Lopez v. D.O.C.S. et al
Filing
46
OPINION AND ORDER: Defendants' Motion to Dismiss is granted in part and denied in part. In particular, Defendants' Motion is granted as to the claims against Burguess, without prejudice to Plaintiff's re-filing another Action base d on the fact that she has now exhausted her administrative remedies as to these claims. With respect to the claims against Cipolini, Defendants' Motion is granted as to the First Amendment, RLUIPA, and Eighth Amendment claims and denied as to Plaintiff's Equal Protection claim. The Clerk of the Court is respectfully requested to terminate Defendants' Motion to Dismiss, (Dkt. No. 38), and Plaintiff's Motion for an Order of compensation, (Dkt. No. 32). Plaintiff may fil e a Second Amended Complaint within thirty days of this Opinion and Order. Moreover, in light of the fact that Plaintiff has failed to respond to Defendants' Motion to Dismiss and failed to appear at the last several conferences in this Acti on, Plaintiff is ordered to notify the Court of her intention to pursue this Action and/or re-institute another action against Burguess within 30 days or risk dismissal of her case for failure to prosecute. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/30/2015) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JASON LOPEZ,
Plaintiff,
No. 14-CV-2441 (KMK)
v.
OPINION AND ORDER
SERGEANT CIPOLINI and
CORRECTION OFFICER BURGUESS,
Defendants.
Appearances:
Jason Lopez
New York, NY
Pro Se Plaintiff
Maria Barous Hartofilis, Esq.
Assistant Attorney General of the State of New York
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Jason Lopez (“Plaintiff”) filed the instant Amended Complaint pursuant
to 42 U.S.C. § 1983 against Sergeant Cipolini (“Cipolini”) and Correction Officer Burguess
(“Burguess”) (collectively, “Defendants”). Plaintiff alleges that Cipolini violated Plaintiff’s Free
Exercise Clause rights under the First Amendment, the Religious Land and Institutionalized
Person Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and the Fourteenth Amendment Equal
Protection Clause when he prohibited Plaintiff from attending religious services on two different
occasions. (Am. Compl. ¶ II.D (Dkt. No. 33).) Plaintiff also alleges that Cipolini harassed
Plaintiff based on this conduct. (See Letter from Plaintiff to Court (Sept. 17, 2014) (“Pl.’s Sept.
17, 2014 Letter”), at unnumbered 2 (Dkt. No. 24).) Plaintiff alleges that Burguess violated her
Eighth Amendment rights by verbally harassing Plaintiff during recreation, (Am. Compl. ¶ II.D),
and, further, violated Title VII and the Equal Protection Clause when Burguess fired Plaintiff
from her work position in the prison, (Pl.’s Sept. 17 Letter, at unnumbered 2). Before the Court
is Defendants’ Motion to Dismiss the Complaint Pursuant to Federal Rule of Civil Procedure
12(b)(6). (See Mot. To Dismiss (“Mot.”) (Dkt. No. 38).)1 Defendants claim that Plaintiff’s
Action is barred for failure to exhaust available administrative remedies, pursuant to the Prison
Litigation Reform Act (“PLRA”), 42. U.S.C. § 1997e(a), and, alternatively, that Plaintiff’s
claims cannot survive on the merits. (Id.) For the following reasons, Defendants’ Motion is
granted in part and denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Amended Complaint, (Dkt. No. 33), and
papers submitted in response to Defendants’ request for a pre-motion conference, (Dkt. No. 22),
and are taken as true for the purpose of resolving the instant Motion. Plaintiff is a
male-to-female transgender individual,2 and was housed in Downstate Correctional Facility, an
1
Plaintiff also filed a Motion for an Order granting compensation for trauma and mental
anguish in the amount of one million dollars on November 17, 2014. (Dkt. No. 32.) Because
Plaintiff subsequently filed an Amended Complaint, (Dkt. No. 33), and no discovery in this
Action has occurred, this Motion is denied as untimely.
Neither Plaintiff’s Amended Complaint nor her opposition papers clearly state that
Plaintiff is a male-to-female transgender individual. There is, however, reference to Plaintiff’s
“sexuality” in her opposition papers, as well as a letter appended to her Amended Complaint
from the Prisoner Legal Services of New York that refers to Plaintiff as a transgender individual.
(Am. Compl. Ex. B.) Defendants do not contest that Plaintiff is a transgender individual and
indeed rely on this fact in moving to dismiss.
2
2
all-male prison, during the time of the alleged events.3 (Am. Compl. Ex. B (Dkt. No. 33).)
On February 9, 2014, at approximately 8:30 a.m., Cipolini “told [Plaintiff] in[] front of
the inmates going to religious services [that] [Plaintiff] could not attend because of [her] [h]air
and [her] sexuality.” (Pl.’s Sept. 17, 2014 Letter, at unnumbered 2; see also Am. Compl.
¶¶ II.C–D.) On February 16, 2014, at approximately the same time, “[w]hile going to Catholic
services[,] . . . Cipolini had [Plaintiff] escorted out of [the] services[,] stating [that she was] not
authorized to go to any relig[i]ous service.” (Am. Compl. ¶¶ II.C–D.) On March 28, 2014, at
approximately 1:30 p.m., Plaintiff “was setting up for gallery recreation” when Burguess “asked
[Plaintiff] to lock in because [Burguess] needed two men to work.” (Id.) Other inmates
witnessed the incident. (Id.) Burguess also “fired [Plaintiff] [from] [her] [two-and-a-half] month
position,” stating that Downstate Correctional Facility was a “[m]en’s facility.” (Pl.’s Sept. 17,
2014 Letter, at unnumbered 2.)4 As a result of Defendants’ conduct, Plaintiff suffered mental
anguish and went to see the mental health doctor at the prison. (Am. Compl. ¶ III.) Plaintiff is
asking for one million dollars to compensate her for her mental anguish and requests that the
Court acknowledge that Defendants discriminated against her and publicly humiliated her. (Id.)
With respect to Cipolini, Plaintiff “wrote to [her] lawyer and stated what had
happen[ed].” (Id. ¶ IV.E.1.) “[Plaintiff’s lawyer,] in t[u]rn[,] wrote to the [s]uperintendent[,] but
it did not help because [Plaintiff] was [] [f]urther harassed and [d]iscriminated [against] instead.”
3
Plaintiff left Downstate Correctional Facility on April 28, 2014, (Letter from Plaintiff to
Court (Oct. 6, 2014), at unnumbered 1 (Dkt. No. 26)), has since been released from prison, and
lives in New York City, (Pro Se Mem. re: Change of Address (Dkt. No. 30)).
Plaintiff later states that Burguess only “attempt[ed] to fire [her] from [her] porter
position.” (Letter from Plaintiff to Court (Oct. 29, 2014) (“Pl.’s Oct. 29, 2014 Letter”), at
unnumbered 1 (Dkt. No. 29).) For purpose of resolving the instant Motion, the Court will take as
true the allegation that Plaintiff was fired.
4
3
(Id. ¶ IV.F.2.) No grievance against Cipolini was filed. (Id.)5 With respect to Burguess,
Plaintiff filed a grievance about the incident on March 28, 2014, and after receiving an adverse
response, she appealed the decision on April 23, 2014. (Id. ¶¶ IV.E.1, IV.E.3; (Letter from
Plaintiff to Court (Oct. 29, 2014) (“Pl.’s Oct. 29, 2014 Letter”), at unnumbered 1 (Dkt. No. 29).)
Plaintiff pleads that she “appealed [her] appeal [but] did not get [an] answer[] [through] the
proper grievance prot[o]col[.] [The Central Office Review Committee (“CORC”)] had 45 days
to give [her] [a] decision [but] it took them 161 days to get [her] decision back.” (Id. ¶ IV.E.3.)
Plaintiff subsequently provided the Court with a copy of her adverse appeal decision from the
CORC, which indicates the “date filed” was April 14, 2014 and the CORC appeal was decided
on September 3, 2014. (Pl.’s Oct. 29, 2014 Letter, at unnumbered 2.)6
5
The Court notes that in the grievance appeal decision issued by the Central Office
Review Committee (“CORC”) to Plaintiff, sent to the Court by Plaintiff in her October 6, 2014
Letter, the report mentions two separate events, one involving a “CO B” on March 28, 2014 and
one involving a “Sgt. S” on April 7, 2014. (Pl.’s Oct. 6, 2014 Letter, at unnumbered 2.) This
document is consistent with the charge that Plaintiff alleges against Burguess. To the extent it
could be inferred that “Sgt. S” is “Sgt. Cipolini,” the Court notes that any suggestion that the
CORC considered a grievance against Cipolini is inconsistent with Plaintiff’s own assertion that
“[she] did not grieve” “the [first] two inc[i]dents,” on February 9, 2014 and February 16, 2014,
involving Cipolini. (Am. Compl. ¶ IV.F.2.) Moreover, the document notes that the incident
involving “Sgt. S” took place in April, rather than in February. As such, the Court cannot infer
from the CORC decision that a grievance against Cipolini was considered by, or submitted to,
the CORC because it is inconsistent with the allegations in the Amended Complaint. See
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. 2013)
(explaining that in deciding a motion to dismiss, a court may consider “materials outside the
complaint to the extent that they are consistent with the allegations in the complaint.” (internal
quotation marks omitted)).
There is no indication on the CORC decision if the “date filed” refers to the date the
original grievance was filed, or the date the appeal was filed. This difference is immaterial for
the purpose of resolving the instant Motion.
6
4
B. Procedural Background
Plaintiff filed the original Complaint on April 7, 2014 against Defendants Cipolini,
Burguess, and the New York State Department of Corrections and Community Supervision
(“DOCCS”). (Dkt. No. 2.) The Court granted Plaintiff’s request to proceed in forma pauperis on
May 14, 2014. (Dkt. No. 7.) The Court issued an Order dismissing Plaintiff’s claims against the
DOCCS on May 20, 2014. (Dkt. No. 9.) On June 11, 2014 the Court received a letter from
Plaintiff dated May 30, 2014 requesting $1.2 million in damages for the mental anguish that she
suffered when Defendants discriminated against and humiliated Plaintiff based on her
appearance and sexual orientation. (Dkt. No. 11.) The Court issued an Order on June 16, 2014
allowing Plaintiff more time to amend her Complaint, given the further information Plaintiff
submitted in her May 30, 2014 Letter. (Dkt. No. 16.) The Court did not receive an amended
complaint from Plaintiff pursuant to the June 16, 2014 Order. Defendants submitted a letter for a
pre-motion conference on September 12, 2014, indicating the grounds on which Defendants
would move to dismiss. (Dkt. No. 22.) Thereafter, Plaintiff submitted numerous papers in
response to Defendants’ September 12, 2014 Letter, including a letter explaining the steps that
Plaintiff took to grieve her claim against Burguess. (Dkt. Nos. 24–26, and 29.) On November
12, 2014, based on the information that Plaintiff submitted in her October 6, 2014 Letter and the
CORC’s decision appended thereto, the Court issued an Order directing Plaintiff to show cause
as to why her Complaint should not be dismissed for failure to exhaust the relevant
administrative remedies. (Dkt. No. 31.) In response, Plaintiff filed a Motion for Compensation,
(Dkt. No. 32), and an Amended Complaint on November 17, 2014, (Dkt. No. 33). Pursuant to a
Scheduling Order issued by the Court on December 17, 2014, (Dkt. No. 37), Defendants filed a
5
Motion to Dismiss and accompanying papers on January 30, 2015, (Dkt. Nos. 38–41). Plaintiff
did not submit papers in opposition to the Motion.7
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
[or her] entitle[ment] to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (second alteration in original) (internal quotation marks omitted). Instead, the
Court has emphasized that “[f]actual allegations must be enough to raise a right to relief above
the speculative level,” id., and that “once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in the complaint,” id. at 563. A
plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id.
at 570. But if a plaintiff has “not nudged [his or her] claims across the line from conceivable to
plausible, the[] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But 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.’” (alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))).
7
The Court also notes that a status conference for this case was scheduled on September
9, 2015. (See Dkt. No. 44.) Although the Calendar Notice was mailed to Plaintiff’s address, as
indicated on the docket, Plaintiff failed to appear. (See Docket Minute Entry Sept. 9, 2015.)
6
In considering Defendants’ Motion to Dismiss, the Court is required to consider as true
the factual allegations contained in the Amended Complaint. See Ruotolo v. City of New York,
514 F.3d 184, 188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a complaint
pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all
reasonable inferences in the plaintiff’s favor.” (italics and internal quotation marks omitted));
Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008) (same). Moreover, a pro se
litigant’s submissions “are held to less stringent standards than [those] drafted by lawyers.
Courts liberally construe pleadings and briefs submitted by pro se litigants, reading such
submissions to raise the strongest arguments they suggest.” Johnson v. Schriro, No.
12-CV-7239, 2013 WL 5718474, at *2 (S.D.N.Y. Oct. 15, 2013) (internal quotation marks and
citations omitted).
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal
quotation marks omitted). In deciding a motion to dismiss a pro se complaint, however, it is
appropriate to consider “materials outside the complaint to the extent that they are consistent
with the allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL
3972514, at *4 n.3 (S.D.N.Y. 2013) (internal quotation marks omitted), including, “documents
that a pro se litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL
5186839, at *4 n.6 (E.D.N.Y. 2010), “allegations contained in plaintiff’s memorandum of law, at
least where those allegations are consistent with the allegations in the complaints[,]” Donehue v.
U.S. Dep’t of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990), information provided in affidavits,
7
Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986) (considering a pro se plaintiff’s
submitted memorandums and affidavits), and statements by the plaintiff “submitted in response
to [a] defendant’s request for a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No.
11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013); see also Rodriguez v.
Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1 (S.D.N.Y. 2013) (“Although the Court is
typically confined to the allegations contained within the four corners of the complaint, when
analyzing the sufficiency of a pro se pleading, a court may consider factual allegations contained
in a pro se litigant’s opposition papers and other court filings.” (internal citations and quotation
marks omitted)). Finally, it is worth noting that the “failure to oppose [Defendants’] [M]otion
[T]o [D]ismiss does not, by itself, require the dismissal of [Plaintiff’s] claims.” Leach v. City of
New York, No. 12-CV-2141, 2013 WL 1683668, at *2 (S.D.N.Y. Apr. 17, 2013). Rather, even
though “a party is of course to be given a reasonable opportunity to respond to an opponent’s
motion, the sufficiency of a complaint is a matter of law that the court is capable of determining
based on its own reading of the pleading and knowledge of the law.” McCall v. Pataki, 232 F.3d
321, 322–23 (2d Cir. 2000).
B. Exhaustion
1. Applicable Law
The PLRA provides that “[n]o action shall be brought with respect to prison conditions
under [§] 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). The exhaustion requirement applies to all personal incidents while in prison,
Porter v. Nussle, 534 U.S. 516, 532 (2007) (holding exhaustion is required for “all inmate suits
about prison life, whether they involve general circumstances or particular episodes”); see also
8
Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (same), and includes actions for monetary
damages despite the fact that monetary damages are not available as an administrative remedy,
Booth v. Churner, 532 U.S. 731, 741 (2001) (holding exhaustion is required “regardless of the
relief offered through administrative procedures”). Moreover, the PLRA mandates “‘proper
exhaustion’—that is, ‘using all steps that the agency holds out, and doing so
properly,’ . . . [which] entails . . . ‘completing the administrative review process in accordance
with the applicable procedural rules.’” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011)
(quoting Woodford v. Ngo, 548 U.S. 81, 88, 90 (2006)).
The Second Circuit has made clear that “administrative exhaustion is not a jurisdictional
predicate,” but rather “failure to exhaust is an affirmative defense.” Giano v. Goord, 380 F.3d
670, 675 (2d Cir. 2004) (citation omitted). Accordingly, “defendants bear the burden of proof[,]
and prisoner plaintiffs need not plead exhaustion with particularity.” McCoy v. Goord, 255 F.
Supp. 2d 233, 248 (S.D.N.Y. 2003); see also Miller v. Bailey, No. 05-CV-5493, 2008 WL
1787692, at *3 (E.D.N.Y. Apr. 17, 2008) (explaining that the exhaustion requirement “must be
pleaded and proved by a defendant” (citing Jones v. Bock, 549 U.S. 199, 216 (2007))). Further,
“‘[a] court may not dismiss for failure to exhaust administrative remedies unless it determines
that such remedies are available.’” Rossi v. Fishcer, No. 13-CV-3167, 2015 WL 769551, at *4
(S.D.N.Y. Feb. 24, 2015) (quoting Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004)). The
Second Circuit has recently made clear that “[w]hether an administrative remedy was available
to a prisoner in a particular prison or prison system is ultimately a question of law,” and
“defendants bear the initial burden of establishing, by pointing to legally sufficient sources such
as statutes, regulations, or grievance procedures, that a grievance process exists and applies to
the underlying dispute.” Hubbs v. Suffolk Cty. Sherriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)
9
(citation, alteration, and internal quotation marks omitted); see also Perez v. City of New York,
No. 14-CV-7502, 2015 WL 3652511, at *2 (S.D.N.Y. June 11, 2015) (same).
Finally, the Second Circuit has recognized certain exceptions to the exhaustion
requirement that apply when “(1) administrative remedies are not available to the prisoner; (2)
defendants have either waived the defense . . . or acted in such a[] way as to estop them from
raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the
grievance procedures, justify the prisoner’s failure to comply with the exhaustion requirement.”
Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006). “[T]he resolution of the
exhaustion issue does not necessarily fit exactly into any of these three categories, and a
particular fact pattern may implicate one or a combination of these factors.” Pagan v. Brown,
No. 08-CV-724, 2009 WL 2581572, at *5 (N.D.N.Y. Aug. 19, 2009) (citing Giano, 380 F.3d at
677 n.6). Therefore, a motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should
be granted only if “nonexhaustion is clear from the face of the complaint, and none of the
exceptions outlined by the Second Circuit are germane.” Lovick v. Schriro, No. 12-CV-7419,
2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (alterations and internal quotation marks
omitted); see also Lee v. O’Harer, No. 13-CV-1022, 2014 WL 7343997, at *3 (N.D.N.Y. Dec.
23, 2014) (“Dismissal under Rule 12(b)(6) for failure to exhaust is appropriate if such failure is
evidenced on the face of the complaint and incorporated documents.”); Sloane v. Mazzuca, No.
04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006) (“[B]y characterizing
non-exhaustion as an affirmative defense, the Second Circuit suggests that the issue of
exhaustion is generally not amenable to resolution by way of a motion to dismiss.” (internal
quotation marks omitted)).
10
2. Application
Defendants move to dismiss the Amended Complaint on exhaustion grounds as to each
Defendant. Accordingly, the Court addresses whether it is clear from the face of the Amended
Complaint and the documents that Plaintiff submitted in connection with the instant Motion
whether the claims should be dismissed because of Plaintiff’s failure to exhaust.
a. Burguess
To begin, Defendants “point[] to legally sufficient sources . . . [to show] that a grievance
process exists and applies to the underlying dispute” involving Burguess. Hubbs, 788 F.3d at 59.
In particular, Defendants point out that prisoners in the DOCCS’s facilities, like Plaintiff, must
exhaust all three levels of the applicable grievance procedure, (Defs.’ Mem. of Law in Supp. of
Defs.’ Mot. To Dismiss the Am. Compl. (“Defs.’ Mem.”) 6 (Dkt. No. 39)), which requires that
“first, the prisoner files a grievance with the Inmate Grievance Resolution Committee (‘IGRC’).
Second, the prisoner may appeal an adverse IGRC decision to the facility superintendent, and
third, the prisoner may appeal an adverse decision by the superintendent to [the CORC],” Mateo
v. Corebine, No. 09-CV-4811, 2010 WL 3629515, at *3 (S.D.N.Y. 2010); accord 7 N.Y. Comp.
Codes R. & Regs. § 701.5(a)(2). It is clear from the face of the Amended Complaint and the
documents that Plaintiff submits in response to Defendants’ pre-motion letter that this grievance
procedure was available to Plaintiff concerning her claims against Burguess. Indeed, Plaintiff
filed a grievance regarding these claims, appealed it, and received a decision from the CORC.
(See generally Pl.’s Oct. 6, 2014 Letter.) See McCoy, 255 F. Supp. 2d at 254 (“[T]he inmate
grievance program was ‘available’ to [the plaintiff] . . . for he filed a number of grievances
concerning some of the misconduct he alleges.”); Banks v. Stewart, No. 08-CV-7452, 2010 WL
2697075, at *6 (S.D.N.Y. 2010) (holding that the plaintiff could not contest the “availability” of
11
administrative remedies where he did not claim he was unware of the grievance process, and he
had partially grieved the incident).
It is also clear from Plaintiff’s filings that Plaintiff failed to exhaust her administrative
remedies before filing suit in federal court. Specifically, Plaintiff’s claims against Burguess arise
from events that took place on March 28, 2014. (See Am. Compl. II.D.) That same day,
Plaintiff filed a grievance regarding Burguess’s conduct. (Am. Compl. ¶ IV.E.1; see also Pl.’s
Oct. 6, 2014 Letter, at unnumbered 1.) Plaintiff then filed this Action on April 7, 2014, 10 days
after the day that the alleged events occurred and she filed the relevant grievance. (See Compl.
(Dkt. No. 2).) The regulations applicable to the grievance procedure in New York facilities
provide that the first step of the grievance process should be completed within 16 calendar days
after receipt of the grievance. See N.Y. Comp. Codes R. & Regs § 701.5(b). If an inmate
appeals an adverse decision to the Superintendent, the Superintendent must generally decide the
issue within 20 calendar days from the time the appeal was received. Id. § 701.5(c). Finally, the
CORC must decide an appeal within 30 calendar days from the date that such an appeal is filed.
Id. § 701.5(d). In light of this procedure and based on the facts alleged in the Amended
Complaint, it is implausible that Plaintiff was able to exhaust her administrative remedies within
10 days. See Perez, 2015 WL 3652511, at *3 (noting that “[t]he timing of the
[c]omplaint . . . show[ed] that the grievance process could not have been completed when [the
plaintiff] commenced th[e] action”); Price v. City of New York, No. 11-CV-6170, 2012 WL
3798227, at *3 (S.D.N.Y. Aug. 30, 2012) (granting the defendant’s motion to dismiss on
exhaustion grounds where “given the timelines for the grievance procedure outlined in the
[applicable] regulations, it would have been impossible for [the plaintiff to have fully pursued his
grievance through all of the steps of the grievance procedure] in the 21 days between the alleged
12
incident and the filing of his initial complaint”). Indeed, in her October 6, 2014 Letter, Plaintiff
states that she appealed the grievance on April 23, 2014, which is after the date that she filed her
initial Complaint in this case. (Pl.’s Oct. 6, 2014 Letter, at unnumbered 1.) It is clear, therefore,
based on the materials Plaintiff submitted that, despite the fact that administrative remedies were
available to her concerning her claims against Burguess, she failed to exhaust her administrative
remedies before initiating this Action. See Harris, 2013 WL 3816590, at *7 (granting the
defendant’s motion to dismiss on exhaustion issues, in part, because the time limit for the
superintendent to render a decision had yet to lapse when the plaintiff filed his federal action,
and the plaintiff, therefore, could not “argue he was denied an opportunity to exhaust his
administrative remedies”).
A plaintiff must exhaust his administrative remedies before filing his initial complaint in
federal court. Indeed, “[w]hen a prisoner does not properly exhaust his [or her] administrative
remedies before filing suit, the action must be dismissed.” Mateo v. Alexander, No.
08-CV-8797, 2010 WL 431718, at *3 (S.D.N.Y. Feb. 9, 2010); see also Harris v. Gunsett, No.
12-CV-3578, 2013 WL 3816590, at *6 (S.D.N.Y. July 22, 2013) (same). “This is so even if the
claim has since been exhausted.” Mateo v. Ercole, No. 08-CV-10450, 2010 WL 3629520, at *3
(S.D.N.Y. Sept. 17, 2010) (collecting cases). In other words, “subsequent exhaustion after suit is
filed . . . is insufficient,” Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001), overruled on other
grounds by Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Harris, 2013 WL 3816590, at
*6 (same), even where, as here, “‘it might seem more efficient simply to proceed with the
lawsuit rather than dismiss it only to see it immediately re-filed,’” Harris, 2013 WL 381590, at
*6 (quoting Alexander, 2010 WL 431718, at *3) (brackets omitted).
13
On November 12, 2014, after the Court received Plaintiff’s October 6, 2014 Letter with
the attached grievance from the CORC, the Court issued an Order stating that “[i]n light of the
fact that CORC’s decision in this matter was not issued until September 3, 2014, and therefore
that Plaintiff did not exhaust [her] administrative remedies prior to filing the instant Complaint,
Plaintiff is ordered to show cause . . . as to why an exception to exhaustion should apply here, or
why [her] Complaint should not otherwise be dismissed without prejudice so that [s]he may
reinstitute [her] suit.” (Order 2 (Dkt. No. 31).) Plaintiff did not directly respond to the Order to
Show Cause, but rather filed the Amended Complaint in which she explained that she “appealed
[her] appeal [but] did not get [an] answer[] [through] the proper grievance prot[o]col[.] They
had 45 days to give [Plaintiff] a decision [but] it took them 161 days to get [her] decision back.”
(Am. Compl. ¶ IV.E.3.) The Court construes this statement as an allegation that an
administrative remedy was not available to Plaintiff because of the CORC’s delay.
The Court notes that “[a] number of federal circuit courts have held that a failure to
respond to a grievance within the time limit prescribed by the prison grievance process renders
an administrative remedy unavailable for the purposes of exhaustion[,]” Rossi, 2015 WL 769551,
at *4 (collecting cases), and that the Second Circuit has cited these decisions favorably, see
Hemphill v. New York, 380 F.3d 680, 686 n.6 (2d Cir. 2004) (explaining that if the plaintiff had
“wrote in a timely fashion to the Superintendent pursuant to a possibly valid interpretation of
DO[C]CS grievance procedures, there might be a question as to the availability of remedies,
since [the plaintiff] received no response to his letter, and there is no indication in the record that
his grievance was ever recorded, as required by DO[C]CS regulations” but “express[ing] no view
on whether [the plaintiff’s] allegations can support such a theory”). The Court also notes that
“[j]udges in [the Southern District of New York] . . . have also agreed with the proposition that
14
administrative remedies may be deemed unavailable when the prison fails to timely respond to a
grievance,” Rossi, 2015 WL 769551, at *5 (collecting cases). Accordingly, if this were a case
where Plaintiff filed the instant Action after the Superintendent or the CORC failed to render a
decision within the time frame mandated by the applicable regulations, it may be appropriate to
decide that administrative remedies were not available to Plaintiff, and therefore, to deny
Defendants’ Motion on exhaustion grounds as to the claims against Burguess.
Here, however, at the time that Plaintiff filed her initial complaint, administrative
remedies were available to her based on her pleadings and filings. As noted, Plaintiff filed her
initial complaint on April 7, 2014, (Dkt. No. 2), which was before she filed an appeal of her
grievance on April 23, 2014, as Plaintiff contends in her letter. (Pl.’s October 6, 2014 Letter, at
unnumbered 1). Accordingly, at the time that Plaintiff filed her Complaint, Plaintiff had yet to,
at the very least, complete the third step in exhausting her administrative remedies, namely
appealing the adverse grievance to the CORC. Furthermore, failing to file an appeal, even when
a plaintiff does not receive a response from the IGRP or the Superintendent, does not excuse
exhaustion. See Garvin v. Rivera, No. 13-CV-7054, 2015 WL 876464, at *4 (S.D.N.Y. Feb. 28,
2015) (“Courts in [the Second Circuit] have consistently held that the failure to take an available
administrative appeal, even when the initial grievance receives no response, constitutes a failure
to exhaust available administrative remedies.”)
In sum, while the Court heeds that nonexhaustion is an affirmative defense and, therefore,
that “the issue of exhaustion is generally not amenable to resolution by way of a motion to
dismiss,” Sloane, 2006 WL 3096031, at *4, here, dismissal based on exhaustion grounds is
appropriate. Nonexhaustion is clear from the face of the Amended Complaint and the documents
that Plaintiff has submitted. In an abundance of caution, the Court provided Plaintiff an
15
opportunity to explain why she should not re-file her claim based on the date of the grievance
she received from the CORC and submitted to the Court. In light of Plaintiff’s subsequent
explanation for her failure to exhaust, it is clear that “none of the exceptions outlined by the
Second Circuit [to excuse the failure to exhaust] are germane.” Lovick, 2014 WL 3778184, at *4
(alterations and internal quotation marks omitted). In particular, Plaintiff complains of the
CORC’s delay. Although delay may make administrative remedies unavailable, here, at the time
Plaintiff filed her Complaint—ten days after the alleged events occurred and she filed her
grievance—she had not yet filed an appeal to the CORC.8 Finally, the Court emphasizes that “a
prisoner’s failure to exhaust administrative remedies is merely a procedural flaw that can be
cured simply by exhausting those remedies and reinstituting suit.” Wagnoon v. Johnson, No.
02-CV-10282, 2004 WL 583764, at *3 (S.D.N.Y. 2004) (dismissing the plaintiff’s case without
prejudice so that he could reinstitute suit). Therefore, Plaintiff’s claims against Burguess are
dismissed, without prejudice, for failure to exhaust her administrative remedies so that she may
properly re-institute her suit. See Berry v. Kerik, 366 F.3d 85, 87 (2d. Cir. 2004) (holding that,
where a plaintiff has failed to exhaust administrative remedies, dismissal without prejudice is
proper because plaintiff can simply re-plead after exhaustion); McCoy, 255 F. Supp. at 252 (“A
dismissal for failure to exhaust is usually without prejudice . . . because failure to exhaust is
ordinarily a ‘temporary, curable, procedural flaw.’” (quoting Snider v. Melindez, 199 F.3d 108,
111 (2d Cir. 1999) (internal citations omitted))).
8
The Court notes it is also very unlikely, based on the time line described above, that
Plaintiff filed an appeal with the Superintendent and/or received a response before filing this
case.
16
b. Cipolini
In her Amended Complaint, Plaintiff alleges that she did not file a grievance against
Cipolini, but instead that she wrote to her lawyer, who in turn wrote to the Superintendent. (Am.
Compl. ¶ IV.F.2.) Plaintiff attaches two letters to her Amended Complaint. One letter, dated
March 11, 2014, is from Stephanie Kozic, a legal intern at the Legal Aid Society, to Plaintiff,
explaining, among other things, that she enclosed “a copy of the letter sent to the Superintendent
on [Plaintiff’s] behalf.” (Id. Ex. A.) The second letter, dated March 14, 2014, is from Mik
Kinkead, an attorney at the Prisoners’ Legal Services of New York, stating that “it is very
distressing that [Plaintiff is] being harassed and possibly even denied [her] religious rights
because of who [Plaintiff] is[,]” offering Plaintiff assistance, enclosing “several releases for
[Plaintiff] to fill out,” and providing various resources. (Id. Ex. B.)
The Court notes that in general “[m]erely [a]lert[ing] . . . prison officials as to the nature
of the wrong for which redress is sought does not constitute proper exhaustion.” Macias v. Zenk,
495 F.3d 37, 44 (2d Cir. 2007) (internal citations and quotation marks omitted); see also Perez,
2015 WL 3652511, at *4 (explaining that the “[p]laintiff’s allegation that he advised others of his
[or her] grievance does not excuse his failure to exhaust the administrative process specified in
the IGRP”). “Regardless of whether . . . informal complaints put the prison officials on notice of
his grievance ‘in a substantive sense,’ . . . to satisfy the PLRA, a prisoner must also procedurally
exhaust his [or her] available remedies.” Macias, 495 F.3d at 43 (quoting Johnson v. Testman,
380 F.3d 691, 697–98 (2d. Cir. 2004)). Substantive notice alone is insufficient because “[t]he
benefits of exhaustion can be realized only if the prison grievance system is given a fair
opportunity to consider the grievance,” and “[t]he prison grievance system will not have such an
opportunity unless the grievant complies with the system’s critical procedural rules.” Woodford,
17
548 U.S. at 95. Thus, for example, “[c]ourts have repeatedly held that complaint letters to
the . . . facility [s]uperintendent do not satisfy the PLRA’s exhaustion requirement.” Nelson v.
Rodas, No. 01-CV-7887, 2002 WL 31075804, at *3 (S.D.N.Y. Sept. 17, 2002) (collecting cases);
see also Muhammad v. Pico, No. 02-CV-1052, 2003 WL 21792158, at *8 (S.D.N.Y. Aug. 5,
2003) (same). Moreover, writing to the superintendent does not “preclude submission of a
formal grievance,” Amador, 655 F.3d at 97, nor does it preclude the requirement that an inmate
must go through the appeal process if the superintendent fails to act, McNair v. Sgt. Jones, No.
01-CV-3253, 2002 WL 31082948, at *8 (S.D.N.Y. Sept. 18, 2002) (noting that the failure to
follow the appeal process alone “means that [a plaintiff] has not exhausted his administrative
remedies”); accord 7 N.Y. Comp. Codes R. & Regs. §§ 701.5(a), 701.8(g). Even assuming,
then, that Plaintiff’s lawyer contacted the Superintendent regarding the claims Plaintiff alleges
here against Cipolini, this would not, without more, excuse exhaustion.
Furthermore, Plaintiff does not contend that Defendants’ actions or other special
circumstances prevented her from filing a grievance as to her claims against Cipolini. See Perez,
2015 WL 3652511, at *4 (explaining that the “[p]laintiff ha[d] not pleaded any additional facts
that would excuse his failure to exhaust administrative remedies”); cf. Macias, 495 F.3d at 44
(remanding the case after the plaintiff amended his complaint to allege that prison officials’
threats prevented him from filing a grievance); Gonzalez v. Officer in Charge of Barber Shop on
Duty on May 13, 1999, No. 99-CV-3455, 2000 WL 274184, at *3 (S.D.N.Y. Mar. 13, 2000)
(denying a motion to dismiss for failure to exhaust where the plaintiff alleged his efforts to file a
grievance were “frustrated” by prison officials). Nevertheless, it is not clear from the face of the
Amended Complaint and the materials that Plaintiff attaches that there are no legitimate reasons
to excuse exhaustion of Plaintiff’s claims against Cipolini. Rather, exceptions to the exhaustion
18
requirement, such as the possibility that Plaintiff reasonably misunderstood the grievance
procedure, see Ruggiero, 467 F.3d at 175, may be applicable here. As noted above, “a prisoner
plaintiff need not plead exhaustion with particularity.” McCoy, 255 F. Supp. 2d at 248.
Therefore, the fact that Plaintiff’s Amended Complaint admits that she did not file a grievance
against Cipolini does not, without more, warrant dismissing her claims against Cipolini at this
stage. The Court thus turns to the merits of Plaintiff’s claims against Cipolini.
C. Merits of Plaintiff’s Claims Against Cipolini
Plaintiff alleges that on February 9, 2014, Cipolini told her she “could not attend
Protestant services because of [her] hair” and “sexuality,” (Am. Compl. ¶ II.D; Pl.’s Sept. 17,
2014 Letter, at unnumbered 2), and “[w]hile going to Catholic services [on February 16,
2014,] . . . Cipolini had [Plaintiff] escorted out of services[,] stating [that she was] not authorized
to go to any religious service,” (Am. Compl. ¶ II.D). Plaintiff characterizes Cipolini’s behavior
as “harassment and discrimination.” (Pl.’s Sept. 17, 2014 Letter, at unnumbered 2.) The Court
construes these allegations as stating a violation of the Free Exercise Clause of the First
Amendment, a claim under RILUPA, a claim of harassment in violation of the Eighth
Amendment, and a claim of gender discrimination in violation of the Equal Protection Clause of
the Fourteenth Amendment.
1. Religious Liberty Claims
a. Applicable Law
“Prisoners have long been understood to retain some measure of the constitutional
protection afforded by the First Amendment’s Free Exercise Clause,” Ford v. McGinnis, 352
F.3d 582, 588 (2d Cir. 2003), which includes the right to participate in religious services, see
Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). A prisoner’s First Amendment rights,
19
however, are “[b]alanced against . . . the interests of prison officials charged with complex duties
arising from the administration of the penal system.” Ford, 352 F.3d at 588 (internal quotation
marks omitted); see also Weathers v. Rock, No. 12-CV-1301, 2014 WL 4810309, at *4
(N.D.N.Y. Sept. 23, 2014) (explaining that the right of inmates to freely exercise a chosen
religion “is not limitless, and may be subject to restrictions relating to legitimate penological
concerns”). Accordingly, a prisoner’s free exercise claims are “judged under a reasonableness
test less restrictive than ordinarily applied to alleged infringements of fundamental constitutional
rights.” Ford, 352 F.3d at 588 (internal quotation marks omitted).
“To be entitled to protection under the free exercise clause of the First Amendment, a
prisoner must make a threshold showing that the disputed conduct substantially burdened his [or
her] sincerely held religious beliefs.” Washington v. Chaboty, No. 09-CV-9199, 2015 WL
1439348, at *9 (S.D.N.Y. Mar. 30, 2015) (internal quotation marks omitted); see also
Salahuddin v. Goord, 467 F.3d 263, 274–45 (2d Cir. 2006) (“The prisoner must show at the
threshold that the disputed conduct substantially burdens his sincerely held religious beliefs.”);
Shapiro v. Cmty. First Servs., Inc., No. 11-CV-4061, 2014 WL 1276479, at *10 (E.D.N.Y. Mar.
27, 2014) (“At the motion to dismiss stage, a complaint must assert sufficient allegations
necessary to establish that plaintiff’s claim is based upon a sincerely held religious belief.”
(internal quotation marks omitted)).9 In determining whether a belief is “sincere” “an individual
The Second Circuit recently explained that “[i]t has not been decided in this Circuit
whether, to state a claim under the First Amendment’s Free Exercise Clause, a prisoner must
show at the threshold that the disputed conduct substantially burdens his [or her] sincerely held
religious beliefs.” Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014). The Second Circuit
chose not to confront this question—or rather, not to alter the previous assumption that the
substantial burden test is a threshold question. Id. at 220. Accordingly, this Court “will follow
the analysis in Holland and proceed to consider the First Amendment analysis, assuming that the
substantial burden test is still valid.” Weathers, 2014 WL 4810309, at *4; see also Williams v.
Fisher, No. 11-CV-379, 2015 WL 1137644, at *16 (N.D.N.Y. Mar. 11, 2015) (same).
9
20
. . . need only demonstrate that the beliefs professed are sincerely held and in the individual’s
own scheme of things, religious.” Ford, 352 F.3d at 588 (citations, alterations, and internal
quotation marks omitted). Moreover, “[a] substantial burden on religious exercise exists where
the state puts substantial pressure on an adherent to modify his behavior and to violate his
beliefs.” Rossi, 2015 WL 769551, at *7 (internal citations and quotation marks omitted). The
Second Circuit has further specified that “[t]he relevant question in determining whether [the
plaintiff’s] religious beliefs were substantially burdened is whether participation in the [religious
activity], in particular, is considered central or important to [the plaintiff’s religious]
practice . . .” Ford, 352 F. 3d at 593–94. “Once [a] plaintiff establishes this burden, ‘[t]he
defendants then bear the relatively limited burden of identifying the legitimate penological
interests that justify the impinging conduct.’” Smith v. Perlman, No. 11-CV-20, 2012 WL
929848, at *7 (N.D.N.Y. Mar. 19, 2012) (quoting Salahuddin, 467 F.3d at 308)). The burden
then shifts to the inmate “to show that these articulated concerns were irrational.” Salahuddin,
467 F.3d at 308.
RLUIPA, in turn, “protects institutionalized persons who are unable freely to attend to
their religious needs and are therefore dependent on the government’s permission and
accommodation for exercise of their religion,” Cutter v. Wilkinson, 544 U.S. 709, 723 (2005),
and “provides a more stringent standard than does the First Amendment, barring the government
from imposing a substantial burden on a prisoner’s free exercise unless the challenged conduct or
regulation furthers a compelling governmental interest and is the least restrictive means of
furthering that interest,” Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014) (alterations and
internal quotation marks omitted); see also Salahuddin, 467 F.3d at 273 (“RLUIPA protects
inmates by providing that a government shall not ‘impose a substantial burden’ on the ‘religious
21
exercise’ of inmates in certain institutions unless the government shows that the burden furthers
a compelling governmental interest by the least restrictive means.’” (quoting 42 U.S.C.
§ 2000cc-1(a)) (footnote omitted)). While “RLUIPA does not define ‘substantial
burden,’ . . . the Second Circuit has assumed that ‘[s]ince substantial burden is a term of art in
the Supreme Court’s free exercise jurisprudence we assume that Congress, by using it, planned
to incorporate the cluster of ideas associated with the Court’s use of it.’” Panayoty v. Annucci,
898 F. Supp. 2d 469, 481–82 (N.D.N.Y. 2012) (quoting Westchester Day Sch. v. Village. of
Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007)). “The Supreme Court has held that a substantial
burden is one that ‘put[s] substantial pressure on an adherent to modify his behavior and to
violate his [or her] beliefs.’” Id. at 482 (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707, 718 (1981)). Whether or not a prisoner sufficiently pleads a substantial burden on
a sincerely held religious belief under RLUIPA involves the same threshold analysis as under the
First Amendment. See Valdez v. City of New York, No. 11-CV-5194, 2013 WL 8642169, at *12
(S.D.N.Y. Sept. 3, 2013) (“To state a claim under both the Free Exercise Clause of the First
Amendment and RLUIPA, an inmate must first allege that the government imposed a
‘substantial burden’ on his religious exercise.” (citing Salahuddin, 467 F.3d at 274–75)), report
and recommendation adopted by 2014 WL 2767201 (S.D.N.Y. June 17, 2014); Ramsey v.
Goord, 661 F. Supp. 2d 370, 395 n.12 (W.D.N.Y. 2009) (explaining that “the threshold inquiry
of a religious freedom claim under both the First Amendment and the RLUIPA is the same”);
Pugh v. Goord, 571 F. Supp. 2d 477, 504 (S.D.N.Y. 2008) (engaging in the same analysis for
determining a plaintiff’s sincerely held beliefs under both the RLUIPA and the Free Exercise
Clause). “Where a plaintiff adduces evidence sufficient to show that the government practice
substantially burdens [his or] her religious exercise, the onus shifts to the government to
22
demonstrate that the practice furthers a compelling governmental interest, and that the burden
imposed on religion is the least restrictive means of achieving that interest.” Jova v. Smith, 582
F.3d 410, 415 (2d Cir. 2009) (citing 42 U.S.C. § 2000cc-2(b)).
b. Application
Although Plaintiff does not plead that she practices any specific religion, Defendants do
not contest the sincerity of Plaintiff’s religious beliefs. The Court, therefore, will assume for the
purpose of resolving the instant Motion that Plaintiff’s religious beliefs are sincerely held.
The Court turns, then, to whether Plaintiff has adequately alleged that her ability to
exercise her religious beliefs was substantially burdened. In the Second Circuit, courts have held
that preclusion from attending two religious services is not, without more, a “substantial burden”
on a plaintiff’s free exercise of religion. See Jean-Laurent v. Los, No. 12-CV-132, 2015 WL
1015383, at *6 (W.D.N.Y. Mar. 8, 2015) (explaining that “[c]ourts within the Second Circuit
have consistently held that missing two religious services does not pose a substantial burden on
an inmate’s religion” and collecting cases); Blalock v. Jacobsen, No. 13-CV-8332, 2014 WL
5324326, at *7 (S.D.N.Y. Oct. 2, 2014) (same); Shapiro, 2014 WL 1276479, at *11 (“[N]ot
permitting a prisoner to attend two religious services ‘is a de minimis, or insubstantial, burden on
an inmate’s ability to freely exercise his religion.’” (quoting Smith v. Graziano, No. 08-CV-469,
2010 WL 1330019, at *9 (N.D.N.Y. Mar. 2010), report and recommendation adopted by 2010
WL 1332503 (N.D.N.Y. Apr. 6, 2010)). Here, Plaintiff only claims that she missed two religious
services on February 9, 2014 and February 16, 2014, (see Am. Compl. ¶ II.D), and Plaintiff does
not allege that the specific services were “‘central or important’ to [her] faith,” Rossi, 2015 WL
769551, at *8 (quoting Ford, 352 F.3d at 593–94) cf. Harnett v. Barr, 538 F. Supp. 2d 511, 521
(N.D.N.Y. 2008) (denying the defendant’s motion to dismiss where the plaintiff alleged that he
23
was denied, among other things, one Ramadan meal).10 Accordingly, the Court grants
Defendants’ Motion to Dismiss Plaintiff’s First Amendment claim on the grounds that Plaintiff
has failed to “make a threshold showing that the disputed conduct substantially burdened [her]
sincerely held religious beliefs.” Washington, 2015 WL 1439348, at *9 (internal quotation
marks omitted). See Blalock, 2014 WL 5324326, at *7 (granting the defendant’s motion to
dismiss because prohibition from attending two religious services is not a substantial burden on
the plaintiff’s free exercise rights); Shapiro, 2014 WL 1276479, at *11 (granting the defendant’s
motion to dismiss where the plaintiff only alleged the denial of two religious services); cf. JCG v.
Ercole, No. 11-CV-6844, 2014 WL 1630815, at *23 (S.D.N.Y. Apr. 24, 2014) (denying the
defendant’s motion to dismiss when the plaintiff claimed that the defendant denied him the right
to attend religious services and celebrate religious holidays for his entire stay noting that “this is
sufficient, albeit barely, at the pleading stage to allege a substantial burden on [the plaintiff’s]
beliefs in that he was completely denied any occasion to worship or practice his religion,
particularly given that [the] [d]efendants offer no legitimate penological objective that might
justify such a denial” (emphasis added)), report and recommendation adopted by 2014 WL
2769120 (S.D.N.Y. June 18, 2014); Smith, 2012 WL 929848, at *7 (denying the defendants’
motion to dismiss because “[a]t [the motion to dismiss] stage, the [c]ourt [found] that [the]
plaintiff ha[d] alleged sufficient facts to establish that missing three consecutive Jum’ah services
while housed in keeplock substantially burden[ed] his religion”). This claim is dismissed
without prejudice so that Plaintiff may have an opportunity to allege additional facts or otherwise
explain why missing the two services placed a substantial burden on her religious beliefs.
10
Indeed, it is worth noting that Plaintiff alleges she was denied the opportunity to attend
services for two different religious denominations.
24
To the extent that Plaintiff raises a RLIUPA claim, this claim also fails. “RLUIPA does
not offer monetary damages against state officers in either their official or individual capacities.”
Holland, 758 F.3d at 224 (citing Washington v. Gonyea, 731 F.3d 143, 145–46 (2d Cir. 2013)
(per curiam)); see also Keitt v. Hawk, No. 13-CV-850, 2015 WL 1246058, at *11 (N.D.N.Y. Jan.
8, 2015) (same). Instead, a plaintiff may only seek injunctive relief. Holland, 758 F.3d at 224;
see also Fortress Bible Church v. Feiner, 734 F. Supp. 2d 409, 520 (S.D.N.Y. 2010) (“It is
readily apparent that injunctive relief constitutes appropriate relief under RLUIPA.” (internal
citations and quotation marks omitted)). Here, Plaintiff requests one million dollars in monetary
damages, (Am. Compl. ¶ V.), which is an unavailable remedy against a state actor in his official
or individual capacity under RLUIPA. See Holland, 758 F.3d at 224. Further, because Plaintiff
is no longer incarcerated, to the extent Plaintiff requests any injunctive relief, this request is
moot. See Pugh, 571 F. Supp. 2d at 498–490 (explaining that “[w]here a prisoner has been
released from prison, his [or her] claims for injunctive relief based on the conditions of his [or
her] incarceration must be dismissed as moot,” citing cases, and dismissing a former inmate’s
RLUIPA claims as moot); see also Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983)
(“The hallmark of a moot case or controversy is that the relief sought can no longer be given or
is no longer needed.”); Casey v. Pallito, No. 12-CV-284, 2013 WL 6673623, at *19 (D. Vt. Dec.
18, 2013) (“[Plaintiff’s] claim for [monetary] damages is not cognizable under RLUIPA, and his
claim for injunctive relief is rendered moot by his transfer away from the facility where the
events giving rise to his claim took place”), report and recommendation adopted in relevant part
by 2013 WL 682800 (D. Vt. Feb. 25, 2013). Defendants’ Motion, therefore, is granted as to
Plaintiff’s claims under the First Amendment and RLUIPA.
25
2. Harassment
a. Applicable Law
“It is well established in the Second Circuit that verbal harassment of inmates by prison
officials, unaccompanied by any injury—no matter how inappropriate, unprofessional, or
reprehensible it might seem—does not rise to the level of a violation of the Eighth Amendment.”
Cusamano v. Sobek, 604 F. Supp. 2d 416, 459 (N.D.N.Y. 2009); see also Little v. Municipal
Corp., 51 F. Supp.3d 473, 500 (S.D.N.Y. 2014) (“‘[V]erbal harassment or profanity alone,
unaccompanied by any injury, no matter how inappropriate, unprofessional, or reprehensible it
might seem, does not constitute the violation of any federally protected right and therefore is not
actionable under 42 U.S.C. § 1983.’” (quoting Hare v. Hayden, No. 09-CV-3135, 2011 WL
1453789, at *7 (S.D.N.Y. Apr. 14, 2011)) (alteration and internal quotation marks omitted)). In
other words, “allegations of verbal harassment or threats are generally an insufficient basis for an
inmate’s § 1983 claim.” Rosales v. Kikendall, 677 F. Supp. 2d 643, 648 (W.D.N.Y. 2010)
(citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)). In general, the alleged injury
must be physical in nature, although, “under certain circumstances, a prison official’s infliction
of psychological pain on an inmate may constitute an Eighth Amendment violation . . . [if] the
psychological pain [is] (1) intentionally inflicted and (2) more than de minimis in nature.”
Cusamano, 604 F. Supp. 2d at 490–91.
b. Application
Plaintiff alleges that Cipolini’s conduct constituted harassment. (Pl.’s Sept. 17, 2014
Letter, at unnumbered 2.) Plaintiff does not claim that Cipolini caused her any physical injury.
Although Plaintiff states that Defendants “publicly humiliated [her]” and “caused [her] mental
anguish,” (Pl.’s Am. Compl. ¶ V), Plaintiff has not sufficiently alleged that her humiliation or
26
mental anguish rose to the level of psychological pain that was more than de minimis in nature.
See Cusamano, 604 F. Supp. 2d at 491. To begin, it is far from clear that Cipolini’s statements
regarding Plaintiff’s hair and sexuality could be construed as verbal harassment. See Jordan v.
Fischer, 773 F. Supp. 2d 255, 276 n.25 (N.D.N.Y. 2011) (noting that although the plaintiff
claimed that an officer used “sexual slurs” about the plaintiff, the court did not find that “such
comments, while they may have been inappropriate, would even come close to ‘verbal
harassment’”). Indeed, Defendants move to dismiss any claim of verbal harassment as to
Burguess, not as to Cipolini. (See Defs.’ Mem. 10–11.) In an abundance of caution, however,
the Court will construe Plaintiff’s allegations against Cipolini as alleging a claim for verbal
harassment as well. In any event, while any verbal harassment based on an individual’s
sexuality or gender is unacceptable, Plaintiff’s allegations as to Cipolini, without more, do not
rise to the level of a constitutional violation under the Eighth Amendment. See Vega v. Artus,
610 F. Supp. 2d 185, 209 (N.D.N.Y. 2009) (dismissing the plaintiff’s claim based on the
allegations that the defendants “made harassing comments against him because they believed
that he was [a] homosexual” because “allegations of verbal harassment are insufficient to support
a constitutional violation”); cf. Abney v. Jopp, 655 F. Supp. 2d 231, 234 (W.D.N.Y. 2009)
(explaining that the plaintiff’s allegations that the defendant officer called the plaintiff a “‘pussy’
and accused him of being afraid of ‘little women’” did not give rise to a constitutional claim).
Any claim under the Eighth Amendment, therefore, fails and is accordingly dismissed.
3. Equal Protection Claim
a. Applicable Law
“The Equal Protection Clause of the Fourteenth Amendment requires that all persons
similarly situated be treated in the same manner.” Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir.
27
1996) (internal citations and quotation marks omitted). In other words, “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 bad faith intent to injure a person.” Bizzaro v. Miranda, 394 F.3d 82, 86 (2d
Cir. 2005) (internal quotation marks omitted); see also Bailey v. Town of Evans, 443 F. Supp. 2d
427, 430 (W.D.N.Y. 2006) (same). To state a violation of the Equal Protection Clause, a
plaintiff must allege “that he [or she] was treated differently than others similarly situated as a
result of intentional or purposeful discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 (2d
Cir. 2005); see also Barrow v. Buren, No. 12-CV-1268, 2015 WL 417084, at *22 (N.D.N.Y. Jan.
30, 2015) (same); Nash v. McGinnis, 585 F. Supp. 2d 455, 462 (W.D.N.Y. 2008) (“In order to
plead a facially valid equal protection claim . . . [a] plaintiff must allege: (1) that he [or she] has
been treated differently from similarly-situated inmates, and (2) that the discrimination is based
upon a constitutionally impermissible basis, such as race.”).11
In the prison context, the Second Circuit has also held that in addition to alleging that
he or she was treated differently than others similarly situated as a result of discrimination, a
prisoner must also allege that the “disparity in treatment cannot survive the appropriate level of
scrutiny which, in the prison setting, means that he [or she] must demonstrate that his [or her]
treatment was not ‘reasonably related to any legitimate penological interests.’” Phillips, 408
F.3d at 129 (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)); see also Pugh, 571 F. Supp. 2d
at 502 (explaining that “even if [a] plaintiff can demonstrate that two groups are similarly
situated, disparate treatment may still be warranted if the government can demonstrate that the
distinctions are ‘reasonably related to legitimate penological interests’” (quoting Benjamin v.
Coughlin, 905 F.2d 571, 575 (2d Cir. 1990)); Vega v. Lantz, No. 04-CV-1215, 2009 WL
3157586, at *8 (D. Conn. Sept. 25, 2009) (same). Nevertheless, some classifications in the
prison setting “raise special fears that they are motivated by an invidious purpose,” and,
therefore, at the very least “[t]he right not to be discriminated against based on one’s race is not
susceptible to the [requirement that a prisoner must demonstrate that his or her treatment was not
reasonably related to any legitimate penological interest].” Johnson v. California, 543 U.S. 499,
505 (2005); see also Barnes v. Ross, 926 F. Supp. 2d 499, 506 (S.D.N.Y. 2013) (same); cf. Wolff
v. McDonnell, 418 U.S. 539, 556 (1974) (“Prisoners are protected under the Equal Protection
11
28
b. Application
Plaintiff sufficiently alleges a claim of discrimination in violation of the Equal Protection
Clause of the Fourteenth Amendment. Plaintiff claims that Cipolini prevented her from
attending the two religious services “because of [her] hair” and because of “her sexuality.” (Am.
Compl. ¶ II.D; Pl.’s Sept. 17, 2014 Letter, at unnumbered 2.) The Court concludes that Plaintiff
has sufficiently alleged that she was treated differently than others similarly situated. Plaintiff
claims that the incident on February 9, 2014 occurred “in[]front of the inmates going to religious
services,” (Pl.’s Sept. 17, 2014 Letter, at unnumbered 2), and, therefore, the Court reasonably
infers that these inmates attended services on this day, whereas Plaintiff did not. Although
Plaintiff’s Amended Complaint lacks any other allegations that the prisoners who attended
religious services were similarly situated to Plaintiff, the Amended Complaint as a whole
suggests that while Plaintiff was prevented from attending religious service because of her hair
and sexuality, the other prisoners in the male facility were not. As such, Plaintiff sufficiently
pleads that she was treated differently to others similarly situated. See Richard v. Fischer, 38 F.
Supp.3d 340, 355 (W.D.N.Y. 2014) (finding that the plaintiff’s “allegation that he was
discriminated against because of his race and religion, coupled with the allegation that others
were not subject to the discriminatory employment policy, carrie[d] with it the presumption that
similarly-situated inmates were not mixed-race Muslims”); cf. Vaher v. Town of Orangetown,
Clause of the Fourteenth Amendment from invidious discrimination based on race.”). Because
there is no obvious legitimate penological interest for Plaintiff’s exclusion from religious
services based on her hair and sexuality from the face of the Amended Complaint, the Court
need not decide at this stage whether any classifications based on Plaintiff’s identity as a
transgender individual or on Plaintiff’s gender or sexual orientation “raise special fears that they
are motivated by an invidious purpose,” such that “[t]he right not to be discriminated against
based on [these factors] is not susceptible to the [requirement that a prisoner must demonstrate
that his or her treatment was not reasonably related to any legitimate penological interest].”
Johnson, 543 U.S. at 510.
29
916 F. Supp. 2d 404, 434 (S.D.N.Y. 2013) (dismissing the plaintiff’s Equal Protection claim
where the amended complaint was “completely devoid of any reference to ‘similarly situated’ or
‘substantially similar’ individuals”).
Second, Plaintiff sufficiently pleads that Cipolini intentionally discriminated against her.
At the motion to dismiss stage, viewing the evidence in the light most favorable to Plaintiff,
Plaintiff satisfies this requirement by stating that she was prohibited from attending religious
services “because of [her] hair and [her] sexuality.” (Pl.’s Sept. 17, 2014 Letter, at unnumbered
2 (emphasis added); see also Am. Compl. ¶ II.D.) Assuming, as the Court must at this stage, that
Cipolini prohibited Plaintiff, but not others, from attending services because of Plaintiff’s
sexuality, these facts sufficiently state a plausible claim to relief, especially in light of the fact
that the Court is unable to conceive of any legitimate penological interest that would be served
by denying Plaintiff the right to attend religious services based on her hair and/or sexuality. See
Rosado v. Herard, No. 12-CV-8943, 2014 WL 1303513, at *8 (S.D.N.Y. Mar. 25, 2014)
(explaining that because there was “no obvious or administrative reason” for excluding “Spanish
speaking inmates” from attending group sessions “discriminatory intent—at least at the pleading
stage—can be inferred”); Phillips, 408 F.3d at 130 (holding that plaintiff’s allegations of racial
discrimination sufficed to state an Equal Protection violation where the Court could not “imagine
a legitimate penological reason for the conduct alleged”); Bussey v. Phillips, 419 F. Supp. 2d
569, 584 (S.D.N.Y. 2006) (finding that where the plaintiff alleged he was subject to different
punishment for the same act as white inmates, plaintiff sufficiently plead discriminatory intent to
survive summary judgment); cf. Benjamin v. Coughlin, 905 F.2d 571, 579 (2d Cir. 1990)
(holding that “the unlimited right granted to Jewish and Muslim inmates, as opposed to
Rastafarian prisoners, to wear religious headgear [does not] establish[] an equal protection
30
violation” because of the differences in the security concerns that the type of headgear pose);
Kole v. Lappin, 551 F. Supp. 2d 149, 156 (D. Conn. 2008) (finding that because “the government
offered two penological interests” supporting why certain holiday food was offered for some
religious holidays but not all, the plaintiff’s Equal Protection claim failed). Accordingly, Plaintiff
has adequately alleged an Equal Protection claim, and Defendants’ Motion to Dismiss this claim
as to Cipolini is denied.
III. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is granted in part and denied in
part. In particular, Defendants’ Motion is granted as to the claims against Burguess, without
prejudice to Plaintiff’s re-filing another Action based on the fact that she has now exhausted her
administrative remedies as to these claims. With respect to the claims against Cipolini,
Defendants’ Motion is granted as to the First Amendment, RLUIPA, and Eighth Amendment
claims and denied as to Plaintiff’s Equal Protection claim. The Clerk of the Court is respectfully
requested to terminate Defendants’ Motion to Dismiss, (Dkt. No. 38), and Plaintiff’s Motion for
an Order of compensation, (Dkt. No. 32). Plaintiff may file a Second Amended Complaint
within thirty days of this Opinion and Order. Moreover, in light of the fact that Plaintiff has
failed to respond to Defendants’ Motion to Dismiss and failed to appear at the last several
conferences in this Action, Plaintiff is ordered to notify the Court of her intention to pursue this
31
Action and/or re-institute another action against Burguess within 30 days or risk dismissal of her
case for failure to prosecute.
SO ORDERED.
Dated:
September~, 2015
White Plains, New York
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?