Shakur v. Graham et al

Filing 12

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Dancks' September 17, 2014 6 Order and Report- Recommendation is ADOPTED in its entirety for the reasons stated therein. ORDERED, that the Clerk shall issue summonses and forward them, along with copies of the complaint, to the United States Marshal for service upon the remaining Defendants. The Clerk shall forward a copy of the summons and complaint by mail to the Office of the New York State Attorney General, together with a copy of this Memorandum-Decision and Order and Magistrate Judge Dancks' Order and Report-Recommendation. ORDERED, that Plaintiff's 42 U.S.C. §§ 1983, 1985, and 1986 claims for monetary damages against all Defendants in their o fficial capacities, as well as Plaintiff's RLUIPA claims for monetary damages against all Defendants in both their official and individual capacities claims are DISMISSED with prejudice. Signed by U.S. District Judge Mae A. D'Agostino on 5/1/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SHABAKA SHAKUR,
Plaintiff,
vs.

9:14-cv-00427
(MAD/TWD)

HAROLD GRAHAM, in his official capacity as
Superintendent; JUSTIN THOMAS, individually and
in his official capacity as Deputy Superintendent of
Programs; CHUTTY, individually and in his official
capacity as Security Captain; E. FAGAN, individually
and in his official capacity as Captain; ROGOFSKY,
individually and in his official capacity as Sergeant;
MURRAY, individually and in his official capacity as
Sergeant; G. STEINBERG, individually and in his
official capacity as Correctional Officer; GIFFORD,
individually and in his official capacity as Correctional
Officer; PELT, individually and in his official capacity as
Correctional Officer; HEWITE, individually and in his
official capacity as Correctional Officer; and DONNA
MARTIN, individually and in her official capacity as
Food Service Administrator,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

SHABAKA SHAKUR
89-A-2546
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
Plaintiff pro se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff pro se Shabaka Shakur, an inmate in the custody of the New York State
Department of Corrections and Community Supervision ("DOCCS"), commenced this action

pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 alleging violations of his constitutional rights
under the First, Eighth and Fourteenth Amendments, as well as under the Religious Land Use and
Institutionalized Person Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq. See Dkt. No. 1. Thereafter,
Plaintiff made an application to proceed in forma pauperis ("IFP") under 28 U.S.C. § 1915. See
Dkt. No. 2. Magistrate Judge Thérèse Wiley Dancks granted Plaintiff IFP status. See Dkt. No. 6.
In her Order and Report-Recommendation, Magistrate Judge Dancks recommended that
(1) Defendants Pelt and Martin be required to respond to the First Amendment claim in Plaintiff's
first cause of action; (2) Defendant Thomas be required to respond to Plaintiff's third cause of
action; (3) Defendants Hewite and Steinberg be required to respond to Plaintiff's fifth cause of
action; (4) Defendants Chutty and Gifford be required to respond to Plaintiff's retaliation claim
regarding the events on September 17, 2012 asserted in his seventh cause of action; (5) Defendant
Steinberg be required to respond to Plaintiff's retaliation claim regarding the events of August 12,
2013 asserted in his seventh cause of action; (6) Defendants Pelt, Hewite, and Steinberg be
required to respond to the First Amendment claim in Plaintiff's seventh cause of action; and (7)
Defendant Fagan be required to respond to Plaintiff's retaliation claim regarding his placement in
administrative segregation asserted in his seventh cause of action. Id.
The Order and Report-Recommendation further recommended that this Court dismiss
Plaintiff's 42 U.S.C. §§ 1983, 1985, and 1986 claims for monetary damages with prejudice against
all Defendants in their official capacities, as well as Plaintiff's RLUIPA claims for monetary
damages against all Defendants in both their official and individual capacities. Id. Lastly,
Magistrate Judge Dancks recommended that Plaintiff's remaining claims against the named
Defendants be dismissed without prejudice, thereby recommending that Plaintiff be granted leave

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to amend with regard to those claims.1
Currently before the Court are Plaintiff's objections to Magistrate Judge Dancks' Report
Recommendation and Order. See Dkt. No. 7.
II. BACKGROUND2
At all relevant times, Plaintiff was incarcerated at Auburn Correctional Facility
("Auburn"). Dkt. No. 1 at ¶¶ 23, 45. During this time, Plaintiff was the inmate facilitator of the
Shia Muslim community at Auburn. Id. On September 17, 2012, Plaintiff was ordered to
undergo a urinalysis, which ultimately was negative for drug usage. Following the urinalysis,
Defendant Gifford searched Plaintiff's cell, recovering a weapon which Plaintiff contends was
"planted" by Defendant Gifford. As a result of the uncovered weapon, Plaintiff was immediately
placed in the Special Housing Unit ("SHU"). Id. at ¶¶ 27-30.
On October 27, 2012 the Islamic Eid ul Adaha ("Eid") feast, "a major religious
observation central to the Islamic faith," was held. Id. at ¶ 38. Plaintiff was a named participant
pursuant to his religious designation as a practitioner of the Islamic faith. Id. at ¶ 39. According
to Plaintiff's complaint, "[t]he policy at Auburn prison allows prisoners confined to SHU to
observe the Eid by . . . providing them with the Halal meal prepared for the event." Id. at ¶ 40.
During distribution of the noon meal, Plaintiff contends that he requested his Halal meal and was

In response to Magistrate Judge Dancks' Order and Report-Recommendation, Plaintiff
has withdrawn (1) his 42 U.S.C. §§ 1983, 1985, and 1986 claims for monetary damages against
Defendants in their official capacity; (2) his RLUIPA claim for monetary damages against
Defendants in their official and individual capacity; (3) all claims against Defendant Rogofsky;
(4) his retaliation claim against Defendant Fagan regarding the events of August 12, 2013; and (5)
all claims against Defendant Graham. See Dkt. No. 7 at 4-5.
1

The following facts are specifically tailored to Plaintiff's present objections. For a
complete statement of the underlying facts in this case, the Court refers the parties to Magistrate
Judge Dancks' September 17, 2014 Order and Report-Recommendation. See Dkt. No. 6.
2

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informed by Defendant Pelt that "the messhall had not sent any halal meals to SHU." Id. at ¶ 42.
However, upon further inquiry, Plaintiff received a letter from Defendant Martin indicating that
"the meals were prepared and delivered to the elevator for SHU." Dkt. No. 1-1 at 7.
Plaintiff subsequently filed a grievance on November 2, 2012, and was allegedly informed
by non-party Sergeant Manna on November 7, 2012 that "no muslim inmates received a halal
meal on October 27, 2012." Dkt. No. 1 at ¶¶ 51, 53. On January 22, 2013, Plaintiff received a
formal grievance response from Defendant Thomas, stating that the "[f]ood service staff has been
reminded to closely monitor special diet delivery locations. Grievance is granted to that extent."
Dkt. No. 1-1 at 20. Plaintiff replied on January 25, 2013, requesting that Defendant Thomas
institute a signing procedure to insure that religious meals are received by adherents." Dkt. No. 1
at ¶ 58; see also Dkt. No. 1-1 at 22. Plaintiff contends that he subsequently did not receive Halal
meals during either his thirty-day fast of Ramadan in July 2013 or his six-day fast of Shawwal in
August 2013. See Dkt. No. 1 at ¶¶ 66, 70, 76, 83.
Plaintiff commenced this civil rights action on April 16, 2014. See Dkt. No. 1. Pursuant
to 28 U.S.C. §§ 1915(e), 1915A, Plaintiff's complaint underwent an initial screening regarding the
sufficiency of the allegations contained therein. On September 17, 2014, Magistrate Judge
Dancks filed an Order and Report-Recommendation recommending that several of Plaintiff's
causes of action be dismissed. See Dkt. No. 6 at 28-30. Plaintiff filed written objections on
October 6, 2014, specifically objecting to Judge Dancks' sixth recommendation to dismiss
Plaintiff's first cause of action against Defendant Thomas. See Dkt. No. at 7 at 2.
III. DISCUSSION
A.

Standard of Review
When specific objections to a magistrate judge's report-recommendation and order are
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made, 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). If, however a party files "[g]eneral or conclusory objections or objections which
merely recite the same arguments [that he presented] to the magistrate judge,"the magistrate
judge's recommendations are reviewed for clear error. O'Diah v. Mawhir, No. 9:08-CV-322,
2011 WL 933846, at *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). The court
will "ordinarily refuse to consider argument[s] that could have been, but [were] not, presented to
the magistrate judge in the first instance." Mosley v. Superintendent of Collins Corr. Facility, No.
9:11-CV-1416, 2015 U.S. Dist. LEXIS 6985, at *5 (N.D.N.Y. Jan. 22, 2015) (citations omitted).
Upon 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).
Additionally, when a plaintiff seeks to proceed IFP, "the court shall dismiss the case at
any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails
to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). "[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, 92 S. Ct. 594, 30 L. Ed. 2d 652 (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)). Nevertheless, "there is a responsibility on the court to
determine that a claim has some arguable basis in law before permitting a plaintiff to proceed
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with an action in forma pauperis." Moreman v. Douglas, 848 F. Supp. 332, 333–34 (N.D.N.Y.
1994) (internal citations omitted).
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 (2007).
"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 complaint 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. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)).
As a general matter, "'the district court has discretion whether or not to grant leave to
amend, and its decision is not subject to review on appeal except for abuse of discretion.'" Shomo
v. New York, 374 Fed. Appx. 180, 182 (2d Cir. 2010) (quoting Salahuddin v. Cuomo, 861 F.2d 40,
42 (2d Cir. 1988)). An opportunity to amend is not required where "the problem with [plaintiff's]
causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). As the Second Circuit has explained, "[w]here
it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of
discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993). However, because "[a] pro se complaint is to be read liberally . . . the court should not
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dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might bet stated." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (citation and internal quotation marks omitted).
B.

Plaintiff's Objections to Report-Recommendation
In the present case, Plaintiff 's sole objection to Magistrate Judge Dancks' Order and

Report-Recommendation is that his first cause of action against Defendant Thomas should not be
dismissed. See Dkt. No. 7 at 2. Having reviewed the Order and Report-Recommendation, and
Plaintiff's objections thereto, the Court finds that Magistrate Judge Dancks correctly determined
that Plaintiff's first cause of action against Defendant Thomas should be dismissed.
1. Direct Involvement
First, Plaintiff "objects to and disagrees with Magistrate Judge Dancks' finding that [the]
facts do not allege direct involvement by Defendant Thomas" with respect to Plaintiff's first cause
of action. Id. Plaintiff specifically contends that Defendant Thomas "was a part of the Special
Events program committee, and directly involved in planning, coordinating and implementing the
Eid, including the distribution of the religious meals." Id. In short, Plaintiff contends that
"Defendant Thomas was personally involved in as much as he created the policy under which this
violation occurred." Id.
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the
complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the
plaintiff of rights and privileges secured by the Constitution, but the actions or omissions
attributable to each defendant must be the proximate cause of the injuries and consequent
damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.
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1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied,
445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a
section 1983 action, he must establish a causal connection between the acts or omissions of each
defendant and any injury or damages he suffered as a result of those acts or omissions. See id.
(citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L.
Ed. 2d 619 (1979)) (other citation omitted).
"[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) (internal quotation and citations omitted). "'[W]hen monetary damages are sought under §
1983, the [] doctrine of respondeat superior does not suffice and a showing of some personal
responsibility of the defendant is required.'" Id. (quotation omitted). There is a sufficient
showing of personal involvement of a defendant if:
(1) the defendant directly participated 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). The continuing vitality of the supervisory
liability test established in Colon has come into questions after the Supreme Court's 2009 decision
in Iqbal. See Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012). There, the Supreme
Court noted that "[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the officials own individual actions, has
violated the Constitution." Iqbal, 556 U.S. at 676.
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The Second Circuit has not yet definitively addressed how Iqbal affects the Colon factors,
nor have the district courts within this Circuit reached a clear consensus. See Aguilar v.
Immigration & Customs Enforcement Div., 811 F. Supp. 2d 803, 814 (S.D.N.Y. 2011). Despite
the lack of agreement regarding the Colon factors, it has been held that the third factor, that
defendant created a policy or custom under which unconstitutional practices occurred, has
survived Iqbal. See Bellamy v. Mount Vernon Hosp., No. 07-cv-1801, 2009 WL 1835939, *6
(S.D.N.Y. June 26, 2009) ("Only the first and part of the third Colon categories pass Iqbal's
muster — a supervisor is only held liable if that supervisor participates directly in the alleged
constitutional violation or if that supervisor creates a policy or custom under which
unconstitutional practices occurred"), aff'd sub nom. Bellamy v. Mount Vernon Hosp., 387 Fed.
Appx. 55 (2d Cir. 2010). It is under this factor that Plaintiff contends Defendant Thomas is
personally involved.

Upon review of Plaintiff's complaint, the only indication of Defendant Thomas'
involvement with Plaintiff's failure to receive a Halal meal for the Eid feast was simply his
receipt of, and response to, Plaintiff's grievance letter after the alleged deprivation. Plaintiff does
initially contend, however, that Defendant Thomas was "responsible for all aspects of the
implementation and operation of programs at Auburn . . . ." Dkt. No. 1 at ¶ 7. Nevertheless,
Plaintiff did not plead, as he now argues, that Defendant Thomas was specifically responsible for
coordinating and implementing the meals for Eid through his involvement with the Special
Events program committee. See Dkt. No. 7 at 2. Plaintiff concedes that "[d]iscovery should
provide the Court with the Special Events program package for the Eid Event which denotes
Defendant Thomas['] involvement." Since there are no allegations in Plaintiff's complaint,
however, which sufficiently indicate Defendant Thomas' personal involvement in the
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coordination and implementation of Eid feast, the Court finds Plaintiff's initial pleading to be
insufficient so far as it does not allege that Defendant Thomas created the policy under which the
violation occurred.
Accordingly, the Court adopts Magistrate Judge Dancks' recommendation to dismiss
without prejudice Plaintiff's first cause of action to the extent it finds Defendant Thomas was not
personally involved with the alleged constitution deprivation
2. Failure to Remedy
Plaintiff further "objects to and disagrees with Magistrate Judge Dancks' finding that there
was nothing Defendant 'Thomas could have done to remedy what had occurred.'" Dkt. No. 7 at 3.
As Plaintiff concedes, Defendant Thomas "could not make up for the missed religious meals."
Id. Plaintiff's contends, however, that Defendant Thomas should have taken steps to "track or
confirm the receipt of the halal meals." Id. Upon receiving Plaintiff's grievance, however,
Defendant Thomas informed food services to closely monitor special diet delivery locations in
the future. See Dkt. No. 1-1 at 20. Although Plaintiff may consider the grievance response to be
inadequate, Defendant Thomas was under no obligation to implement the type of signing
procedure Plaintiff so desired.
Accordingly, the Court adopts Magistrate Judge Dancks' recommendation to dismiss
without prejudice Plaintiff's first cause of action to the extent it finds Defendant Thomas could
not remedy Plaintiff's actual deprivation of the Eid meal.
C.

Clear Error Review of the Report-Recommendation
Since Plaintiff has specifically objected only to Magistrate Judge Dancks' sixth

recommendation, the remaining recommendations are review by the Court for clear error. See
Almonte v. N.Y. State Div. of Parole, No. 9:04-cv-484, 2006 WL 149049, *5 (N.D.N.Y Jan. 18,
10

2006). Upon careful review, the Court finds that Magistrate Judge Dancks applied the
appropriate legal standards, accurately recited the facts as presented by Plaintiff, and correctly
applied the law to those facts. Accordingly, the Court finds no evidence of clear error in the
remainder of Magistrate Judge Dancks' Order and Report-Recommendation.
IV. CONCLUSION
After carefully considering Magistrate Judge Dancks' Order and Report-Recommendation,
Plaintiff's objections thereto, and the applicable law, and for the reasons stated herein, the Court
hereby
ORDERS that Magistrate Judge Dancks' September 17, 2014 Order and ReportRecommendation is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that the Clerk shall issue summonses and forward them, along with copies of
the complaint, to the United States Marshal for service upon the remaining Defendants. The
Clerk shall forward a copy of the summons and complaint by mail to the Office of the New York
State Attorney General, together with a copy of this Memorandum-Decision and Order and
Magistrate Judge Dancks' Order and Report-Recommendation; and the Court further
ORDERS that Defendants, or their counsel, shall file a response to the remaining claims
in the complaint as provided for in Rule 12 of the Federal Rules of Civil Procedure after service
of process on the Defendants; and the Court further
ORDERS that Plaintiff's 42 U.S.C. §§ 1983, 1985, and 1986 claims for monetary
damages against all Defendants in their official capacities, as well as Plaintiff's RLUIPA claims
for monetary damages against all Defendants in both their official and individual capacities
claims are DISMISSED with prejudice; and the Court further
ORDERS that Plaintiff may file an amended complaint as to those claims that were
11

dismissed without prejudice; and the Court further
ORDERS that the Clerk of the Court shall serve Plaintiff with a copy of this
Memorandum-Decision and Order in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 1, 2015
Albany, New York

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