Quick v. Annucci et al

Filing 7

DECISION AND ORDER: ORDERED, that plaintiff's IFP Application (Dkt. No. 2 ) is GRANTED. ORDERED that (1) the claims for monetary damages pursuant to RLUIPA and (2) the claims for monetary damages against the defendants in their official capa cities under Section 1983 are DISMISSED with prejudice. ORDERED that all claims against defendants Annucci and McCoy are DISMISSED without prejudice in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. ORDERED that defendants Annucci and McCoy are DISMISSED without prejudice as defendants. ORDERED that the Clerk shall issue a summons and forward it, along with a copy of the complaint, to the United States Marshal for service upon defendant Miller. ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 4 ) is DENIED. Signed by Chief Judge Glenn T. Suddaby on 8/29/16. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DESMOND QUICK,
Plaintiff,
v.

9:16-CV-0958
(GTS/CFH)

ANTHONY ANNUCCI, et al.,

Defendants.

APPEARANCES:
DESMOND QUICK
03-B-1945
Plaintiff, pro se
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
GLENN T. SUDDABY
Chief United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
The Clerk has sent to the Court a civil rights complaint and application to proceed in

forma pauperis filed by pro se plaintiff Desmond Quick pursuant to 42 U.S.C. § 1983
("Section 1983"). Dkt. No. 1 ("Compl."); Dkt. No. 2 ("IFP Application").1 The complaint
asserts violations of plaintiff's rights under the United States Constitution and the Religious
Land Use and Incarcerated Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1. See generally

1

Plaintiff has two other civil actions pending in the Northern District of New York. See Quick v. Omittee,
No. 9:14-CV-1503 (TJM/CFH) and Quick v. Minale, No. 9:16-CV-0807 (BKS/DJS).

Compl. Plaintiff is currently incarcerated in the custody of the New York State Department of
Corrections and Community Supervision ("DOCCS") at Great Meadow Correctional Facility
("Great Meadow C.F.") and has not paid the statutory filing fee. Plaintiff has also filed a
motion for preliminary injunctive relief. Dkt. No. 4.
II.

DISCUSSION
A.

IFP Application

Upon review of plaintiff's IFP Application (Dkt. No. 2), the Court finds that plaintiff has
demonstrated sufficient economic need and may commence this action without prepayment
of the filing fee. Thus, plaintiff's IFP Application is granted.2
B.

Initial Screening

Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) .
. . the court shall dismiss the case at any time if the court determines that – . . . (B) the action
. . . (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).3 Thus, even if a plaintiff meets the financial criteria to commence an action in
forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly
maintain the complaint that he filed in this District before the court may permit the plaintiff to
proceed with this action in forma pauperis. See id.

2

"28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without
prepayment of the filing fee that would ordinarily be charged." Cash v. Bernstein, No. 09-CV-1922, 2010 WL
5185047, at *1 (S.D.N.Y. Oct. 26, 2010). "Although an indigent, incarcerated individual need not prepay the filing
fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic
withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d
18, 21 (2d Cir. 2010)).
3
To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an
arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

2

Likewise, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action
in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity" and must "identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or . . . seeks monetary relief from a defendant who is
immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d
Cir. 1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against
government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (stating that both sections 1915 and 1915A are available to evaluate
prisoner pro se complaints).
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se
litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before
the adverse party has been served and both parties (but particularly the plaintiff) have had an
opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal
citations omitted). Therefore, 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) (citing
Twombly, 550 U.S. at 556). 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
3

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). "[W]here 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)). Rule 8 "demands more than an unadorned, the-defendantunlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement"
will not suffice. Id. (internal quotation marks and alterations omitted).
C.

Summary of the Complaint

Plaintiff names three defendants in the caption of his complaint: Anthony Annucci,
Commissioner of DOCCS; Christopher Miller, Superintendent, Great Meadow Correctional
Facility; and Jeff McKoy, Deputy Commissioner for Program Services, DOCCS. Compl. at 13. Plaintiff asserts allegations of wrongdoing that occurred while he was incarcerated at
Great Meadow C.F. See generally Compl. The following facts are set forth as alleged by
plaintiff in his complaint. Plaintiff is a practicing Shi'ite Muslim. Compl. at 4. On March 26,
2016, plaintiff filed a grievance requesting that he receive the Cold Alternative Diet, also
known as the Kosher diet. Id. On April 15, 2016, the Inmate Grievance Review Committee
("IGRC") denied plaintiff's grievance stating that the Cold Alternative Diet was only available
for inmates of the Jewish Faith. Id. On April 16, 2016, plaintiff appealed the denial of his
grievance to defendant Miller, but as of the date that he filed this action in August, 2016, he
had not received a response to his appeal. Id. at 4-5. On May 22, 2016, plaintiff asked the
IGRC to forward his unanswered grievance appeal to the Central Office Review Committee
("CORC"). Id. at 5. Plaintiff also wrote to CORC personally and explained that defendant
4

Superintendent Miler never responded to his grievance appeal. Id. DOCCS Directives state
that the Cold Alternative Diet is for multiple religions not just for those of the Jewish Faith. Id.
In support of his grievance, plaintiff argued that "Muslims and people of the Jewish Faith have
similar[ ] religious law concerning food handling and that dietary concerns are a major ten[et]
of plaintiff's beliefs." Id. Plaintiff claims that all the other meals available to inmates "do not
allow [him] to adhere to [his] religious belief." Id. Plaintiff requests monetary damages and
injunctive relief. Id. at 7. For a more complete statement of plaintiff's claims, refer to the
complaint.
Construing the complaint liberally, plaintiff alleges that the defendants violated his
religious rights under the First Amendment and RLUIPA, and denied him equal protection in
violation of the Fourteenth Amendment.
D.

Analysis

Plaintiff brings this action pursuant to Section 1983, which establishes a cause of
action for "'the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537,
573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting
42 U.S.C. § 1983)) (footnote omitted); see also Myers v. Wollowitz, No. 6:95-CV-0272
(TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that "§ 1983 is the
vehicle by which individuals may seek redress for alleged violations of their constitutional
rights." (citation omitted)). "Section 1983 itself creates no substantive rights, [but] . . . only a
procedure for redress for the deprivation of rights established elsewhere." Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).

5

"It is well settled in this Circuit that 'personal 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) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880,
885 (2d Cir. 1991)). Thus, "a Section 1983 plaintiff must 'allege a tangible connection
between the acts of the defendant and the injuries suffered.'" Austin v. Pappas, No. 04-CV7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d
260, 263 (2d Cir. 1986)) (other citation omitted).
The First Amendment Free Exercise Clause guarantees the right to free exercise of
religion. Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). The Free Exercise Clause, and the
First Amendment generally, applies to prison inmates, subject to certain limitations. Ford v.
McGuinnis, 352 F.3d 582, 588 (2d Cir. 2003) ("Prisoners have long been understood to retain
some measure of the constitutional protection afforded by the First Amendment's Free
Exercise Clause.") (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). "Balanced against the
constitutional protections afforded prison inmates, including the right to free exercise of
religion, [however,] are the interests of prison officials charged with complex duties arising
from administration of the penal system." Id. (citing Benjamin v. Coughlin, 905 F.2d 571, 574
(2d Cir. 1990)). Similarly, RLUIPA provides that "[n]o government shall impose a substantial
burden on the religious exercise of a person residing in or confined to an institution . . . unless
the government demonstrates that imposition of the burden on that person (1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a). Prisoners have
a right to a diet consistent with their religious beliefs. Ford, 352 F.3d at 597; McEachin v.
McGuinnis, 357 F.3d 197, 203-04 (2d Cir. 2004).
6

The Equal Protection Clause requires that the government treat all similarly situated
people alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Specifically, the Equal Protection Clause "bars the government from selective adverse
treatment of individuals compared with other similarly situated individuals if 'such selective
treatment was based on impermissible considerations such as race, religion, intent to inhibit
or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a
person.'" Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (quoting LeClair v. Saunders,
627 F.2d 606, 609-10 (2d Cir. 1980)). To state a viable claim for denial of equal protection, a
plaintiff generally must allege "purposeful discrimination . . . directed at an identifiable or
suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). In the alternative,
under a "class of one" theory, plaintiff must allege that he has been intentionally treated
differently from others similarly situated, with no rational basis for the difference in treatment.
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); DeMuria v. Hawkes, 328 F.3d
704, 706 (2d Cir. 2003).4

4

In analyzing an equal protection claim vis a vis a DOCCS policy on the number of religious holidays
inmates may celebrate with families, the Second Circuit recently stated:
We are not so certain that where, as here, the state expressly classifies inmates on the basis of
religion in the prison context, a plaintiff challenging the state's express classification on Equal
Protection grounds must show either (1) that she was treated differently than members of a
similarly situated group, cf. Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir. 2001) ("[A] plaintiff who
... alleges an express racial classification ... , is not obligated to show a better treated, similarly
situated group of individuals of a different race in order to establish a claim of denial of equal
protection."); or (2) that the state's express classification was the result of intentional
discrimination, cf. Brown v. City of Oneonta, N.Y., 221 F.3d 329, 337 (2d Cir. 2000) (explaining
that one of the "ways [in which] a plaintiff [can] plead intentional discrimination that violates the
Equal Protection Clause" is to "point to a law or policy that ‘expressly classifies persons on the
basis of race'" (quoting Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999))). Further, it
appears that we have previously considered religious Equal Protection challenges (to both
express religious classifications and policies generally applicable to all religious groups) in the
prison context without requiring plaintiffs to show that they were treated differently than members
of a similarly situated group, or that the state's policy was the result of intentional discrimination.
See, e.g., Benjamin, 905 F.2d at 577-79.

7

1. Monetary Damages Under RLUIPA
RLUIPA does not authorize claims for monetary damages against state officers in
either their official or individual capacities. Washington v. Gonyea, 731 F.3d 143, 145-46 (2d
Cir. 2013) (per curiam) (citing Sossamon v. Texas, 563 U.S. 277, 292-93 (2011)). Thus,
plaintiff's claims for monetary damages under RLUIPA are barred and those claims are
dismissed.
2. Official Capacity Claims Under Section 1983
The Eleventh Amendment has long been construed as barring a citizen from bringing a
suit against his or her own state in federal court, under the fundamental principle of
"sovereign immunity." U.S. Const. amend. XI ("The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State."); Hans v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur d'Alene Tribe
of Idaho, 521 U.S. 261, 267 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984). Eleventh Amendment immunity is lost only if Congress unequivocally
abrogates states' immunity or a state expressly consents to suit. Gollomp v. Spitzer, 568
F.3d 355, 365-66 (2d Cir. 2009). It is well-settled that Congress did not abrogate states'
immunity through Section 1983, see Quern v. Jordan, 440 U.S. 332, 343-45 (1979), and that
New York State has not waived its immunity from suit on the claims asserted in plaintiff's
complaint. See generally Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40
(2d Cir. 1977); Dawkins v. State of New York, No. 93-CV-1298 (RSP/GJD), 1996 WL 156764
at *2 (N.D.N.Y. 1996). Actions for damages against a state official in his or her official
Smith v. Perlman, No. 15-117-pr, 2016 WL 4129233, at *3 (2d Cir. Aug. 3, 2016) (Summary Order).

8

capacity are essentially actions against the state. See Will v. Mich. Dep't. of State Police,
491 U.S. 58, 71 (1989).5
Here, insofar as plaintiff seeks an award of money damages pursuant to Section 1983
against the defendants in their official capacities, those claims are barred by the Eleventh
Amendment and are hereby dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b).
3. Defendant Miller
Construing plaintiff's allegations in the light most favorable to him as a pro se litigant,
plaintiff alleges that defendant Miller failed to correct wrongdoing after it was reported to him.
See generally Compl. Specifically, plaintiff alleges that defendant Miller was made aware that
plaintiff's request to receive the Cold Alternative Diet (which plaintiff claims satisfies the
tenets of plaintiff's religious beliefs) was denied and he was advised that the Cold Alternative
Diet was only available to inmates of the Jewish faith. Id. At this early stage of the
proceeding, and mindful of the Second Circuit's direction that a pro se plaintiff's pleadings
must be liberally construed, see e.g. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008), the Court finds that plaintiff's claims that defendant Miller violated his religious
rights under the First Amendment and RLUIPA,6 and denied him equal protection, survive

5

In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court established an exception to state
sovereign immunity in federal actions where an individual brings an action seeking injunctive relief against a
state official for an ongoing violation of law or the Constitution. Under the doctrine, a suit may proceed against a
state official in his or her official capacity, notwithstanding the Eleventh Amendment, when a plaintiff, "(a) alleges
an ongoing violation of federal law and (b) seeks relief properly characterized as prospective." See In re Deposit
Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotations and citations omitted); see also Santiago v. New York
State Dep't of Corr. Serv., 945 F.2d 25, 32 (2d Cir. 1991) (holding that such claims, however, cannot be brought
directly against the state, or a state agency, but only against state officials in their official capacities).
6
As noted above, plaintiff's claims for monetary damages under RLUIPA have been dismissed. See
Part II.D.1., supra.

9

sua sponte review and require a response. In so ruling, the Court expresses no opinion as to
whether these claims can withstand a properly filed dispositive motion.
4. Defendants Annucci and McCoy
Supervisory personnel may be considered "personally involved" only if they (1) directly
participated in the violation, (2) failed to remedy that violation after learning of it through a
report or appeal, (3) created, or allowed to continue, a policy or custom under which the
violation occurred, (4) had been grossly negligent in managing subordinates who caused the
violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on
information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873
(2d Cir. 1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).7
Defendants Annucci and McCoy, although included in the list of defendants, are not
mentioned anywhere in the body of the complaint. "Dismissal is appropriate where a
defendant is listed in the caption, but the body of the complaint fails to indicate what the
defendant did to the plaintiff." Cipriani v. Buffardi, No. 9:06-CV-889 (GTS/DRH), 2007 WL
607341, at *1 (N.D.N.Y. Feb. 20, 2007). See also Crown v. Wagenstein, No. 96 CIV. 3895,
1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden's name in
complaint insufficient to allege personal involvement); Taylor v. City of New York, 953 F.
Supp. 95, 99 (S.D.N.Y. 1997) (same). Indeed, it appears that plaintiff named Annucci and
McCoy as defendants merely because of the positions that they hold in DOCCS. If the
7

The Second Circuit has not yet addressed how the Supreme Court's decision in Iqbal affected the
standards in Colon for establishing supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 139
(2d Cir. 2013) (noting that Iqbal may have "heightened the requirements for showing a supervisor's personal
involvement with respect to certain constitutional violations" but not reaching the impact of Iqbal on Colon
because the complaint "did not adequately plead the Warden's personal involvement even under Colon"); see
also Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) (expressing "no view on the extent to which [Iqbal ]
may have heightened the requirements for showing a supervisor's personal involvement with respect to certain
constitutional violations[.]") (citing Grullon, 720 F.3d at 139).

10

defendant is a supervisory official, a mere "linkage" to the unlawful conduct through "the
prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to
show his or her personal involvement in that unlawful conduct. See Polk Cnty. v. Dodson,
454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21
F.3d at 501. In other words, supervisory officials may not be held liable merely because they
held a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, a
plaintiff must demonstrate "'a tangible connection between the acts of the defendant and the
injuries suffered.'" Austin, 2008 WL 857528, at *2 (quoting Bass, 790 F.2d at 263).
As a result, the Court finds that plaintiff has failed to state a claim against defendants
Annucci and McCoy upon which relief may be granted and thus all claims against them are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
E.

Motion for Preliminary Injunctive Relief

Turning to plaintiff's motion for a temporary restraining order and preliminary injunctive
relief, "[i]n general, district courts may grant a preliminary injunction where a plaintiff
demonstrates 'irreparable harm' and meets one of two related standards: 'either (a) a
likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of
its claims to make them fair ground for litigation, plus a balance of the hardships tipping
decidedly in favor of the moving party.'" Otoe-Missouria Tribe of Indians v. New York State
Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (quoting Lynch v. City of N.Y., 589
F.3d 94, 98 (2d Cir. 2009) (internal quotation marks omitted)). However, when the moving
party seeks a "mandatory injunction that alters the status quo by commanding a positive act,"
the burden is even higher. Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (citing
Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35
11

n.4 (2d Cir. 2010) (internal quotation marks omitted)). A mandatory preliminary injunction
"should issue only upon a clear showing that the moving party is entitled to the relief
requested, or where extreme or very serious damage will result from a denial of preliminary
relief." Cacchillo, 638 F.3d at 406 (citing Citigroup Global Mkts., 598 F.3d at 35 n.4) (internal
quotation marks omitted)); see also Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc.,
60 F.3d 27, 33-34 (2d Cir. 1995) (a plaintiff seeking a mandatory injunction must make a
"clear" or "substantial" showing of a likelihood of success on the merits of his claim). The
same standards used to review a request for a preliminary injunction govern consideration of
an application for a temporary restraining order. Local 1814, Int'l Longshoremen's Ass'n,
AFL-CIO v. New York Shipping Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992); Perri v.
Bloomberg, No. 06-CV-0403, 2008 WL 2944642, at * 2 (E.D.N.Y. Jul. 31, 2008). The district
court has wide discretion in determining whether to grant preliminary injunctive relief. Moore,
409 F.3d at 511.
Plaintiff requests a court order directing that he "receive the religious Cold Alternative
Diet." Dkt. No. 4 at 1. In support of his request, plaintiff alleges that the "religious Cold
Alternative Diet" is "suppose[d] to be given to inmates who meet the allege[d] criteria to be
afforded the meal. Plaintiff has explained his need for the meal through religious law of his
faith and how the Religious Alternative Meal is insufficient to satisfy Plaintiff's need through
religious law because the pots and pans used are also used to cook haram religiously
forbidden meats such as pork and other meats for the regular meal." Id. at 3.8 Plaintiff
claims that he is "given relig[i]ously forbidden food on a daily basis." Id. at 4.

8

Plaintiff also claims that the Religious Alternative Meal contains "sauces mix[ed] with soybean
barbeque, tomato ect." which causes plaintiff gastrointestinal distress. Id. Plaintiff has not raised this issue in his
complaint. See generally Compl.

12

Even if the Court were to assume that plaintiff has alleged that he may suffer
irreparable harm, plaintiff has failed to substantiate any allegations of irreparable harm with
evidence in admissible form or to demonstrate, with evidence, a likelihood of success on the
merits of his underlying claims, or sufficiently serious questions going to the merits and a
balance of hardships tipping decidedly in his favor. See Ivy Mar Co. v. C.R. Seasons Ltd.,
907 F. Supp. 547, 561 (E.D.N.Y. 1995) ("[B]are allegations, without more, are insufficient for
the issuance of a preliminary injunction."); Hancock v. Essential Res., Inc., 792 F. Supp. 924,
928 (S.D.N.Y.1992) ("Preliminary injunctive relief cannot rest on mere hypotheticals.").
Additionally, since defendant Miller has not yet answered, and, indeed, has not even been
served, the Court cannot ascertain plaintiff's likelihood of success, or whether he has
otherwise met the standard for issuance of preliminary injunctive relief.
For the foregoing reasons, plaintiff's motion for preliminary injunctive relief (Dkt. No. 4)
is denied.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's IFP Application (Dkt. No. 2) is GRANTED.9 The Clerk shall

provide the Superintendent of the facility that plaintiff has designated as his current location
with a copy of plaintiff's inmate authorization form (Dkt. No. 3) and notify that official that
plaintiff has filed this action and is required to pay to the Northern District of New York the
entire statutory filing fee of $350.00 pursuant to 28 U.S.C. § 1915; and it is further

9
Although his IFP Application has been granted, plaintiff will still be required to pay fees that he may
incur in this action, including copying and/or witness fees.

13

ORDERED that the Clerk provide a copy of plaintiff's inmate authorization form to the
Financial Deputy of the Clerk's Office; and it is further
ORDERED that (1) the claims for monetary damages pursuant to RLUIPA and (2) the
claims for monetary damages against the defendants in their official capacities under Section
1983 are DISMISSED with prejudice;10 and it is further
ORDERED that all claims against defendants Annucci and McCoy are DISMISSED
without prejudice in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)
for failure to state a claim upon which relief may be granted;11 and it is further
ORDERED that defendants Annucci and McCoy are DISMISSED without prejudice
as defendants; and it is further
ORDERED that the Clerk shall issue a summons and forward it, along with a copy of
the complaint, to the United States Marshal for service upon defendant Miller. 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 Decision and Order; and it is further
ORDERED that a response to the complaint be filed by the defendant Miller, or his
counsel, as provided for in the Federal Rules of Civil Procedure; and it is further

10

Generally, when a district court dismisses a pro se action sua sponte, the plaintiff will be allowed to
amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). However, an
opportunity to amend is not required where the defects in the plaintiff's claims are substantive rather than merely
formal, such that any amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also
Pucci v. Brown, 423 Fed. App'x 77, 78 (2d Cir. 2011). Amendment of these claims would be futile.
11

Should plaintiff seek to pursue any of the claims dismissed without prejudice, he must file an
amended complaint. Any amended complaint, which shall supersede and replace the original complaint in its
entirety, must allege claims of misconduct or wrongdoing against each named defendant which plaintiff has a
legal right to pursue, and over which this Court may properly exercise jurisdiction. Any amended complaint filed
by plaintiff must also comply with the pleading requirements of Rules 8 and 10 of the Federal Rules of Civil
Procedure.

14

ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 4) is
DENIED; and it is further
ORDERED that all pleadings, motions and other documents relating to this action be
filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Plaintiff must comply
with any requests by the Clerk's Office for any documents that are necessary to maintain this
action. All parties must comply with Local Rule 7.1 of the Northern District of New York in
filing motions. All motions will be decided on submitted papers without oral argument unless
otherwise ordered by the Court. Plaintiff is required to promptly notify the Clerk's Office and
all parties or their counsel of any change in his address; plaintiff's failure to do so may result
in the dismissal of this action; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated:

August 29, 2016
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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