Rush et al v. New York State Department of Correction and Community Supervision et al

Filing 74

OPINION AND ORDER re: 62 MOTION to Dismiss the First Amended Complaint. filed by K. Crowley, Noelle Cheeseboro, Michael Capra, Jeff McKoy, L. Malin, Cheryl Morris, Anthony Annucci. The motion to dismiss is GRANTED as to plaintif f's first, second, and fifth claims, as well as to his monetary claims under RLUIPA. The motion to dismiss is DENIED in all other respects. By separate order, the Court will schedule an initial conference. The Clerk is instructed to terminate t he motion (Doc. #62), and terminate defendants Capra, Crowley, Cheeseboro, Mu'min, and Tracz. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962). SO ORDERED., (K. Crowley (Superintendent at Orleans Correctional Facility), Imam Hasan A. Mu'min (at the Sing Sing Correctio nal Facility), T. Tracz (Deputy Superintendent of Programs at Orleans Correctional Facility), Michael Capra (Superintendent at Sing Sing Correctional Facility) and Noelle Cheeseboro (Assistance Deputy Superintendent of Programs at Sing Sing Correctional Facility) terminated.) (Signed by Judge Vincent L. Briccetti on 6/29/17) Copies Mailed By Chambers. (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BASHEEN RUSH,
:
Plaintiff,
:
v.
:
:
DR. L. MALIN, ANTHONY ANNUCCI,
:
CHERYL MORRIS, NOELLE
:
CHEESEBORO, MICHAEL CAPRA, JEFF
:
MCKOY, T. TRACZ, K. CROWLEY,
:
HERNANDEZ, IMAM HASAN A. MU’MIN,
:
Defendants.
:
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OPINION AND ORDER
15 CV 3103 (VB)

Briccetti, J.:
Plaintiff Basheen Rush, a former inmate at Sing Sing Correctional Facility (“Sing Sing”),
currently housed at Orleans Correctional Facility (“Orleans”), who identifies as an adherent of
the Shi’a branch of Islam, brings this action pro se and in forma pauperis under the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, and 42 U.S.C. §
1983, alleging violations of his First Amendment right to free exercise of his religion and his
Fourteenth Amendment right to equal protection.
Defendants have moved to dismiss under Rule 12(b)(6). (Doc. #62). For the following
reasons, the motion is GRANTED IN PART and DENIED IN PART.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
BACKGROUND
In deciding the pending motion, the Court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences in plaintiff’s favor. 1

1

These alleged facts are taken from the amended complaint and plaintiff’s opposition to
the motion to dismiss, and from the documents attached to both.
1

Plaintiff has asserted five fully-exhausted claims arising from incidents that occurred at
Sing Sing and Orleans. 2 (See Am. Compl. Exs. 31-35).
First, plaintiff claims he was prevented from participating in a Shi’a Eid ul-Fitr prayer
service on July 28, 2014, because an event package was submitted too late for Sing Sing to
accommodate the request. According to plaintiff, he submitted the request five days before the
event; the relevant rules require that such requests be submitted forty-five days before an event.
Because it was late, the request was denied.
Second, plaintiff claims an event package for observance of the Six Days of Shawwal
Fast at Sing Sing was originally approved to take place between August 3 and August 8, 2014,
but that it was subsequently rescheduled for between August 1 and August 6, 2014. The new
dates caused a conflict, however, because a Family Day Event for Eid ul-Fitr was scheduled for
August 2. The Family Day Event involved the provision of food and drinks to Muslim inmates
and their guests. As a result, plaintiff could not both fast for Shawwal and partake in the food
and drinks at the Family Day Event.
Third, plaintiff claims in August 2014, after twenty-seven months of separate Shi’a
Jumu’ah Friday Prayer services at Sing Sing, separate Shi’a services were suspended until
October 2014, when they were reinstated.
Fourth, plaintiff claims that on October 12, 2014, he was made to miss the observance of
the last two days of Ashura at Sing Sing because no separate Shi’a service was permitted.
Fifth, plaintiff claims defendants at Orleans have denied his right to weekly classes, a
separate inmate account to collect funds for Shi’a “books and other study items,” (Am. Compl.

2

Plaintiff was transferred from Sing Sing to Orleans in January 2015.
2

Exs. 34 at 3), and denied Shi’a inmates “the ability as a whole to receive donations or raise
funds” (referred to elsewhere as a “fundraiser”). (Id. Ex. 35 at 2).
Plaintiff brings these causes of action against ten defendants: (i) Anthony Annucci,
Commissioner of the New York State Department of Corrections and Community Supervision
(“DOCCS”); (ii) Jeff McKoy, DOCCS Deputy Commissioner for Program Services; (iii) Cheryl
Morris, Director of DOCCS Ministerial, Family and Volunteer Services (“MFVS”);
(iv) Fernandez (incorrectly sued as Hernandez), Assistant Director of MFVS; (v) Michael Capra,
Superintendent of Sing Sing; (vi) Leslie Malin, Deputy Superintendent of Programs at Sing Sing;
(vii) Noelle Cheeseboro, Assistant Deputy Superintendent of Programs at Sing Sing; (viii) Imam
Hasan A. Mu’min, Sing Sing Coordinating Chaplain; (ix) K. Crowley, Superintendent of
Orleans; and (x) T. Tracz, Deputy Superintendent of Programs at Orleans.
DISCUSSION
I.

Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court evaluates the sufficiency

of the complaint under the “two-pronged approach” announced by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,” are not
entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss.
Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are
well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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564 (2007). A claim is facially plausible “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. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.
Because plaintiff is proceeding pro se, the Court must construe his submissions liberally
and interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks
omitted). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010) (internal quotation marks omitted). Nor may the Court “invent factual
allegations [plaintiff] has not pled.” Id.
II.

Free Exercise Claims
“Inmates clearly retain protections afforded by the First Amendment, including its

directive that no law shall prohibit the free exercise of religion.” 3 O’Lone v. Estate of Shabazz,
482 U.S. 342, 348 (1987) (internal citation omitted). To state a free exercise claim, plaintiff
“must show at the threshold that the disputed conduct substantially burdens his sincerely held
religious beliefs.” Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006). 4
3

The First Amendment’s free exercise guarantee applies to state actors through the
Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
4

In determining whether a plaintiff has made this threshold showing, the Court may not
“question the centrality of particular beliefs or practices to a faith, or the validity of particular
litigants’ interpretations of those creeds.” Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003)
(internal quotation marks omitted). The Court’s “scrutiny extends only to whether a claimant
sincerely holds a particular belief and whether the belief is religious in nature.” Id. at 590
(internal quotation marks omitted); accord Jackson v. Mann, 196 F.3d 316, 321 (2d Cir. 1996)
(“Free Exercise protection turns on whether [beliefs] are ‘sincerely held,’ not on . . .
4

An inmate’s “right to practice his religion is, however, not absolute.” Salahuddin
v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). Corrections facilities may restrict religious
exercise so long as such restrictions are “reasonably related to legitimate penological interests.”
O’Lone v. Estate of Shabazz, 482 U.S. at 349. Thus, even if plaintiff can establish defendants
substantially burdened his right to religious exercise, he cannot state a free exercise claim if
defendants can show “the disputed official conduct was motivated by a legitimate penological
interest.” Salahuddin v. Goord, 467 F.3d at 276; see also Young v. Coughlin, 866 F.2d 567, 570
(2d Cir. 1989); accord Harris v. Lord, 957 F. Supp. 471, 475 (S.D.N.Y. 1997) (denying motion to
dismiss because “[d]efendants assert no reason, compelling or otherwise, as to why plaintiff was
denied access to attend her religious services”).
A.

First Claim

Plaintiff has not stated a free exercise claim based on the fact that he was unable to
participate in a Shi’a Eid ul-Fitr prayer service on July 28, 2014. As a matter of law, the
requirement that an event package be submitted well in advance of the event is “reasonably
related to legitimate penological interests.” O’Lone v. Estate of Shabazz, 482 U.S. at 349. Here,
the event package was submitted at most five days before the event. Under these circumstances,
defendants at Sing Sing reasonably denied the package on the grounds that it was untimely.
B.

Second Claim

As to plaintiff’s second claim—that defendants at Sing Sing created a conflict making it
impossible for plaintiff to participate in the Six Days of Shawwal Fast and also attend the Eid ulFitr Family Day Event on August 2, 2014—plaintiff has again failed plausibly to allege a free
‘ecclesiastical question[s].’”).

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exercise claim. First, it appears from the documents attached to plaintiff’s amended complaint
that he was permitted to participate both in the Shawwal Fast and the Eid ul-Fitr Family Day
Event. (See Am. Compl. Exs. 15 at 13; 16 at 7). Plaintiff has not alleged that Shi’a inmates are
required to eat at the Family Day Event, thus breaking the Shawwal Fast. In other words, he has
failed to allege his religious freedoms were substantially burdened. Moreover, the change of
date was reasonably related to legitimate penological interests because it was based on the
published statewide Religious Holy Day calendar.
C.

Third Claim

Plaintiff’s third claim—that he was prevented from attending Jumu’ah services between
August and October 2014—does plausibly state a free exercise claim. “It is well established that
prisoners have a constitutional right to participate in congregate religious services.” Salahuddin
v. Coughlin, 993 F.2d at 308. Denying an inmate congregate religious services over a prolonged
period “substantially burdens” that right. See Salahuddin v. Goord, 467 F.3d at 277. Thus, the
allegation that plaintiff was prevented from participating in religious services for two months
plausibly constitutes a substantial burden on plaintiff’s rights. Defendants fail to assert a
compelling reason for this burden. Therefore, the Court declines to dismiss this claim at this
stage. Harris v. Lord, 957 F. Supp. at 475.
D.

Fourth Claim

Plaintiff’s fourth claim—that Shi’a inmates at Orleans have been required to participate
in the observance of the last two days of Ashura with Sunni inmates—also states a free exercise
claim. Defendants argue plaintiff was permitted to attend the services, suggesting that his
religious beliefs were not substantially burdened. However, plaintiff alleges if he had attended
the Ashura event, he would have been “forced to conform to the Sunni Muslims practices and

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belief,” (Am. Compl. Ex. 35 at 4), and as a result, plaintiff “miss[e]d the very last two days of
prayer and the most important tenet of his belief and practices.” (Am. Compl. ¶ 54(c)).
As a result, at this stage, plaintiff has plausibly alleged his religious beliefs were
substantially burdened, and defendants have provided no compelling reason for that burden. 5
E.

Fifth Claim

Defendants have made no arguments in their briefs for why the Court should dismiss
plaintiff’s fifth claim, that defendants at Orleans denied plaintiff’s right to weekly classes, a
separate inmate account, and a separate fundraiser for Shi’a inmates. (Am. Compl. ¶¶ 9-10, 17).
The Court will therefore permit this claim to go forward.
III.

Equal Protection Claim
Defendants argue plaintiff has failed to state an equal protection claim because (i) no

similarly situated group is treated more favorably than plaintiff, and (ii) DOCCS’s policies
withstand rational basis review.
The Court disagrees.
The Equal Protection Clause of the Fourteenth Amendment is “essentially a direction that
all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985). To state a claim under the Equal Protection Clause, a plaintiff must
allege (i) “compared with others similarly situated, [he] was selectively treated; and (ii) that such
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The Court acknowledges that in its October 4, 2016, decision denying plaintiff’s motion
for a preliminary injunction, which dealt with the issue of separate Sunni and Shi’a Ashura
observances, the Court relied on several legitimate penological interests in keeping the two
groups separate when it denied plaintiff’s motion. (Doc. #54). However, plaintiff’s burden with
respect to a preliminary injunction motion—requiring a “clear showing” of a “likelihood of
success on the merits,” among other elements, Sussman v. Crawford, 488 F.3d 136, 139 (2d Cir.
2007); MONY Grp., Inc. v. Highfields Capital Mgmt., L.P., 386 F.3d 138, 143 (2d Cir. 2004)—
is significantly higher than that of “plausible” allegations applied on a motion to dismiss under
Rule 12(b)(6).
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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.” LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980). If a prisoner claims he
received different treatment by prison officials because of a protected characteristic, he must
“demonstrate that he 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).
Here, plaintiff alleges DOCCS permits adherents of different denominations of
Christianity separate accounts, classes, prayer services, and family events, whereas Shi’a inmates
are not given the same treatment and are instead “force[d] . . . to conform to the Sunni Muslims
understanding of Islam.” (Am. Compl. Ex. 35 at 3). Plaintiff also alleges defendants employed
a “selective approach to providing Jumu’ah to all other Islamic groups (Sunni & [Nation of Islam
(“N.O.I.”)] [which] shows a prevailing act of discrimination.” (Am. Compl. Ex. 33 at 5). In
addition, plaintiff alleges “defendant Malin has approved fundraiser for the N.O.I., Sunni
Muslims, Rastafarian, Roman Catholic, catholic, Gods & Earths Nation and occ accounts for
other religious groups [but] denied the Ithna-Asheri Shi’a Islam and the [p]laintiff” the same
privilege. (Am. Compl. ¶¶ 17; 54(a)).
Moreover, although defendants state they have reasons—grounded in “administrative
logistics, space, timing, security, [and] finances”—for providing a “generic” services to all
Muslim inmates, whether Shi’a or Sunni, the Court is unable to conclude as a matter of law on a
motion to dismiss that defendants’ explanations are sufficient to satisfy a rational basis review.
(Defs.’ Br. at 19).
The Court therefore concludes plaintiff has plausibly alleged an equal protection claim.

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IV.

RLUIPA Claim
Defendants argue plaintiff’s claims for monetary relief under RLUIPA should be

dismissed. They also argue plaintiff has failed to state a claim for injunctive relief under
RLUIPA.
The Court agrees any monetary claims under RLUIPA must be dismissed, but disagrees
with respect to plaintiff’s injunctive relief claims.
“RLUIPA does not authorize claims for monetary damages against state officers in either
their official or individual capacities.” Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014)
(citing Washington v. Gonyea, 731 F.3d 143, 145-46 (2d Cir. 2013) (per curiam)). Instead, a
plaintiff may only seek injunctive or declaratory relief under RLUIPA. See Holland v. Goord,
758 F.3d at 224. Moreover, “[a]bsent any request for prospective relief to remedy ongoing
violations of federal law, a declaration that the defendants violated the plaintiff’s constitutional
rights in the past is barred by the Eleventh Amendment.” Hill v. Chapdelaine, 2017 WL 62511,
at *2 (D. Conn. Jan. 5, 2017) (citing Green v. Mansour, 474 U.S. 64, 71-73 (1985)). 6
Accordingly, to the extent plaintiff seeks monetary relief under RLUIPA, those claims
are dismissed.
“Under RLUIPA, a plaintiff must demonstrate that the state has imposed a substantial
burden on the exercise of his religion; however, the state may overcome a RLUIPA claim by
demonstrating that the challenged policy or action furthered a compelling governmental interest
and was the least restrictive means of furthering that interest.” Redd v. Wright, 597 F.3d 532,
536 (2d Cir. 2010); see also Holt v. Hobbs, 135 S. Ct. 853, 862 (2015). “RLUIPA’s ‘substantial

6

Plaintiff will be provided with copies of all unpublished opinions cited in this decision.
See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
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burden’ inquiry asks whether the government has substantially burdened religious exercise . . .
not whether the RLUIPA claimant is able to engage in other forms of religious exercise.” Holt v.
Hobbs, 135 S. Ct. at 862.
As explained above, and contrary to defendants’ contention, plaintiff has plausibly
alleged a substantial burden on his religious exercise when Shi’a inmates were (i) denied
Jumu’ah services for two months, (ii) denied a separate Ashura observance, and (iii) denied
weekly classes, a separate account, and a fundraiser. Defendants for their part have failed to
show—at this stage—that these policies furthered a compelling governmental interest or that
there were no less restrictive means for furthering any such interest.
Accordingly, the Court will permit plaintiff’s claims for injunctive relief under
RLUIPA—limited to these three claims that survive the instant motion—to proceed at this stage.
V.

Personal Involvement
Defendants argue plaintiff has failed to allege defendants Capra, McKoy, Tracz,

Crowley, Fernandez, Cheeseboro, Malin, and Mu’min were personally involved in any of the
alleged constitutional violations. They argue “[d]efendants Morris and Annucci are the only
[d]efendants implicated in formulating and enforcing the policy about which plaintiff
complains.” (Defs.’ Br. at 18).
The Court agrees except with respect to defendants Malin, McKoy, and Fernandez.
“Personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under Section 1983.” Wright v. Smith, 21 F.3d 496, 501
(2d. Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)).
“Supervisor liability under § 1983 ‘can be shown in one or more of the following ways: (1)
actual direct participation in the constitutional violation, (2) failure to remedy a wrong after

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being informed through a report or appeal, (3) creation of a policy or custom that sanctioned
conduct amounting to a constitutional violation, or allowing such a policy or custom to continue,
(4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act
on information indicating that unconstitutional acts were occurring.’” Richardson v. Goord, 347
F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003)).
Here, plaintiff has alleged Malin (i) denied plaintiff’s request for weekly classes, a
separate account, and a fundraiser for Shi’a inmates, and directed him and other Shi’a inmates to
use the Sunni account and fundraiser instead (see Am. Compl. ¶ 18, Ex. 9); (ii) was involved in
the decision to stop permitting separate Shi’a Jumu’ah services (see id. ¶ 33); and (iii) was
involved in the denial of separate Ashura observances (see id. ¶ 36). Plaintiff alleges McKoy
“knowingly denied the plaintiff weekly Jumu’ah services.” (Id. ¶57; Ex. 23 at 3). Moreover,
documents attached to the amended complaint show McKoy was involved in the discussions
regarding allowing Shi’a inmates to have their own account at Orleans. (Id. Ex. 26 at 4).
Finally, plaintiff alleges Fernandez instructed another defendant to close a Shi’a account,
because both Shi’a and Sunni “groups go[] to Mecca to pray[].” (Id. ¶ 54(b)).
However, the allegations made against Capra, Crowley, Cheeseboro, Mu’min, and Tracz
are purely conclusory and fail plausibly to suggest they were personally involved in the relevant
acts here. Therefore, these defendants are dismissed. Provost v. City of Newburgh, 262 F.3d
146, 154 (2d Cir. 2001); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
VI.

Qualified Immunity
Defendants argue they are entitled to qualified immunity on plaintiff’s first, second, and

third claims. Because the Court dismisses plaintiff’s first and second claims, it need not reach

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the question of qualified immunity on those claims. With respect to plaintiff’s third claim, the
Court declines to dismiss the claim on qualified immunity grounds at this time.
Qualified immunity shields government officials from damages suits “insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A
qualified immunity defense is established if “(a) the defendant’s action did not violate clearly
established law, or (b) it was objectively reasonable for the defendant to believe that his action
did not violate such law.” Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998).
After discovery, and based on a more complete record, the Court may well decide it was
objectively reasonable under all the relevant circumstances for defendants to believe that denying
plaintiff congregate religious services for two months did not violate his right to free exercise of
religion. Accordingly, the Court will defer until then the question of whether defendants are
entitled to qualified immunity.

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CONCLUSION
The motion to dismiss is GRANTED as to plaintiff’s first, second, and fifth claims, as
well as to his monetary claims under RLUIPA.
The motion to dismiss is DENIED in all other respects.
By separate order, the Court will schedule an initial conference.
The Clerk is instructed to terminate the motion (Doc. #62), and terminate defendants
Capra, Crowley, Cheeseboro, Mu’min, and Tracz.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962).
Dated: June 29, 2017
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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