Thomas v. Waugh et al

Filing 58

MEMORANDUM-DECISION AND ORDER granting in part and denying in part 47 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 53 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks 9; July 24, 2015 Report and Recommendation(Dkt. No. 53) is ADOPTED in its entirety for the reasons set forth therein; and the Court further ORDERS that Defendants' motion to dismiss Plaintiff's complaint (Dkt. No. 47) is GRANTED in part and DENIED in part; and the Court further ORDERS that Plaintiff's procedural and substantive due process claims, claims against Defendants DeCairano and Bellamy, and claims related to the proper functioning of the inmate grievance system are DISMIS SED with prejudice; and the Court further ORDERS that Plaintiff's retaliation claim against Defendant Leifeld is DISMISSED with leave to amend; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 9/30/15. [copy mailed to plaintiff] (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ERROL THOMAS,
Plaintiff,
vs.

9:13-CV-0321
(MAD/TWD)

F. WAUGH, DICAIRANO, LEIFELD,
RONALD D. LARKIN, CHERYL MORRIS,
JOHN N. ANTONELLI, BLY, and KAREN
BELLAMY,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ERROL THOMAS, 96-A-7903
Coxsackie Correctional Facility
P.O. Box 999
Coxsackie, NY 12051
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants

LOUIS JIM, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Errol Thomas, an inmate currently in the custody of the New York State
Department of Corrections and Community Supervision ("DOCCS"), commenced this action pro
se pursuant to 42 U.S.C. § 1983. See Dkt. No. 1; Dkt. No. 26. Plaintiff alleges the following
causes of action: (1) violation of his right to freely exercise his religion under the First
Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), (2)

violation of his substantive and procedural due process rights, and (3) retaliation in violation of
his First Amendment rights. See Dkt. No. 26 at ¶¶ 17-68.
On November 6, 2014, Defendants filed a motion to dismiss for failure to state a claim.
See Dkt. No. 47. In a July 24, 2015 Report-Recommendation and Order, Magistrate Judge
Dancks recommended that Defendants' motion to dismiss for failure to state a claim be granted in
part and denied in part. See Dkt. No. 53. Currently before the Court are Plaintiff's objections to
Magistrate Judge Dancks' Report and Recommendation. See Dkt. No. 56.

II. BACKGROUND
A. Magistrate Judge Dancks' Report and Recommendation
As there are no objections filed to the background and facts set forth in the ReportRecommendation and Order, the Court adopts and incorporates that recitation here. See Dkt. No.
53 at 1-5. Magistrate Judge Dancks recommended that the Court grant in part and deny in part
Defendants' motion. See Dkt. No. 53. Specifically, Magistrate Judge Dancks recommended that
the Court direct Defendants Waugh, Leifeld, Larkin, Morris, Antonelli, and Bly to answer
Plaintiff's claims under the free exercise clause of the First Amendment and the RLUIPA because
Plaintiff stated plausible facts suggesting that Defendants' refusal to permit him to wear the larger
head covering substantially burdened his sincerely held religious belief. See id. at 7-14.
Magistrate Judge Dancks next recommended that the Court dismiss Plaintiff's procedural due
process claims with prejudice based on the availability of adequate state court post-deprivation
remedies. See id. at 14-15. Magistrate Judge then recommended that Plaintiff's substantive due
process claim be dismissed with prejudice because, inter alia, it is covered by a specific
constitutional provision and must be analyzed under that standard. See id. at 15-16. Magistrate
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Judge Dancks further recommended that the Court dismiss Plaintiff's retaliation claim against
Defendant Leifeld for failing to plausibly allege a causal connection between Defendant Leifeld's
alleged adverse action and Plaintiff's protected speech and grant Plaintiff leave to amend. See id.
at 17-20. In addition, Magistrate Judge Dancks recommended that the Court grant Defendants'
motion to dismiss Plaintiff's claims against Defendant DiCairano for failure to allege more than
mere verbal harassment and against Defendant Bellamy for lack of personal involvement. See id.
at 20-22. Finally, Magistrate Judge Dancks recommended that Plaintiff's claims regarding the
functioning of the grievance process be dismissed on the grounds that prisoners have no
constitutional right to the proper administration of the grievance process. See id. at 22-23.
B.

Plaintiff's Objections
Plaintiff objects to Magistrate Judge Dancks' recommendations that his due process

claims, retaliation claims, and claims against Defendant DiCairano and Defendant Bellamy be
dismissed. See Dkt. No. 56 at 2. Specifically, Plaintiff argues that his headcovering was
confiscated arbitrarily and unjustifiably, thereby denying Plaintiff substantive and procedural due
process because the prison authorities could have "resolved the problem in a more appropriate
fashion without resorting to the harsher solution of penalizing plaintiff with a misbehavior report
and pre-hearing confinement." Dkt. 56 at 2-3. Additionally, Plaintiff argues that Magistrate
Judge Dancks applied the wrong standard for appraising the sufficiency of a complaint on a
motion to dismiss to his retaliation claim. See Dkt. 56 at 3-5. He also appears to argue that his
complaint sufficiently stated a retaliation claim against Defendant DiCairano and Defendant
Bellamy. See id. at 3.

III. DISCUSSION
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A.

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

district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
argument [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citation and footnote omitted). After the appropriate review, "the court may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge."
28 U.S.C. § 636(b)(1).
A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a
claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2001).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although the court should construe the factual
allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true
all of the allegations contained in a complain is inapplicable to legal conclusions." Id.
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Thus, "where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. (quoting Fed. R.
Civ. P. 8(a)(2)).

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"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). The Second Circuit has opined that the court is obligated to "make reasonable
allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because
they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007)
(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Furthermore, when a pro se complaint
fails to state a cause of action, the court generally "should not dismiss without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid claim
might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks
and citations omitted). Nonetheless, an opportunity to amend is not required where "[t]he
problem with [the plaintiff's] cause of action is substantive" such that "better pleading will not
cure it." Id.
B.

Free Exercise and Grievance Process Claims
Neither party has objected to Magistrate Judge Dancks' recommendations that Plaintiff's

free exercise claim go forward and claim related to functioning of the grievance system be
dismissed. The Court finds that Magistrate Judge Dancks correctly determined that Plaintiff has
plausibly alleged that Defendants substantially burdened his sincerely held religious beliefs and
have not identified a legitimate or compelling penological interest justifying the impingement.
Accordingly, the Court denies Defendants' motion to dismiss Plaintiff's free exercise claims under
the First Amendment and RLUIPA. The Court also finds that Magistrate Judge Dancks correctly
concluded that Plaintiff does not have a due process right to have proper procedures be followed

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with respect to his grievances. As such, the Court grants Defendants' motion to dismiss Plaintiff's
claim pertaining to the functioning of the inmate grievance system.
C.

Due Process Claims
1.

Substantive Due Process

Plaintiff argues that he sufficiently pled the elements of a substantive due process claim as
set forth in Rother v. New York State Department of Corrections and Community Supervision, 970
F. Supp. 2d 78, 100 (N.D.N.Y. 2013). Specifically, Plaintiff argues that his complaint alleges "1)
Plaintiff's religious headcovering was confiscated arbitrarily, denying him of his constitutionallyprotected religious freedom; [and] 2) The issue of a misbehavior report is a punishment against
his exercise of religion." Dkt. No. 56 at 2.
Magistrate Judge Dancks correctly determined that Plaintiff's substantive due process
claim fails because Plaintiff "has not alleged any facts plausibly suggesting that Defendants'
behavior was 'shocking' in a constitutional sense." Dkt. No. 53 at 16. As Magistrate Judge
Dancks noted, within the context of the prison setting, "[v]ery few conditions . . . have been found
'shocking' enough to violate a prisoner's right to substantive due process." Id. (citing Sadin v.
Conner, 515 U.S. 472, 479 n.4, 484 (1995)); Tavares v. Amato, 954 F. Supp. 2d 79, 98 (N.D.N.Y.
2013)). The only facts alleged by Plaintiff in connection with his substantive due process claim
are that his religious headcovering was confiscated and that he was issued a misbehavior report.
See Dkt. No. 56 at 2. Neither of these allegations rises to the level of "shocking" that would
support a substantive due process claim.
Morever, Magistrate Judge Dancks correctly determined that Plaintiff's substantive due
process claim must be dismissed on the additional ground that it is duplicative of Plaintiff's First
Amendment free exercise claim. See Dkt. No. 53 at 16; see also Rother, 970 F. Supp. 2d at 100
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("[S]ubstantive-due-process claims must be dismissed where they are 'merely duplicative of
claims explicitly protected under other constitutional sources.' (quoting Roman v. Velleca, No. 11CV-1867, 2012 WL 4445475, *10 (D. Conn. Sept. 25, 2012)). Plaintiff's objections make clear
that his substantive due process claim is based on Defendants' alleged violations of Plaintiff's free
exercise rights. See Dkt. No. 56 at 2. As Magistrate Judge Dancks correctly set forth, "a
constitutional claim . . . covered by a specific constitutional provision . . . must be analyzed under
the standard appropriate to that specific provision, not under the rubric of substantive due
process." Dkt. No. 53 at 16 (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). As
such, the Court grants Defendants' motion to dismiss Plaintiff's substantive due process claim
without leave to amend.
2.

Procedural Due Process Claim

Plaintiff objects to Magistrate Judge Dancks' recommendation that his procedural due
process claim be dismissed on the grounds that Defendants' deprivation of Plaintiff's property was
unjustified and not implemented in an "appropriate fashion." Dkt. No. 56 at 3. However,
Magistrate Judge Dancks correctly found that under Second Circuit law, the confiscation of
property even in a prison context does "not constitute a Fourteenth Amendment violation for loss
of property because of the availability of state court post-deprivation remedies" in the New York
Court of Claims. Dkt. No. 53 at 14 (quoting Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996)).
Magistrate Judge Dancks also correctly concluded that better pleading cannot cure the substantive
failures of Plaintiff's procedural due process claim. See id. at 15. Accordingly, the Court adopts
Magistrate Judge Dancks' recommendation to dismiss with prejudice Plaintiff's procedural due
process claim.
D.

Retaliation Claims
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Magistrate Judge Dancks recommended that Plaintiff's retaliation claim against Defendant
Leifeld be dismissed based on Plaintiff's failure to allege facts plausibly suggesting a causal
connection between Plaintiff's protected speech and Defendant Leifeld's alleged adverse actions.
See Dkt. No. 53 at 18-20. Plaintiff contends that Magistrate Judge Dancks applied the wrong
standard in determining whether Plaintiff's complaint sufficiently states a retaliation claim. See
Dkt. No. 56 at 4-5. Plaintiff incorrectly relies on the outdated pleading standard of Conley v.
Gibson, which did "not require a claimant to set out in detail the facts upon which he bases his
claim," but rather to set out "'a short and plain statement of the claim' that will give the defendant
fair notice of what the plaintiff's claim is and the grounds upon which it rests." 355 U.S. 41, 47
(1957) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff fails to recognize that the Supreme Court's
more recent decisions in Twombly and Iqbal abrogated Conley's bare notice pleading
requirements in favor of a standard requiring litigants to plead "enough facts to state a claim to
relief that is plausible on its face." Twombly, 550 U.S. at 570. As the Supreme Court stated in
Iqbal, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice" to state a claim for relief. Iqbal, 556 U.S. at 678.
Here, Magistrate Judge Dancks applied the correct standards in determining that Plaintiff
has failed to plausibly allege a causal connection between Defendant Leifeld's action and
Plaintiff's protected speech. As Magistrate Judge Dancks explained, the only fact Plaintiff alleged
that suggests a causal connection is the fact that Defendant Leifeld's actions were taken in close
temporal proximity to Plaintiff's protected speech. See Dkt. No. 53 at 19. Magistrate Judge
Dancks further correctly explained that temporal proximity alone is insufficient to establish an
inference of retaliation. See id. (citing Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95

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(2d Cir. 2001)). Accordingly, Plaintiff's retaliation claim must be dismissed for failure to
plausibly allege a causal connection.
Magistrate Judge Dancks also recommended that Plaintiff be granted leave to amend his
retaliation complaint. In light of Plaintiff's misplaced reliance on the Conley notice pleading
requirements, the Court agrees that granting leave to amend is proper. Plaintiff's retaliation claim
against Defendant Leifeld is thus dismissed without prejudice.
Plaintiff also argues that his claims against Defendant DiCairano and Bellamy are "part of
[his] retaliation claim," as Defendants "continued to push the issue, particularly after plaintiff
filed a grievance." Dkt. No. 56 at 3. Magistrate Judge Dancks construed Plaintiff's claim against
Defendant DiCairano as alleging a violation of Plaintiff's free exercise rights. See Dkt. No. 53 at
20. That interpretation is consistent with Plaintiff's complaint, which alleged that "[D]efendant
DiCairano intentionally harassed Thomas in derogation of his right to religious freedom so as to
burden Thomas' exercise of his religious freedom." Dkt. No. 26 at ¶ 40. Plaintiff's retaliation
claims specifically name only Defendant Leifeld. See id. at ¶¶ 41-47.
First, Magistrate Judge Dancks is correct in concluding that Plaintiff's allegations of
verbal harassment by Defendant DiCairano are insufficient to raise a constitutional violation. See
Dkt. No. 53 at 20. Second, Plaintiff's allegations as to Defendant DiCairano involve solely
conduct that occurred prior to Plaintiff's alleged protected activity of filing a grievance against
Defendant DiCairano. See Dkt. No. 26 at ¶¶ 34-40. As Plaintiff has not alleged any adverse
action taken by Defendant DiCairano in response to Plaintiff's protected activity, Plaintiff has
failed to state a retaliation claim against Defendant DiCairano. The Court therefore accepts
Magistrate Judge Dancks' recommendation and dismisses Plaintiff's claim against Defendant
DiCairano with prejudice.
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As to Defendant Bellamy, despite Plaintiff's contention in his objections that Defendant
Bellamy was somehow involved in retaliation against Plaintiff, the only factual allegations that
Plaintiff raises in his complaint are that Defendant Bellamy: (1) "advised Thomas that [the
Central Office Review Committee ("CORC")] had received his grievance appeal on September 6,
2012;" (2) "is responsible for the administrative functions of the [Inmate Grievance Program] and
the CORC;" and (3) "is personally involved and appropriately named in this action for the
purpose of discovery to ascertain the voting members, or their designees, present in deciding the
plaintiff's grievance." Dkt. No. 26 at ¶¶ 53-55. Magistrate Judge Dancks correctly concluded that
these allegations are insufficient to show Defendant Bellamy's personal involvement in the
alleged constitutional violations, Dkt. No. 53 at 20-22, a point that Plaintiff conceded in his
opposition to Defendants' motion to dismiss, see Dkt. No. 50 at 8. Moreover, the Court agrees
with Magistrate Judge Dancks that allowing Plaintiff's claims to proceed against Defendant
Bellamy for purposes of discovering the identity of the individuals involved in the alleged
violations of his constitutional rights is unnecessary, as Plaintiff has already identified several of
the individuals who allegedly violated his rights. See Dkt. No. 53 at 22. Consequently, the Court
adopts Magistrate Judge Dancks' recommendation and dismisses Plaintiff's claim against
Defendant Bellamy with prejudice.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Dancks' July 24, 2015 Report and Recommendation
(Dkt. No. 53) is ADOPTED in its entirety for the reasons set forth therein; and the Court further
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ORDERS that Defendants' motion to dismiss Plaintiff's complaint (Dkt. No. 47) is
GRANTED in part and DENIED in part; and the Court further
ORDERS that Plaintiff's procedural and substantive due process claims, claims against
Defendants DeCairano and Bellamy, and claims related to the proper functioning of the inmate
grievance system are DISMISSED with prejudice; and the Court further
ORDERS that Plaintiff's retaliation claim against Defendant Leifeld is DISMISSED with
leave to amend;1 and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: September 30, 2015
Albany, New York

As a result of this Order, should Plaintiff choose not to file an amended complaint,
Plaintiff's remaining claims are his First Amendment and RLUIPA free exercise claims against
Defendants Waugh, Leifeld, Larkin, Morris, Antonelli, and Bly.
1

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