Wells et al v. Annucci et al

Filing 96

DECISION AND ORDER accepting and adopting # 89 Magistrate Judge Baxter's Report and Recommendation in its entirety; granting # 71 Defendants' Motion for Summary Judgment; and denying # 84 Plaintiff Washington's Cross-Motion for Summary Judgment. Plaintiff's complaint is dismissed in its entirety. Signed by Chief Judge Glenn T. Suddaby on 9/24/18. (lmw) (Copy served upon all pro se plaintiffs via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
PETER WELLS; PATRICK JEANTY; DERRICK
FULTON; and WAYNE WASHINGTON,
Plaintiffs,
9:16-CV-0405
(GTS/ATB)

v.
JEFF MCKOY, Dep. Comm’r of Dep’y of Corr.
and Comm. Supervision; HAROLD D. GRAHAM,
Superintendent of Auburn Corr. Fac.; JUSTIN J.
THOMAS, Superintendent of Marcy Corr. Fac.;
DONNA M. MARTIN, F.S.A., Auburn Corr. Fac.;
and MINISTER SUNNI SHABAZZ, N.O.I.
Chaplain, Auburn Corr. Fac.,
Defendants.
__________________________________________
APPEARANCES:
PETER WELLS, 07-A-0650
Plaintiff, Pro Se
Coxsackie Correctional Facility
P.O. Box 999
Coxsackie, New York 12061
PATRICK JEANTY,98-A-1874
Plaintiff, Pro Se
Attica Correctional Facility
Box 149
Attica, New York 14011
DERRICK FULTON, 08-B-2651
Plaintiff, Pro Se
Auburn Correctional Facility
P.O. Box 618
Auburn, New York 13021

OF COUNSEL:

WAYNE WASHINGTON, 02-A-3665
Plaintiff, Pro Se
Eastern NY Correctional Facility
Box 338
Napanoch, New York 12458
HON. BARBARA UNDERWOOD
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

CHRISTOPHER J. HUMMEL, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by the four
above-captioned inmates (“Plaintiffs”) against the five above-captioned employees of the New
York State Department of Corrections and Community Supervision (“Defendants”), are the
following: (1) Defendants’ motion for summary judgment; (2) Plaintiff Washington’s crossmotion for summary judgment; (3) United States Magistrate Judge Andrew T. Baxter’s ReportRecommendation recommending that Defendants’ motion be granted, Plaintiff Washington’s
cross-motion be denied, and Plaintiffs’ Complaint be dismissed in its entirety; (4) Plaintiff
Jeanty’s Objection to the Report-Recommendation; (5) Plaintiff Wells’ Objection to the ReportRecommendation; and (6) Plaintiff Washington’s Objection to the Report-Recommendation.
(Dkt. Nos. 71, 84, 89, 92, 94, 95.) For the reasons set forth below, Defendants’ motion for
summary judgment is granted, Plaintiff Washington’s cross-motion for summary judgment is
denied, and Plaintiffs’ Complaint is dismissed in its entirety.

2

I.

RELEVANT BACKGROUND
A.

Magistrate Judge Baxter’s Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Baxter rendered the
following seven findings of fact and conclusions of law: (1) a genuine dispute of material fact
exists as to whether Defendants were personally involved in the selection of mess hall staff
during Ramadan in 2014 or the development of Auburn Correctional Facility’s policy regarding
the selection of Nation of Islam inmates to work in the mess hall during Ramadan; (2) no
genuine dispute of material fact exists as to whether Defendants Graham, McKoy, Thomas and
Shabazz were personally involved in the alleged violations of Nation of Islam dietary
restrictions; (3) a genuine dispute of material fact exists as to whether Defendant Martin was
personally involved in the violations giving rise to Plaintiffs’ religious exercise and equal
protections claims; (4) no genuine dispute of material fact exists as to any religious exercise
claims arising from the selection of mess hall staff during Ramadan in 2014; (5) no genuine
dispute of material fact exists as to any religious exercise claims arising from the alleged
violation of Nation of Islam dietary restrictions during Ramadan in 2014; (6) in the alternative,
monetary relief is not available any of Plaintiffs on their RLUIPA claims, and injunctive relief is
not available to Plaintiffs Wells, Jeanty and Washington on their RLUIPA claims; and (7) no
genuine dispute of material fact exists as to any Plaintiffs’ equal protection claim. (Dkt. No. 89,
at Part IV.)
B.

Plaintiffs’ Objections to the Report-Recommendation

While Objections were filed by Plaintiffs Jeanty, Wells and Washington, they were not
filed by Plaintiff Fulton. (Dkt. Nos. 92, 94, 95.) Generally, in their Objections, Plaintiffs Jeanty,
Wells and Washington assert eleven arguments, which are described in more detail below in Part
III of this Decision and Order.
3

II.

STANDARD OF REVIEW
When a specific objection is made to a portion of a magistrate judge's report-

recommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).1
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
material that could have been, but was not, presented to the magistrate judge in the first
instance.2 Similarly, a district court will ordinarily refuse to consider argument that could have
been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ.

1

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
2

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not
abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff
“offered no justification for not offering the testimony at the hearing before the magistrate”); cf.
U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to
require the district court to conduct a second hearing whenever either party objected to the
magistrate's credibility findings would largely frustrate the plain objective of Congress to
alleviate the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b),
Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a
secondary evidentiary hearing is required.”).
4

of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge's report and recommendation that could have been raised before the magistrate but were
not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311,
312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not
consider new arguments raised in objections to a magistrate judge's report and recommendation
that could have been raised before the magistrate but were not.”) (internal quotation marks
omitted).
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court

3

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
5

subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.4
After conducting 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)(C).
III.

ANALYSIS
After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter’s

thorough Report-Recommendation, the Court can find no error in those parts of the ReportRecommendation to which Plaintiffs Jeanty, Wells and Washington have specifically objected,
and no clear error in the remaining parts of the Report-Recommendation: Magistrate Judge
Baxter employed the proper standards, accurately recited the facts, and reasonably applied the
law to those facts. As a result, the Report-Recommendation is accepted and adopted in its
entirety for the reasons stated therein. To those reasons, the Court adds the following analysis.
As a threshold basis for concluding that Defendants’ motion for summary judgment
should be granted against Plaintiff Fulton, the Court finds that, by failing to oppose Defendants’
properly supported motion, Plaintiff Fulton has lightened Defendants’ burden with regard to
their arguments for the dismissal of Plaintiff Fulton’s claims.5 At the very least, Defendants

4

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
5

See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and
the Court determined that the moving party has met to demonstrate entitlement to the relief
6

have met that modest threshold burden.6 As has often been recognized by both the Supreme
Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.
Cusamano v. Sobek, 604 F. Supp.2d 416, 426-27 & n.4 (N.D.N.Y. 2009) (Suddaby, J.) (citing
cases).7
Regarding Plaintiff Jeanty’s first objection (i.e., that Magistrate Judge Baxter failed to
recite the fact that, before the start of Ramadan, Plaintiffs had notified Defendants Graham,
McKoy, Thomas and Shabazz of their concerns regarding the staff members who were to prepare
their Ramadan meals), the Court rejects that objection. The fact of such prior notice of
Defendants Graham, McKoy and Thomas was indeed recited by Magistrate Judge Baxter in his
Report-Recommendation. (Dkt. No. 89, at 8 [“The record . . . also shows that plaintiffs alerted

requested therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722,
2009 WL 2473509, at *2 & nn. 2, 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
6

Alternatively, the court can deem, and does deem, the challenged claims
abandoned (regardless of the facial merit of the unresponded-to argument). See Jackson v. Fed.
Exp., 766 F.3d 189, 197-98 (2d Cir. 2014) (“Where a partial response to a motion is made–i.e.,
referencing some claims or defenses but not others–a distinction between pro se and counseled
responses is appropriate. In the case of a pro se, the district court should examine every claim or
defense with a view to determining whether summary judgment is legally and factually
appropriate. In contrast, in the case of a counseled party, a court may, when appropriate, infer
from a party's partial opposition that relevant claims or defenses that are not defended have been
abandoned. In all cases in which summary judgment is granted, the district court must provide an
explanation sufficient to allow appellate review. This explanation should, where appropriate,
include a finding of abandonment of undefended claims or defenses.”).
7

The Court notes that Plaintiff Fulton was sufficiently advised of the consequences
of failing to submit such a proper response to Defendants’ motion through his receipt of, and/or
access to, the following documents: (1) the courtesy copies of Local Rule 7.1(b)(3) of the
District’s Local Rules of Practice and pages 39 and 40 of the District’s Pro Se Handbook, which
were on file at Plaintiff Fulton’s Correctional Facility when Defendants served him with their
motion; (2) the Notice of Consequences of Failing to Respond that was provided to Plaintiff
Fulton by Defendants in their motion for summary judgment (Dkt. No. 71, at 3); and (3) a
secondary Notification of Consequences of Failing to Respond that was provided by the Court
(Dkt. No. 72, at 2).
7

defendants Graham, McKoy, and Thomas about their concerns regarding the selection of mess
hall staff immediately prior to Ramadan in 2014.”].) Plaintiff Jeanty’s assertion that Defendant
Shabazz also received prior notice is not supported by the record evidence he cites in his
Objection. (Dkt. No. 92, at 1 [citing deposition testimony of Jeanty and Wells].) In any event,
the fact of such prior notice is immaterial given Magistrate Judge Baxter’s finding that a genuine
dispute of material fact exists regarding whether Defendant Shabazz was personally involved in
the alleged violations through (1) his selection of mess hall staff during Ramadan in 2014, and
(2) his investigation of the issues in question. (Dkt. No. 89, at 8.) The Court notes that, while it
may have reached a different conclusion that Magistrate Judge Baxter on the personal
involvement of Defendant Shabazz, it finds no clear error in that conclusion.
Regarding Plaintiff Jeanty’s second objection (i.e., that Magistrate Judge Baxter
incorrectly assumed that an inmate who is a registered member of the Nation of Islam is
therefore a practicing Muslim, given Plaintiff Jeanty’s deposition testimony to the contrary), the
Court rejects that objection as well.8 As an initial matter, Plaintiff Jeanty’s reliance on his own
deposition testimony is misplaced, given that it merely (1) raised the possibility that a registered
member of the Nation of Islam is not an actual adherent to the Islamic faith, and (2) stated that
he personally had seen two of the staff members only “sometimes” in Islamic class. (Dkt. No.
92, at 2; Dkt. No. 71, Attach. 2, at 141-42 [attaching pages “24” and “25” of Jeanty Depo.
Trans.].) In any event, Magistrate Judge Baxter’s inference that an inmate who has registered as

8

The Court notes that this argument reiterates an argument previously asserted by
Plaintiff Jeanty. (Compare Dkt. No. 92, at ¶ 1 [Plf. Jeanty’s Obj.] with Dkt. No. 80, Attach. 2, at
12 [attaching page “10” of Plf. Jeanty’s Opp’n Memo. of Law].) As a result, the “challenged”
portion of the Report-Recommendation is entitled to only a clear-error review, which it easily
survives. In the alternative, that portion of the Report-Recommendation survives a de novo
review for the reasons set forth above.
8

a member of the Nation of Islam also practices the religion of Islam was supported by the
deposition testimony of Plaintiff Wells (while the testimony of Plaintiff Fulton did not negate
that inference and the testimony of Plaintiff Washington suffered from defects similar to that of
Plaintiff Jeanty. (Dkt. No. 71, Attach. 2, at 59 [attaching page “56” of Wells Depo. Trans.]; Dkt.
No. 71, Attach. 2, at 210-11 [attaching pages “15” and “16” of Fulton Depo. Trans.]; Dkt. No.
71, Attach. 2, at 278-79 [attaching pages “24” and “25” of Washington Depo. Trans.].)
Moreover, even if Magistrate Judge Baxter’s inference could be found to be unreasonable, the
Court would be persuaded by his finding that Auburn Correctional Facility’s Ramadan policy in
2014 did not impose a substantial burden on Plaintiffs’ religion, because Defendants selected at
least one member of the Nation of Islam to prepare the Ramadan meals in question.
Regarding Plaintiff Jeanty’s third objection (i.e., Magistrate Judge Baxter incorrectly
assumed that Plaintiff had testified in his deposition that sometimes he refused to eat not because
of a lack of religiously compliant food but because of unrelated stress), the Court rejects that
objection as well. Despite Plaintiff Jeanty’s late-blossoming attempt to change his deposition
testimony, Magistrate Judge Baxter’s interpretation of that deposition testimony is entirely
reasonable. (Dkt. No. 71, Attach. 2, at 150-51 [attaching pages “33” and “34” of Jeanty Depo.
Trans., testifying that he “[s]ometimes” did not eat food that complied with his dietary laws
because “I was so frustrated I didn’t touch anything. . . . I remember that particular year was a
trying time and a stressful moment for me during Ramadan and I had a hard time even touching
anything in that mess hall”].)
Regarding Plaintiff Wells’ first objection (i.e., that Magistrate Judge Baxter incorrectly
found that Plaintiffs have not presented any evidence that the Nation of Islam has any
requirement or guidance regarding who may prepare meals during Ramadan), the Court rejects

9

that objection. Plaintiff Wells’ reliance on the DOCCS memorandum of May 22, 2014, is
misplaced. A DOCCS policy is not the same as a requirement of, or guidance by, the Nation of
Islam. This is especially true for a policy that states merely that “Muslim inmates should be
selected to be part of the food preparation team . . . .” (Dkt. No. 83, Attach. 3, at 29 [emphasis
added].)
Regarding Plaintiff Wells’ second objection (i.e., that Magistrate Judge Baxter
incorrectly found that Plaintiffs have not shown a substantial burden on their religion but merely
a de minimis burden), the Court rejects that objection as well. Plaintiff Wells focuses on the fact
that the violations were not “isolated” but were “several” in number. However, more important
here are (1) the fact that the violations consisted not of denials of entire meals but mere
inadequacies in certain aspects of some of Plaintiffs’ meals (usually side dishes and dessert
items), and (2) Plaintiffs would regularly supplement those meals with religiously permissible
foods otherwise obtained by them.
Regarding Plaintiff Wells’ third objection (i.e., that Magistrate Judge Baxter incorrectly
found that Plaintiffs have failed to state an equal protection claim), the Court rejects that
objection as well.9 By simply repeating his allegation that Defendants’ policy showed a
preference for one religion (i.e., the Rastafarian religion) over another (i.e., the religion of
Islam), Plaintiff Wells’ overlooks Magistrate Judge Baxter’s finding that, based on the current
record, there have, in fact, been no inconsistent applications of DOCCS’ policy on the subject

9

The Court notes that this argument reiterates an argument previously asserted by
Plaintiff Wells. (Compare Dkt. No. 94, at ¶ 3 [Plf. Wells’ Obj.] with Dkt. No. 83, Attach. 2, at
19 [attaching page “17” of Plf. Wells’ Opp’n Memo. of Law].) As a result, the “challenged”
portion of the Report-Recommendation is entitled to only a clear-error review, which it easily
survives. In the alternative, that portion of the Report-Recommendation survives a de novo
review for the reasons set forth above.
10

(which merely prioritizes inmates who have already been cleared to work in the mess hall, and
provides that, when the Food Service Administrator and chaplain are unable to identify enough
inmates of the relevant faith group who are programmed in the Mess Hall, the chaplain may
suggest other non-Mess Hall inmates of that faith group to cook).
Regarding Plaintiff Washington’s objection that Magistrate Judge Baxter incorrectly
found no personal involvement by Defendants Graham, McKoy, Thomas and Shabazz in the
alleged violations of Nation of Islam dietary restrictions, the Court rejects that objection. Even if
substantiated by the record, Plaintiff Washington’s assertion that these four Defendants
“sudden[ly] enforce[d] . . . a policy that had been written three years prior” would not serve as
admissible evidence from which a rational fact finder could conclude that they were personally
involved in the alleged violations of Nation of Islam dietary restrictions.
Regarding Plaintiff Washington’s objection that Magistrate Judge Baxter incorrectly
found that Plaintiffs have conceded that at least one of the staff members in question was a
member of the Nation of Islam and thus a practicing religion, the Court rejects this objection for
the same reasons that it rejects Plaintiff Jeanty’s second objection above.
Regarding Plaintiff Washington’s objection that Magistrate Judge Baxter incorrectly
found that Plaintiffs have not shown a substantial burden on their religion, the Court rejects this
objection for the same reasons that it rejects Plaintiff Wells’ second objection above. To those
reasons, the Court adds only that whether a hypothetical inmate might not have sufficient funds
in his commissary account sufficient to pay for supplemental food items is immaterial to this
action, given that it is undisputed that Plaintiffs did in fact supplement their inadequate meals
through food purchased from the commissary.

11

Regarding Plaintiff Washington’s objection that Magistrate Judge Baxter incorrectly
interpreted Plaintiffs’ claims as alleging that “Ramadan meals do not comply with a state policy
such as the State Menu,” the Court rejects that objection as well. Magistrate Judge Baxter did not
base the bulk of his analysis on such an interpretation but merely noted in a footnote that, “[t]o
the extent that” Plaintiffs were attempting to assert such a claim, that claim would not be
actionable. (Dkt. No. 89, at 18, n.5.)
Finally, regarding Plaintiff Washington’s objection that Magistrate Judge Baxter
incorrectly found that Plaintiffs have failed to state an equal protection claim, the Court rejects
that objection for the same reasons that it rejects Plaintiff Wells’ third objection above.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 89) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 71) is
GRANTED, Plaintiff Washington’s cross-motion for summary judgment (Dkt. No. 84) is
DENIED, and Plaintiffs’ Complaint (Dkt. No. 1) is DISMISSED in its entirety.
Dated: September 24, 2018
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

12