Thomas v. Waugh et al

Filing 93

DECISION AND ORDER: ORDERS that Magistrate Judge Dancks' 91 Report-Recommendation and Order is ADOPTED in its entirety for the reasons set forth therein. ORDERS that Defendants' motion for summary judgment (Dkt. No. 89 ) is GRANTED in part, and DENIED in part. ORDERS that Defendant F. Waugh be terminated as a party. Signed by U.S. District Judge Mae A. D'Agostino on 3/27/18. (served on plaintiff by regular mail) (alh, )

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

9:13-cv-00321
(MAD/TWD)

F. WAUGH, Eastern Correctional Facility,
LEIFELD, Sergeant, Eastern Correctional
Facility, RONALD LARKIN, Superintendent, Eastern
Correctional Facility, CHERYL MORRIS,
New York State Department of Corrections and
Community Services, JOHN N. ANTONELLI, IGP
Coordinator, Eastern Correctional Facility, and
BLY, Assistant Commissioner, NYS DOCCS,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ERROL THOMAS
96-A-7903
Woodbourne Correctional Facility
99 Prison Road
P.O. Box 1000
Woodbourne, New York 12788
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorney for Defendants

KYLE W. STURGESS, AAG

Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
I. INTRODUCTION
On March 21, 2013, Plaintiff pro se Errol Thomas ("Plaintiff"), an inmate in the custody
of the New York State Department of Corrections and Community Supervision ("DOCCS"),

commenced this action in the Northern District of New York, pursuant to 42 U.S.C. § 1983,
asserting claims arising out of his confinement at Eastern Correctional Facility ("Eastern CF").
See Dkt. No. 1.1 On November 13, 2015, Plaintiff filed a second amended complaint. See Dkt.
No. 63. After an initial review of the second amended complaint for facial sufficiency, the
following claims remained: free exercise claims under the First Amendment and Religious Land
Use and Incarcerated Persons Act ("RLUIPA"), 42 U.S.C. § 1997e et seq., against the above
named Defendants. See Dkt. No. 69.
On June 9, 2017, after the close of discovery, Defendants moved for summary judgment.
See Dkt. No. 89. In a February 28, 2018, Report-Recommendation and Order, Magistrate Judge
Dancks recommended that the Court grant in part and deny in part Defendants' motion for
summary judgment. See Dkt. No. 91 at 33. On March 14, 2018, Defendants filed objections to
Magistrate Judge Dancks' Report-Recommendation and Order. See Dkt. No. 92. Plaintiff did not
file objections to Magistrate Dancks' Report-Recommendation and Order.
Currently before the Court is Magistrate Judge Dancks' Report-Recommendation and
Order and Defendants' objections thereto. For the reasons stated below, the Court adopts
Magistrate Judge Dancks' Report-Recommendation and Order in its entirety.
II. BACKGROUND
A.

Plaintiff's "Tam" and Administrative Grievance2

The cited page numbers for docket entries in this Decision and Order refer to those
assigned by the Court's electronic filing system ("ECF").
1

The following description of this complaint's factual and administrative history focuses
on the facts relevant to Defendants' objections to Magistrate Judge Dancks' February 28, 2018
Report-Recommendation and Order. A more comprehensive account of the facts can be found in
the Report-Recommendation and Order.
2

2

Plaintiff is of Jamaican heritage and a member of the Jewish faith. See Dkt. No. 89-5 at
16. One requirement of the Jewish religion is that men must wear a head covering. See Dkt. No.
68 at ¶¶ 20-22. Plaintiff also honors his Jamaican heritage by wearing his hair in dreadlocks, a
hairstyle that makes wearing a kippah, the traditional Jewish head covering, difficult. See Dkt.
No. 50 at 4. In order to keep his faith and honor his heritage, Plaintiff wears a tam, a head
covering similar to the Rastifarian Tsalot-Kob. See id. However, because tams are not typically
worn by Jewish men and, at the times relevant to this case, DOCCS restricted Tsalot-Kobs to
Rastifarians, Plaintiff encountered trouble with several of Eastern CF's guards. See Dkt. No. 89-3
at 5. In March 2012, Plaintiff was charged with a disciplinary infraction for wearing a tam. Dkt.
No. 89-2 at 150-156. On March 27, 2012, Eastern CF's rabbi testified that the tam, while not an
"ordinary" kippah, "satisfied the [Jewish faith's] religious requirements." Id. at 156. As a result
of this testimony, Plaintiff was found not guilty and was allowed to wear the tam. See id. To
prevent further problems with correctional officers, Plaintiff was given documentation stating he
was permitted to wear the tam. See Dkt. No. 63 at ¶ 30.
After this, most correctional officers would leave Plaintiff alone after he showed them his
documentation. See Dkt. No. 89-5 at 15. However, Defendant DiCairano repeatedly challenged
him for wearing the tam as it was "not a Jewish Head-covering" despite being shown his
paperwork. See id. Defendant DiCairano also told Plaintiff "that she was going to take a picture
of [his] religious head covering and send it to Albany." Id.
On August 7, 2012, Plaintiff filed a grievance against Defendant DiCairano and asked that
she face professional sanctions for her conduct. See Dkt. No. 89-5 at 10, 16. The Inmate
Grievance Resolution Committee ("IGRC") found that Plaintiff's requested sanctions were
"unattainable through IGRC." Id. at 18. IGRC also decided to ask the central office whether
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Plaintiff was permitted to wear the tam. See id. Plaintiff appealed this decision to Superintendent
Larkin and then to the Central Office Review Committee ("CORC"), both which denied his
appeal. See Dkt. No. 26 at 32; Dkt. No. 89-5 at 18.
In late August 2012, Ed Demo, a senior investigator for DOCCS' Special Operations
Office contacted Defendant Morris regarding IGRC's request for clarification on Plaintiff's tam.
See Dkt. No. 89-6 at 4. Upon review, Defendant Morris concluded that
it was clear that Plaintiff's head coverings . . . was a Tsalot-Kob,
and not for a member of the Jewish faith[, but] . . . . deferred to
DOCCS' security personnel regarding whether the tam could be
kept by the Plaintiff, as [she] was unsure at that time of the
permissible quantity of headgear to be owned by inmates at any one
time.
Id. at 4-5.
For several months after this decision, Plaintiff was permitted to continue wearing his tam
within his cell pursuant to a compromise reached with Defendant Leifeld, Plaintiff, and Eastern
CF's rabbi. See Dkt. No. 89-5 at 5. "[I]n late February or early March 2013, a determination was
made that the tam needed to be disposed of." See Dkt. No. 89-6 at 5. Defendant Morris claims
that she "did not specifically direct that . . . Plaintiff should be required to dispose of the headgear
. . . . [and that she] deferred to DOCCS' security personnel regarding whether" Plaintiff could
keep the tam. Id. However, Defendant Antonelli claims that Defendant Morris
requested input from [him] and [Defendant] Bly—who often
advised DOCCS offices such as MFVS on security-related aspects
of various inmate matters—as to whether the Plaintiff could retain
possession of his headgear or be made to dispose of it. . . . It was
determined that . . . Plaintiff should be directed dispose of the tam.
[Defendant Antonelli] relayed this information to the facility,
instructing Eastern to advise . . . Plaintiff about his disposal options
....

4

Dkt. No. 89-4 at 4. On or about March 2, 2013, Plaintiff "elected to mail the tam out of [Eastern
CF] to a relative." Id.
B.

Motion for Summary Judgment and Magistrate Judge Dancks' ReportRecommendation and Order
In their motion for summary judgment, Defendants argue that Plaintiff's claims should be

dismissed for the following reasons: (1) Plaintiff failed to exhaust his administrative remedies
under the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. §1997e(a); (2) Defendants
Waugh, Leifeld, Larkin, Antonelli and Bly did not have sufficient personal involvement; (3)
RLUIPA does not authorize money damages; (4) Plaintiff's claims for injunctive and declaratory
relief were made moot when he was transferred from Eastern CF to Woodbourne Correctional
Facility; and (5) Defendants are entitled to qualified immunity. Dkt. No. 89-9 at 7-20. Plaintiff
did not respond in opposition to the motion.
On February 28, 2018, Magistrate Judge Dancks issued a Report-Recommendation and
Order recommending the Court grant summary judgment as to Defendant Waugh, and partial
summary judgment as to Defendants Leifeld, Larkin, Antonelli, Bly, and Morris. See Dkt. No. 91
at 33. As to Defendants' exhaustion argument, Magistrate Judge Dancks determined that Plaintiff
had exhausted his claims via the grievance process for all claims except those against Defendant
Waugh. See id. at 21, 23. Magistrate Judge Dancks noted that Plaintiff's IGRC complaint and his
subsequent appeals achieved the policy goals of PLRA's exhaustion requirement by giving
DOCCS notice of the problem and an opportunity to adjudicate Plaintiff's claims. See id. at 22-23
(quoting Woodford v. Ngo, 548 U.S. 81, 89-90 (2006)).
Further, Magistrate Judge Dancks found that there was a triable question of fact as to
whether the remaining Defendants had sufficient personal involvement in limiting, and ultimately
prohibiting, Plaintiff's tam. See id. at 26-28. Magistrate Judge Dancks also recommended
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denying summary judgment on qualified immunity. See id. at 31. Magistrate Judge Dancks
noted that there remains a question of fact as to "whether there was a legitimate penological
reason to limit" Plaintiff's tam and that "a reasonable jury could conclude that it was objectively
unreasonable for Defendants to believe that they were not violating Plaintiff's federally protected
rights." Id. at 31. However, Magistrate Judge Dancks recommended that the Court grant
summary judgment on Plaintiff's RLUIPA claim for monetary relief, given that the statute does
not authorize money damages, and Plaintiff's request for injunctive and declaratory relief, given
that Plaintiff was no longer incarcerated at Eastern CF and the Second Circuit prohibits awarding
injunctive and declaratory relief after an inmate is transferred from the offending institution. See
id. at 32.
III. DISCUSSION
A.

Standard of Review
A court may grant a motion for summary judgment only if "the court 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 moving party as a matter of law." 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).
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 factual inferences in favor of
the nonmoving party. See id. 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 nonmovant either does not respond to the motion or fails to dispute the movant's statement of material
6

facts, the court may not rely solely on the moving party's statement of material facts; 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).
Moreover, "in a pro se case, the court must view the submissions by a more lenient
standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.
Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972)) (other citations omitted). "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.'" Govan, 289 F. Supp. 2d at 295 (quoting Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983)). "This liberal standard, however, does not excuse a pro se litigant
from following the procedural formalities of summary judgment." Id. (citing Showers v.
Eastmond, No. 00 CIV. 3725, 2001 WL 527484, at *1 (S.D.N.Y. May 16, 2001)).
In reviewing a report and recommendation, a district 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)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
7

object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
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,
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 litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
8

is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
B.

Exhaustion as to Defendants Antonelli and Bly
Defendants' first objection to Magistrate Judge Dancks' Report-Recommendation and

Order is that DOCCS had no notice of Defendants Antonelli and Bly's conduct, and thus, the
claim was not exhausted. Dkt. No. 92 at 5, 7.
As Magistrate Judge Dancks noted in her decision, the purpose of the PLRA's exhaustion
requirement is twofold. First, it give agencies "an opportunity to correct its own mistakes with
respect to the program it administers before it is haled into federal court." Woodford, 548 U.S. at
89. Second, exhaustion promotes efficiency for the agency and federal courts by allowing
agencies an initial opportunity to resolve claims "much more quickly and economically" and
providing courts "a useful record for subsequent judicial consideration." Id. "The primary
purpose of a grievance is to alert prison officials to a problem, not to provide notice to a particular
official that he may be sued . . . ." Jones v. Bock, 549 U.S. 199, 219 (2007) (quoting Johnson v.
Johnson, 385 F.3d 503, 522 (5th Cir. 2004)).
Here, IGRC concluded that the determination of whether Plaintiff's tam was a protected
article of clothing should be made by DOCCS' central offices in Albany. Plaintiff appealed this
decision to CORC, which exhausted his remedies. After an investigation, DOCCS determined
9

that Plaintiff was not entitled to wear his tam on religious grounds. Subsequently Defendants
Antonelli and Bly participated in the decision to completely prohibit Plaintiff from both wearing
and possessing his tam.March 27, 2018 Thus, the goals of PLRA's exhaustion requirement had
been satisfied because DOCCS had notice of the free exercise problem, an opportunity to
adjudicate it with respect to Plaintiff outside of federal court, and produced a record upon which
the Court is able to utilize in resolving the controversy. As such, Magistrate Judge Dancks
correctly determined that Plaintiff exhausted his free exercise claim.
C.

Personal Involvement of Defendants Antonelli and Bly
Defendants also object to Magistrate Judge Dancks' Report-Recommendation and Order

on the grounds that Defendants Antonelli and Bly were not personally involved in violating
Plaintiff's rights. See Dkt. No. 92 at 7-8. They argue that Defendants Antonelli and Bly did not
participate in determining that the tam was not permissible as religious headgear for a member of
the Jewish faith, so they did not violate his federally protected rights. See id.
While it is true that Defendants Antonelli and Bly were not personally involved in the
CORC proceedings, they were personally involved in the deprivation. After DOCCS determined
that Plaintiff was not entitled to wear his tam on religious grounds, he was still permitted to wear
it within his cell for several months. However, in late February or early March 2013, Defendant
Morris contacted Defendants Antonelli and Bly to determine whether Plaintiff should be
permitted to keep his tam and deferred to their judgment. While they may have relied on
Defendant Morris' earlier determination that Plaintiff had no religion-based entitlement to the
tam, they still advised a course of action that resulted in a possible further deprivation. Thus,
given Defendants Antonelli and Bly's involvement in the decision to prohibit Plaintiff from
wearing the tam in his cell, there is a triable question of fact as to whether they were personally
10

involved in depriving Plaintiff of federally protected rights. As such, Magistrate Judge Dancks
correctly concluded that summary judgment should not be granted for Defendants Antonelli and
Bly.
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' Report-Recommendation and Order is
ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendants' motion for summary judgment (Dkt. No. 89) is GRANTED in
part, and DENIED in part;3 and the Court further
ORDERS that Defendant F. Waugh be terminated as a party; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 27, 2018
Albany, New York

Defendants' motion for summary judgment is granted as to Plaintiff's claims for
injunctive and declaratory relief, Plaintiff's RLUIPA monetary damages claims, and Plaintiff's
claims against Defendant Waugh. Defendants' motion for summary judgment is denied as to
Plaintiff's claims against Defendants Leifeld, Larkin, Antonelli, Bly, and Morris.
3

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