the Court must grant his motion.
See Dkt. No. 56 at 12-15. While not issuing a formal response, Defendants submitted a letter to
Magistrate Judge Baxter, stating that Plaintiff's motion for summary judgment is premature and

12

should be denied because they have not had the opportunity to conduct discovery. See Dkt. No.
49 at 1.
The Second Circuit has held that,
a party resisting summary judgment on the ground that it needs
discovery in order to defeat the motion must submit an affidavit
showing '"(1) what facts are sought [to resist the motion] and how
they are to be obtained, (2) how those facts are reasonably expected
to create a genuine issue of material fact, (3) what effort affiant has
made to obtain them, and (4) why the affiant was unsuccessful in
those efforts.'"
Gurary v. Winehouse, 190 F.3d 37, 43-44 (2d Cir. 1999) (quoting Meloff v. New York Life Ins.
Co., 51 F.3d 372, 375 (2d Cir. 1995)) (other citations omitted). Defendant's response to Plaintiff's
motion for summary judgment only consisted of a letter to Magistrate Judge Baxter, citing to case
law and Rule 56(f) of the Federal Rules of Civil Procedure, indicating that summary judgment
should not be granted because they have not been afforded adequate opportunity to conduct
discovery. Defendants failed to attach a Rule 56(f) affidavit to their response, and the letter did
not address facts to be sought with additional discovery that would create a genuine issue of
material fact. See Dkt. No. 49 at 1-2.8
Although Plaintiff is correct that Defendants' response was deficient, Plaintiff is still not
entitled to summary judgment. Four days before the response deadline, Magistrate Judge Baxter
issued a text order providing that "[n]o further submissions are required or allowed . . . ." Clearly,

Defendants referenced Rule 56(f) in the response letter to Magistrate Judge Baxter.
However, "[a] reference to Rule 56(f) and to the need for additional discovery in a memorandum
of law in opposition to a motion for summary judgment is not an adequate substitute for a Rule
56(f) affidavit." Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994) (citing
Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 925 (2d Cir. 1985)).
As such, "the failure to file an affidavit under Rule 56(f) is itself sufficient grounds to reject a
claim that the opportunity for discovery was inadequate." Burlington Coat Factory Warehouse
Corp. v. Esprit De Corp., 769 F.2d 919, 925 (2d Cir. 1985) (other citations omitted).
8

13

Magistrate Judge Baxter believed, as does the Court, that Plaintiff's motion was premature and
fell short of carrying his burden; and, therefore, did not require a formal response. Defendants'
failure to comply with Rule 56(f) does not obviate Plaintiff's burden of proof, which he failed to
meet. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004) (holding that "[a]n unopposed summary judgment motion may also fail where the
undisputed facts fail '"to show that the moving party is entitled to judgment as a matter of law"'"
(quotations omitted)); see also Giannullo, 322 F.3d at 140-41 (holding that the "non-movant is
not required to rebut an insufficient showing").

b. Religion
Prisoners are certain constitutional protection with regards to the First Amendment Free
Exercise Clause. See Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v.
Procunier, 417 U.S. 817, 822 (1974)). "RLUIPA protects inmates by providing that a
government shall not 'impose a substantial burden' on the 'religious exercise' of inmates in certain
institutions unless the government shows that the burden furthers a compelling governmental
interest by the least restrictive means." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006)
(quoting 42 U.S.C. § 2000cc-1(a) (2006)); see e.g., Brown v. Graham, No. 9:07-CV-1353, 2010
WL 6428251, *15 (N.D.N.Y. Mar. 30, 2010) (citation omitted). Plaintiff claims that his First
Amendment Free Exercise rights under RLUIPA were violated by Defendants Ready and Ellis.
With respect to the incident that occurred on December 7, 2010, involving Defendant
Ready's refusal to allow Plaintiff to attend religious services, this Court agrees with Magistrate
Judge Baxter's findings that a question of fact remains based on the exhibits Plaintiff submitted.
Specifically, the investigation report issued in response to Plaintiff's grievance about the matter
14

indicates that the call-out list for Jewish Services on December 2, 2010 was not distributed
following normal procedure. See Dkt. No. 1, Ex. L. As a result of this error, the call-out list was
hand delivered to housing units, but not the program areas, where Plaintiff was at the time of the
incident. See id. The report also indicates that there was insufficient evidence "to substantiate
any malfeasance by staff" and that there was "no malice intended." See id.
Plaintiff asserts that DOCCS Office of Counsel's response, indicating that corrective
action was taken regarding this incident, is an admission to unconstitutional acts. See Dkt. No. 56
at 17-18. A statement indicating that corrective action was taken is not necessarily the equivalent
of an admission to unconstitutional conduct. Additionally, in his objection, Plaintiff claims that
the DOCCS Office of Counsel overruled the superintendent's decision regarding the grievance.
See id. at 18. This claim, however, is untrue. Plaintiff's own exhibit shows that the Central
Office Review Committee ("CORC") upheld the decision of the superintendent regarding this
grievance, and stated that it had "not been presented with sufficient evidence to substantiate that
[Plaintiff] was purposefully denied attendance to the callout or discriminated against by staff."
See Dkt. No. 1, Ex. S. Thus, there remains a question of material fact regarding the incidents of
December 7, 2010, and Plaintiff's objection regarding the incident is unfounded.
Similarly, regarding the incident that occurred on March 20, 2011, it is clear from
Plaintiff's own submissions that a question of fact still remains regarding Defendant Ellis'
conduct. Plaintiff claims that the religious services scheduled for March 20, 2011 were
intentionally cut short by Defendant Ellis in an expression of anti-Semitic behavior. See Dkt. No.
1 at ¶ 65. However, the investigation report in response to Plaintiff's grievance indicates that the
Rabbis arrived late for the services, and inmates were sent back to their housing units until they
arrived. See Dkt. No. 48-2, Ex. D. As such,
15

Based on the foregoing, the Court finds that Plaintiff has failed to establish that there are
no issues of material fact and is, therefore, not entitled to summary judgment on this claim.

c. Retaliation
The Second Circuit has held that retaliation against a prisoner for filing a grievance is a
violation of that prisoner's First Amendment right to petition the government for redress. See
Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (citing Franco v. Kelly, 854 F.2d 584 (2d
Cir. 1988)). To establish a claim of retaliation, the plaintiff must establish "(1) that the
disciplined conduct was constitutionally protected, and (2) that his punishment was motivated, in
whole or in part, by his conduct – in other words, that the prison officials' actions were
substantially improper retaliation." Id. Additionally, there must be a causal connection between
the protected activity and the adverse action. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir.
2003) (citing Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002)).
Plaintiff claims he was subjected to several instances of retaliation, including the
following: (1) the events of March 20, 2011, for filing an earlier grievance against Defendant
Ellis, and C.O. Johnston;9 (2) improperly mailing out Plaintiff's Notice of Intent to File a Claim in
retaliation for filing grievances; (3) Defendant Kupiec's destruction of two of Plaintiff's packages
in retaliation for filing a Notice of Intent to File a Claim and grievances; and (4) the tearing of
Plaintiff's mail in retaliation for filing grievances. See Dkt. No. 48-1 at ¶¶ 20, 22, 23, 97.

Plaintiff's grievance number MS-20189-10 was filed in response to Defendant Ellis' and
C.O. Johnston's refusal to permit Plaintiff to remain in the law library when he was excused from
work and/or programs in accordance with the Jewish Holiday. See Dkt. No. 1, Ex. F.
16
9

Again, Plaintiff has failed to establish that there are no issues of material fact regarding
the above mentioned events. Plaintiff has failed to put forth evidence indicating that these events
"would deter a similarly situated individual of ordinary firmness from exercising his or her
constitutional rights." Davis v. Goord, 320 F.3d at 353 (quoting Dawes v. Walker, 239 F.3d 489,
492 (2d Cir. 2001)). In fact, evidence of the exact opposite exists in that Plaintiff continually
filed grievances for acts he thought were in violation of his rights. Plaintiff is merely relying on
the fact that these events occurred in close proximity to protected conduct, and such reliance
"does not strongly establish [a] causal nexus." Jackson v. Goord, No. 06-CV-6172, 2011 WL
4829850, *17 (W.D.N.Y. Oct. 12, 2011).

d. Access to Courts/Mail Claims
"Under the First Amendment, prisoners have a right to 'the free flow of incoming and
outgoing mail."' Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006) (quoting Davis v. Goord,
320 F.3d at 351). A prisoner's right to send and receive mail can be regulated, if such regulation
"is reasonably related to legitimate penological interests." Id. (quoting Rodriguez v. James, 83
F.2d 8, 12 (2d Cir. 1987) (other quotation omitted)). To establish such a claim, it must be shown
that "the defendant's conduct was deliberate and malicious, and that the defendant's actions
resulted in an actual injury to the plaintiff." Collins v. Goord, 581 F. Supp. 2d 563, 573
(S.D.N.Y. 2008) (citing Davis v. Goord, 320 F.3d at 351). Actual injury is established by
demonstrating that the plaintiff's efforts in pursing a nonfrivolous claim were frustrated as a result
of the defendant's actions. See id. (citing Lewis v. Casey, 518 U.S. 343, 353 (1996)).
With respect to non-legal mail, a "prison official's interference with an inmate's mail may
violate his First Amendment right to free speech, which includes the 'right to be free from
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unjustified governmental interference with communication.'" Cancel v. Goord, No. 00 CIV 2042,
2001 WL 303713, *5 (S.D.N.Y. Mar. 29, 2001) (quoting Brewer v. Wilkinson, 3 F.3d 816, 820
(5th Cir. 1993)). "In order for an inmate to state a claim for interference with incoming non-legal
mail he must show a pattern and practice of interference that is not justified by any legitimate
penological concern." Id. (citing Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999)).
In the present matter, Magistrate Judge Baxter correctly held that Plaintiff has failed to
show that no question of fact exists regarding the issue of his legal mail not being sent out as
instructed. Plaintiff has not produced any evidence showing that Defendant Kupiec's conduct was
deliberate and malicious. Plaintiff states that the apology letter received from Defendant Kupiec
was an admission to the error in mailing. See Dkt. No. 56 at 25. However, as Magistrate Judge
Baxter noted, the fact that Defendant Kupiec responded to Plaintiff's complaint, apologized to
Plaintiff for the error, and issued him a reimbursement does not establish that her conduct was
deliberate and malicious. See Dkt. No. 54 at 14.
Plaintiff also refers to his claim that Defendant Kupiec lost or destroyed his mail,
specifically his test scores, in retaliation for grievances filed. See Dkt. No. 54 at 15; Dkt. No. 56
at 25. Although Plaintiff may be able to succeed on a claim for interference with incoming nonlegal mail by showing that a pattern and practice of interference exists between the two packages
that were allegedly destroyed or missing, and the destruction of his test scores, that was not
justified by any legitimate penological interest, questions of fact remain as to who committed the
violations with respect to the two packages, and with regard to Defendant Kupiec's motive in
ripping Plaintiff's mail, as noted by Magistrate Judge Baxter. See Dkt. No. 54 at 15.10

In a letter from Defendant Kupiec to Plaintiff, Defendant Kupiec apologizes for tearing
the test scores because she mistook them for advertisements that could not be forwarded. See
10

(continued...)

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Based on the foregoing, the Court finds that Magistrate Judge Baxter correctly held that
questions of fact exist which preclude summary judgment at this time.

e. Supervisory Officials
"'[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) (quotation and other citations omitted). "'[W]hen monetary damages are sought under §
1983, the general doctrine of respondeat superior does not suffice and a showing of some
personal responsibility of the defendant is required.'" Id. (quoting Johnson v. Glick, 481 F.2d
1028, 1034 (2d Cir.)). There is a sufficient showing of personal responsibility of a defendant if
(1) the defendant directly participated in the alleged constitutional deprivation; (2) the defendant
is a supervisory official who failed to correct the wrong after learning about it through a report or
appeal; (3) the defendant is a supervisory official who created a policy or custom under which the
constitutional deprivation occurred, or allowed such a policy or custom to continue; or (4) the
defendant is a supervisory official that was grossly negligent in managing subordinates who
caused the constitutional deprivation. See id. (quoting Williams v. Smith, 781 F.2d 319, 323-24
(2d Cir. 1986)).
It is well-settled that receipt of letters or grievances, by itself, does not amount to personal
involvement. See Vega v. Artus, 610 F. Supp. 2d 185, 199 (N.D.N.Y. 2009). Further, "[p]rison
supervisors are entitled to refer letters of complaint to subordinates, and rely on those
subordinates to conduct an appropriate investigation and response, without rendering the

10

(...continued)

Dkt. No. 48-2, Ex. S.
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supervisors personally involved in the constitutional violations alleged in the letters of
complaint." Id. at 199 n.13 (citations omitted); see also Sealey v. Giltner, 116 F.3d 47, 51 (2d
Cir. 1997).
Magistrate Judge Baxter correctly held that, because there are remaining questions of fact
as to whether any unlawful violations actually occurred, Plaintiff's motion for summary judgment
as to Defendants Boll and Fischer must be denied. Moreover, contrary to Plaintiff's assertion,
Magistrate Judge Baxter did, in fact, address his claims against Defendants Fischer and Boll and
correctly found that summary judgment as to those Defendants was inappropriate at this time.
See Dkt. No. 54 at 6 n.10, 16-17.
Based on the foregoing, the Court finds that Plaintiff has failed to establish that he is
entitled to summary judgment as to Defendants Boll and Fischer.

f. Other Objections
In his tenth objection, Plaintiff states that the Report-Recommendation is in violation of
Local Rule 7.1(a)(1) in that it contains citations to decisions exclusively reported on
computerized databases, and copies of those decisions were not affixed to the ReportRecommendation. See Dkt. No. 56 at 21-22. By the very language of Local Rule 7.1(a)(1),
however, this Local Rule is only applicable to parties, not the court. See LOCAL RULES N.D.N.Y.
7.1(a)(1).11
With regards to his twelfth objection, Plaintiff is not being "condimed [sic] for taking
appropriate action" with respect to dismissing his own Court of Claims action. Magistrate Judge
Baxter noted with respect to this claim, that "[i]f an injury exists, there is at least a question of

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fact regarding the causation of the injury to plaintiff's legal claim." See Dkt. No. 54 at 16; Dkt.
No. 56 at 29. Plaintiff still has the opportunity to prove this claim at trial.
Plaintiff also objects to Magistrate Judge Baxter "granting" Defendants' second letter
motion for an extension. Plaintiff's objection is without merit because, quite simply, Defendant's
second letter motion to stay discovery was denied by Magistrate Judge Baxter in a text order
dated May 15, 2012.
The Court has reviewed Plaintiff's remaining objections and finds that they are meritless
and often quite difficult to comprehend.

IV. CONCLUSION
After carefully considering Magistrate Judge Baxter's Report-Recommendation, Plaintiff's
objections thereto, and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Baxter's March 22, 2012 Report-Recommendation is
ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's motions for preliminary injunctive relief (Dkt. No. 35) and for
summary judgment (Dkt. No. 48) are DENIED; and the Court further
ORDERS that the Clerk of the Court shall serve the parties with a copy of this
Memorandum-Decision and Order in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: July 9, 2012
Albany, New York

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