Vasquez v. Rockland County Sheriffs Department

Filing 32

OPINION & ORDER re: 27 MOTION to Dismiss Pro Se Amended Complaint, filed by Rockland County. The Motion is granted with prejudice. The Clerk of Court is respectfully requested to terminate the pending Motion, (Dkt. No. 27), and close the case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 1/31/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KIM VASQUEZ,
Plaintiff,
v.

15-CV-8912 (KMK)
OPINION & ORDER

ROCKLAND COUNTY,
Defendant.
Appearances:
Kim Vasquez
Fishkill, NY
Pro Se Plaintiff
Ari Isaac Bauer, Esq.
Catania, Mahon, Milligram & Rider, PLLC
Newburgh, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Kim Vasquez (“Plaintiff”), currently an inmate at Downstate Correctional
Facility, brings this Action under 42 U.S.C. § 1983 against Defendant Rockland County
(“Defendant”). Plaintiff alleges that Defendant violated Plaintiff’s rights under the First, Fifth,
Eighth, Twelfth, and Fourteenth Amendments during the 10 days Plaintiff was incarcerated at
Rockland County Jail. (See Am. Compl. 5 (Dkt. No. 6).) Specifically, Plaintiff alleges that he
was sexually assaulted, denied a change of clothing, denied access to law library material, given
inadequate medical treatment due to the falsification of medical records, and retaliated against
when he attempted to file a grievance. (Id. at 3.) Before the Court is Defendant’s Motion To
Dismiss Plaintiff’s Amended Complaint. (See Mot. To Dismiss (Dkt. No. 27).) For the
following reasons, Defendant’s Motion is granted.

I. Background
A. Factual Background
Plaintiff was first transferred to Rockland County Jail on June 23, 2015 and placed on
precautionary watch, (see Am. Compl. 2), despite notifying the facility that he was not suicidal,
(id.). 1 After being released from precautionary watch, Plaintiff was transferred to the A-Wing of
the facility where he was subjected to a search by a correctional officer (“C.O.”). (Id.) Plaintiff
alleges that during the course of the search, he was ordered to remove his clothing and was
“sexually groped by this C.O. in [Plaintiff’s] private area.” (Id. at 3.) Plaintiff requested to
speak to a sergeant about being sexually assaulted. (Id.) While reporting the incident, the
sergeant told Plaintiff to “stand up, be quiet, and turn around,” (id.), and Plaintiff was then
handcuffed and placed on suicide watch, (id.). Plaintiff alleges that some unidentified prison
official “falsif[ied] [his] medical documents,” (id. at 5), claiming that Plaintiff was “suicidal and
that [he] [made] a prior attempt to injure [himself],” (id. at 3). Plaintiff asserts that the New
York State Office of Mental Health “misdiagnosed” him because the “falsifying o[f] [his]
psychological records . . . misle[]d” the medical staff. (Id.)
Plaintiff further asserts that during “the entire 10 days” he was at Rockland County Jail,
he was “denied a second change of clothes,” (id.), and that “everyday [he] was in [the] facility
[he] requested access to law library material and was not provided with any,” (id.). Plaintiff also
alleges that during his time at Rockland County Jail, he “was denied [his] right to observe the
month of Ramadan” and could not “pray[] and break[] . . . the fast for [his] Muslim religion.”
(Id.) Plaintiff further avers that “[he] was . . . [not] permitted to submit grievances,” (id.), and

1

According to Plaintiff, Rockland County Jail policy dictates that inmates “must be on
suicidal watch before they are placed on precautionary watch.” (Am. Compl. 2.)
2

that he was retaliated against for “attempting to inform” prison officials about the alleged abuses,
(id.). Plaintiff requests relief “i[n] the form of monetary compensation in the dollar amount of
one quabillion dollars U.S. currency.” (Id. at 5.)
B. Procedural History
Plaintiff filed his original Complaint against the Rockland County Sherriff’s Department
on November 12, 2015. (Dkt. No. 2.) On December 14, 2015, Plaintiff’s request to proceed in
forma pauperis was granted. (Dkt. No. 4.) On January 20, 2016, then-Chief Judge Loretta A.
Preska issued an Order To Amend, dismissing five out of six of Plaintiff’s asserted claims as
duplicative of those asserted in other pending actions. (See Order To Amend 2–6 (Dkt. No. 5).) 2
As to Plaintiff’s remaining claim, Judge Preska liberally construed Plaintiff’s Complaint “as
raising First Amendment retaliation, access-to-courts, and free exercise claims.” (Id. at 9.) The
Order To Amend stated that Plaintiff had “not provided sufficient facts to state a claim on any of
these bases,” (id.), but granted Plaintiff “an opportunity to amend [his] complaint to address the
deficiencies” identified, (id. at 12). The Order To Amend instructed Plaintiff to:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff’s case[,] including
what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date
and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and
describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive
relief, or declaratory relief.

2

Plaintiff’s case was initially assigned to then-Chief Judge Preska. On March 17, 2016,
Plaintiff’s case was reassigned to this Court. (See Dkt. (minute entry for Mar. 17, 2016).)

3

(Id. at 13–14.) The Order to Amend further provided that “[e]ach individual defendant must be
named in the caption” and that “[a]ny defendants named in the caption must also be discussed in
Plaintiff’s statement of claim.” (Id. at 13 n.7.) The Order also stated that “[i]f Plaintiff does not
know the name of a defendant, he may refer to that individual as ‘John Doe’ or ‘Jane Doe’ in
both the caption and the body of the amended complaint.” (Id. at 13.)
Plaintiff filed his Amended Complaint on February 4, 2016. (Dkt. No. 6.) Defendant
filed the instant Motion To Dismiss and accompanying memorandum of law on July 21, 2016.
(Mem. of Law in Supp. of Mot. To Dismiss on Behalf of Def. Rockland Cty. (“Def.’s Mem.”)
(Dkt. No. 29).) Plaintiff did not file a response.
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
entitlement 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)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “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, and a plaintiff must allege “only enough facts to state a claim to relief that

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is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claims across the line from
conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific 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.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, “[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); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
Because Plaintiff is proceeding pro se, the Court construes his “submissions . . . liberally”
and interprets them “to raise the strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original) (internal quotation

5

marks omitted). Furthermore, for the same reason, 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. Aug. 2, 2013)
(internal quotation marks omitted).
B. Analysis
1. Monell Liability
Defendant seeks to dismiss Plaintiff’s Complaint against it on the ground that Plaintiff
has failed to state a claim under 42 U.S.C. § 1983 for municipal liability pursuant to Monell v.
Department of Social Services of City of New York, 436 U.S. 658 (1978). “To state a claim
under [§ 1983], the plaintiff must show that a defendant, acting under color of state law, deprived
him of a federal constitutional or statutory right.” Sykes v. Bank of Am., 723 F.3d 399, 405–06
(2d Cir. 2013). “Congress did not intend municipalities to be held liable [under § 1983] unless
action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell,
436 U.S. at 691. Thus, “to prevail on a claim against a municipality under [§] 1983 based on
acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir. 2008); cf. Salvatierra v. Connolly, No. 09-CV-3722, 2010 WL 5480756,
at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing a claim against government agencies where the
plaintiff did not allege that any policy or custom caused the deprivation of his rights), adopted
by 2011 WL 9398 (S.D.N.Y. Jan. 3, 2011); Arnold v. Westchester County, No. 09-CV-3727,
2010 WL 3397375, at *9 (S.D.N.Y. Apr. 16, 2010) (dismissing a claim against the county
because the complaint “[did] not allege the existence of an unconstitutional custom or policy”),

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adopted sub nom. Arnold v. Westchester Cty. Dep’t of Corr., 2010 WL 3397372 (S.D.N.Y. Aug.
25, 2010). The fifth element—that an official policy of the municipality caused the
constitutional injury—reflects the notion that “a municipality may not be held liable under
§ 1983 solely because it employs a tortfeasor.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520
U.S. 397, 403 (1997); see also Newton v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y.
2008) (“As subsequently reaffirmed and explained by the Supreme Court, municipalities may
only be held liable when the municipality itself deprives an individual of a constitutional right.”).
In other words, a municipality may not be held liable under § 1983 “by application of the
doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986)
(italics omitted); see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting
that “a municipal entity may only be held liable where the entity itself commits a wrong”).
Instead, there must be a “direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see also City of
St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments should be held responsible
when, and only when, their official policies cause their employees to violate another person’s
constitutional rights.”). “In determining municipal liability, it is necessary to conduct a separate
inquiry into whether there exists a ‘policy’ or ‘custom.’” Davis v. City of New York, 228 F.
Supp. 2d 327, 336 (S.D.N.Y. 2002), aff’d, 75 F. App’x 827 (2d Cir. 2003). Normally, “a custom
or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere
employee of the [municipality].” Newton, 566 F. Supp. 2d at 271; see also Oklahoma City v.
Tuttle, 471 U.S. 808, 823–24 (1985) (plurality opinion) (“Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing, unconstitutional municipal policy,

7

which policy can be attributed to a municipal policymaker.”); Brogdon v. City of New Rochelle,
200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally insufficient
to establish the affirmative link between the municipal policy or custom and the alleged
unconstitutional violation.”).
A plaintiff may satisfy the “policy or custom” requirement by alleging one of the
following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted);
see also Roe, 542 F.3d at 37 (describing the second category for establishing Monell liability);
Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (describing methods of
establishing Monell liability). Moreover, a plaintiff must also establish a causal link between the
municipality’s policy, custom, or practice and the alleged constitutional injury. See Tuttle, 471
U.S. at 824 n.8 (“The fact that a municipal ‘policy’ might lead to ‘police misconduct’ is hardly
sufficient to satisfy Monell’s requirement that the particular policy be the ‘moving force’ behind
a constitutional violation. There must at least be an affirmative link between[, for example,] the
training inadequacies alleged, and the particular constitutional violation at issue.”); Roe, 542
F.3d at 37 (holding that “a plaintiff must demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the alleged injury” (quoting Brown, 520 U.S. at
404)); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“Absent a showing of a causal
link between an official policy or custom and the plaintiffs’ injury, Monell prohibits a finding of
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liability against the [c]ity.”); Johnson v. City of New York, No. 06-CV-9426, 2011 WL 666161,
at *3 (S.D.N.Y. Feb. 15, 2011) (noting that after demonstrating the existence of a municipal
policy or custom, “a plaintiff must establish a causal connection—an affirmative link—between
the policy and the deprivation of his constitutional rights” (internal quotation marks omitted)).
Plaintiff has not identified any formal policy or informal custom of Defendant that caused
his alleged injuries, nor has he suggested that individuals responsible for establishing municipal
policies caused his deprivation, or that employees were improperly trained. Plaintiff’s only
allegation that could be construed as asserting a violation under Monell is that “right denial is
very common when it involves Muslim[s].” (Am. Compl. 3.) Yet, Plaintiff offers no examples
of Rockland County officials violating the rights of Muslims or any policy that discriminates
against Muslims. Thus, Plaintiff has failed to state a claim against Defendant Rockland County
pursuant to Monell. See City of Canton, 489 U.S. at 385 (noting that there must be a “direct
causal link between a municipal policy or custom and the alleged constitutional deprivation”);
see Adams v. Orange County, No. 13-CV-8549, 2015 WL 5459794, at *5 (S.D.N.Y. Sept. 1,
2015) (dismissing the plaintiff’s Monell claims as “entirely conclusory” because he “ha[d] not
identified any specific municipal policy or custom that caused his injuries or provided any
allegations supporting a plausible inference of a pattern and practice through a failure to train or
supervise.”); Davis v. City of New York, No. 07-CV-1395, 2008 WL 2511734, at *6 (S.D.N.Y.
June 19, 2008) (“[C]onclusory allegations that a municipality failed to train and supervise its
employees is insufficient to state a Monell claim.”).
2. Retaliation Claim
Plaintiff also alleges that Defendant retaliated against Plaintiff by placing him on suicide
watch as a result of his “attempting to inform” prison officials of the purported abuses, (see Am.

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Compl. 3), and that Plaintiff’s grievances were “rejected” and “given back to [him],” (id. at 3, 4).
Defendant contends that Plaintiff has “failed to identify any prison official in the body of the
Amended Complaint . . . who [P]laintiff is claiming took any adverse action against him,”
(Def.’s Mem. 10), and that “[P]laintiff’s generalized allegations that he was assaulted . . . in
retaliation [for] [his] attempt to inform . . . [are] unintelligible on [their] face and [are] utterly
insufficient to sufficiently allege facts establishing any causal connection between the alleged
adverse action and protected conduct,” (id. (alteration and internal quotation marks omitted)).
The Court interprets these allegations as raising a retaliation claim under the First Amendment.
To state a First Amendment retaliation claim, Plaintiff must allege “(1) that the speech or
conduct at issue was protected, (2) that . . . [D]efendant took adverse action against . . . [him],
and (3) that there was a causal connection between the protected conduct and the adverse
action.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (alteration and internal quotation
marks omitted); see also Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *9
(S.D.N.Y. Mar. 30, 2015) (same). “[B]ecause virtually any adverse action taken against a
prisoner by a prison official—even those otherwise not rising to the level of a constitutional
violation—can be characterized as a constitutionally proscribed retaliatory act,” the Second
Circuit has instructed district courts to “approach prisoner retaliation claims with skepticism and
particular care.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (internal quotation marks
omitted); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“Retaliation claims by
prisoners are prone to abuse since prisoners can claim retaliation for every decision they dislike.”
(internal quotation marks omitted)).
Here, Defendant does not dispute that Plaintiff has adequately alleged that he engaged in
constitutionally protected activity based on his assertion that he attempted to “submit

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grievances.” (Am. Compl. 3.) “The filing of lawsuits or prison grievances is a constitutionally
protected activity.” Houston v. Zen Zen, 388 F. Supp. 2d 172, 174 (W.D.N.Y. 2005); see also
Dolan, 794 F.3d at 294 (“[I]t is well established that ‘retaliation against a prisoner for pursuing a
grievance violates the right to petition government for the redress of grievances guaranteed by
the First and Fourteenth Amendments and is actionable under § 1983.’” (quoting Graham, 89
F.3d at 80)); Baskerville v. Blot, 224 F. Supp. 2d 723, 731 (S.D.N.Y. 2002) (noting that a
“prisoner’s filing of a grievance” and “the filing of a lawsuit” are “constitutionally protected
activit[ies]”).
Although Plaintiff has adequately alleged that he engaged in protected conduct, he has
failed to allege which employee of Defendant took an “adverse action” against him in retaliation
for that conduct. An action qualifies as an “adverse action” for purposes of a retaliation claim
only if the action would “deter a prisoner of ordinary firmness from vindicating his or her
constitutional rights through the grievance process and the courts.” Gill v. Pidlypchak, 389 F.3d
379, 384 (2d Cir. 2004); see also Muhammad v. Jenkins, No. 12-CV-8525, 2013 WL 5225573, at
*9 (S.D.N.Y. Sept. 13, 2013) (same). It is unclear whether placing Plaintiff on suicide watch
rises to such a level. Even assuming it does, however, Plaintiff has not alleged sufficient facts
showing “a causal connection between the protected conduct and the adverse action.” Holland,
758 F.3d at 225 (alteration and internal quotation marks omitted). Plaintiff does not allege that
individuals involved in the decision to place him on suicide watch were aware of Plaintiff’s
grievance, let alone named in that grievance. See Wright v. Goord, 554 F.3d 255, 274 (2d Cir.
2009) (dismissing retaliation claim against a corrections officer when the only alleged basis for
retaliation was a complaint about a prior incident by another correctional officer); Tirado v.
Shutt, No. 13-CV-2848, 2015 WL 774982, at *10 (S.D.N.Y. Feb. 23, 2015) (“Absent evidence

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that any defendant knew about his . . . grievance, [the plaintiff] has failed to provide any basis to
believe that they retaliated against him for a grievance in which they were not named.”), adopted
in relevant part by 2015 WL 4476027 (S.D.N.Y. July 22, 2015); Jones v. Fischer, No. 10-CV1331, 2013 WL 5441353, at *21 (N.D.N.Y. Sept. 27, 2013) (dismissing the plaintiff’s retaliation
claims and noting such claims “have been dismissed when they are supported only by conclusory
allegations that the retaliation was based upon complaints against another officer”); Roseboro v.
Gillespie, 791 F. Supp. 2d 353, 369 (S.D.N.Y. 2011) (finding the plaintiff failed to provide any
basis to believe that a defendant would retaliate for a grievance in which the defendant was not
named and of which he was unaware); see also Alston v. Pafumi, No. 09-CV-1978, 2016 WL
81785, at *7 (D. Conn. Jan. 7, 2016) (granting partial summary judgment where the plaintiff
identified “no record evidence from which a reasonable jury could infer that any other defendant
was aware of [the plaintiff’s] complaints”), clarifying on denial of reconsideration, 2016 WL
447423 (D. Conn. Feb. 4, 2016). Accordingly, Plaintiff has failed to state a claim for retaliatory
action in violation of his First Amendment rights.
3. Denial of Access to the Courts
Plaintiff alleges that “everyday [he] was in [Rockland County Jail] [he] requested access
to law library material and was not provided with any.” (Am. Compl. 3.) In response,
Defendant asserts that Plaintiff’s access-to-courts claim must be dismissed as a matter of law.
(See Def.’s Mem. 11.)
“Prisoners . . . have a constitutional right of access to the courts.” Bourdon v. Loughren,
386 F.3d 88, 92 (2d Cir. 2004) (internal quotation marks omitted). However, impairment of an
inmate’s “litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.” Pollack v. Holanchock, No. 10-CV-2402, 2012

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WL 1646893, at *2 (S.D.N.Y. May 10, 2012) (internal quotation marks omitted). “Mere delay in
being able to work on one’s legal action or communicate with the courts does not rise to the level
of a constitutional violation.” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (internal
quotation marks omitted); see also Smith v. City of New York, No. 14-CV-443, 2015 WL
1433321, at *3 (S.D.N.Y. Mar. 30, 2015) (same).
“To establish a constitutional violation based on denial of access to the courts, a plaintiff
must show that the defendant’s conduct was deliberate and malicious, and that the defendant’s
actions resulted in an actual injury to the plaintiff.” Bellezza v. Holland, 730 F. Supp. 2d 311,
314 (S.D.N.Y. 2010) (internal quotation marks omitted); see also Monsky v. Moraghan, 127 F.3d
243, 247 (2d Cir. 1997) (“In order to establish a violation of a right of access to courts, a plaintiff
must demonstrate that a defendant caused actual injury, i.e., took or was responsible for actions
that hindered a plaintiff’s efforts to pursue a legal claim.” (alteration, italics, citation, and internal
quotation marks omitted)).
To make good a claim of injury, a plaintiff must plausibly allege “that a nonfrivolous
legal claim had been frustrated or was being impeded due to the actions of prison officials.”
Williams v. Superintendent of Brooklyn Det. Ctr., No. 15-CV-6085, 2015 WL 7281646, at *2
(E.D.N.Y. Nov. 17, 2015); see also Quezada v. Roy, No. 14-CV-4056, 2015 WL 5970355, at *12
(S.D.N.Y. Oct. 13, 2015) (finding a plaintiff must “demonstrate that the defendant’s conduct
frustrated the plaintiff’s efforts to pursue a nonfrivolous claim.” (internal quotation marks
omitted)). For example, a plaintiff could show that he “has been unable to file a complaint or
[has] had a complaint dismissed for failure to observe a technicality” as a result of a defendant’s
actions. Benjamin v. Fraser, 264 F.3d 175, 184 (2d Cir. 2001).

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Here, Plaintiff alleges no injury from his purported denial of access to the courts. For
example, Plaintiff does not allege that he was unable to meet a deadline or communicate with
court personnel as a result of Defendant’s actions, nor does he allude to undesirable outcomes of
any identified proceeding. As a result, the Court can find no indication that Plaintiff was
prejudiced or his efforts frustrated, let alone at the hands of any employee of Defendant.
Accordingly, Plaintiff’s access-to-the-courts claim is dismissed.3
4. Religious Liberty Claims
The Court construes Plaintiff’s Amended Complaint as asserting a claim under the First
Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
“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.

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To the extent the Amended Complaint raises a claim for inadequate processing of
Plaintiff’s grievances, (see Am. Compl. 3, 4 (alleging that Plaintiff’s grievances were “rejected”
and “given back to [him]”)), such a claim would fail as a matter of law. The First Amendment
protects a prisoner’s right to meaningful access to the courts and to petition the government for
the redress of certain claims. See Bill Johnson’s Rests., Inc. v. N.L.R.B., 461 U.S. 731, 741
(1983). However, because inmate grievance procedures created by state law are not required by
the Constitution, “allegations that prison officials violated those procedures do[] not give rise to
a cognizable § 1983 claim.” Shabazz v. Dzurenda, No. 16-CV-62, 2016 WL 4203395, at *4 (D.
Conn. Aug. 9, 2016) (internal quotation marks omitted). Where “prison officials ignore a
grievance that raises constitutional claims, an inmate can directly petition the government for
redress of that claim.” Tafari v. McCarthy, 714 F. Supp. 2d 317, 360 (N.D.N.Y. 2010) (internal
quotation marks omitted). Accordingly, “the refusal to process an inmate’s grievance or failure
to see to it that grievances are properly processed does not create a claim under § 1983.” Id.
(internal quotation marks omitted); see also Harris v. Westchester Cty. Dep’t of Corr., No. 06CV-2011, 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008) (holding that the “plaintiff[’]s claim
regarding [the] defendants’ allegedly negligent mishandling of grievances cannot, as a matter of
law, support a claim under [§] 1983”). Moreover, any claim that Plaintiff was deprived of his
right to petition the government for redress is belied by the filing of this Action (and numerous
other actions). Cf. Harris, 2008 WL 953616, at *5 (“[I]n the event that prison officials ignore a
grievance that raises constitutional claims, the proper avenue to seek relief is the course taken by
[the] plaintiff here: directly petitioning the government for redress of his claims.”).
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Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). A prisoner’s First Amendment rights, 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) (report and recommendation) (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
sincerely held religious beliefs.” Washington, 2015 WL 1439348, at *9 (alteration and internal
quotation marks omitted); see also Salahuddin v. Goord, 467 F.3d 263, 274–75 (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 [the] plaintiff’s claim is based upon a
sincerely held religious belief.” (alteration and internal quotation marks omitted)). 4 In

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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 sincerely held religious
beliefs.” Holland, 758 F.3d at 220. 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 221. 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).
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determining whether a belief is “sincere,” “an individual . . . 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 (alteration 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 v. Fishcer, No. 13-CV-3167,
2015 WL 769551, at *7 (S.D.N.Y. Feb. 24, 2015) (internal 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 v. Goord, 467 F.3d at 275). The burden then shifts to the inmate
“to show that these articulated concerns were irrational.” Salahuddin v. Goord, 467 F.3d at 275
(alteration and internal quotation marks omitted).
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, 758 F.3d at 224 (alterations and internal quotation marks
omitted); see also Salahuddin v. Goord, 467 F.3d at 273 (“RLUIPA protects inmates by

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providing that a government shall not ‘impose a substantial burden’ on the ‘religious 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)). “Since substantial burden is a term of art in the Supreme Court’s free
exercise jurisprudence [the Second Circuit] assume[s] that Congress, by using it, planned to
incorporate the cluster of ideas associated with the Court’s use of it.” Westchester Day Sch. v.
Village of Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007). 5 Whether a prisoner sufficiently
pleads a substantial burden on a sincerely held religious belief under RLUIPA involves the same
threshold analysis as under the Free Exercise Clause. See Valdez v. City of New York, No. 11CV-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 v.
Goord, 467 F.3d at 274–75)), adopted in relevant part 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
demonstrate that the practice furthers a compelling governmental interest, and that the burden

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As noted, a substantial burden is one that “put[s] substantial pressure on an adherent to
modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707, 718 (1981)).
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imposed on religion is the least restrictive means of achieving that interest.” Jova v. Smith, 582
F.3d 410, 415 (2d Cir. 2009) (per curiam) (citing 42 U.S.C. § 2000cc-2(b)).
Defendant does 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 his ability to
exercise his religious beliefs was substantially burdened. Plaintiff asserts that he “was denied
[his] right to observe the month of Ramadan in the facility” and denied the right to “pray[] and
break[] . . . the fast for [his] Muslim religion on numerous different days due to being put on
suicide watch.” (Am. Compl. 3.) It is unclear how Defendant’s alleged conduct—placing
Plaintiff on suicide watch—burdened Plaintiff’s ability to pray or fast. Without providing
specific facts beyond the conclusory allegations in the Amended Complaint, Plaintiff fails to
state a claim under the First Amendment. See Twombly, 550 U.S. at 555; see also Shakur v.
Graham, No. 14-CV-427, 2015 WL 1968492, at *13 (N.D.N.Y. May 1, 2015) (dismissing the
plaintiff’s “conclusory allegation that [the defendants] violated his free exercise rights”).
To the extent that Plaintiff raises a RLIUPA claim, this claim also fails. “RLUIPA does
not authorize claims for 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 to redress a RLUIPA violation. See Holland, 758 F.3d at 224; 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 quotation marks omitted)), aff’d, 694

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F.3d 208 (2d Cir. 2012). Here, Plaintiff requests “one quabillion dollars” in monetary damages,
(Am. Compl. 5), which is an unavailable remedy. See Holland, 758 F.3d at 224. Defendant’s
Motion, therefore, is granted as to Plaintiff’s claims under the First Amendment and RLUIPA.
5. Dismissal With Prejudice
A complaint should be dismissed without prejudice if the pleading, “‘liberally read,’
suggests that the plaintiff has a claim that he has inadequately or inartfully pleaded and that he
should therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (alterations and citation omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999)). If a complaint, however, has substantive problems and “[a] better pleading
will not cure [them],” “[s]uch a futile request to replead should be denied.” Id. (citing Hunt v.
All. N. Am. Gov’t Income Tr., 159 F.3d 723, 728 (2d Cir. 1998)). Even a pro se plaintiff is not
entitled to file an amended complaint if the complaint “contains substantive problems such that
an amended pleading would be futile.” Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173,
2012 WL 12876, at *9 (S.D.N.Y. Jan. 3, 2012), aff’d, 523 F. App’x 32 (2d Cir. 2013). Courts
are especially wary of giving a plaintiff multiple “bites at the apple” where—as is the case
here—the plaintiff has already been granted leave to amend. See Anthony v. Brockway, No. 15CV-451, 2015 WL 5773402, at *3 (N.D.N.Y. Sept. 30, 2015) ([The] [p]laintiff has already been
given one opportunity to amend his complaint . . . , and there is nothing in his second amended
complaint suggesting that [he] could do better given another opportunity.”); Al-Qadaffi v. Servs.
for the Underserved (SUS), No. 13-CV-8193, 2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015)
(denying leave to amend where “[the plaintiff] has already had one chance to amend his
[c]omplaint, and there is still no indication that a valid claim might be stated if given a second
chance”), aff’d, 632 F. App’x 31 (2d Cir. 2016); Bui v. Indus. Enters. of Am., Inc., 594 F. Supp.

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2d 364, 373 (S.D.N.Y . 2009) (dismissing an amended complaint with prejudice where the
plaintiff failed to cure the deficiencies identified in his initial complaint despite " being given
ample opportunity to do so") .
Here, Plaintiffs original Complaint was dismissed on all grounds by Judge Preska, with
leave to amend in a limited respect. (See Order To Amend.) Plaintiff did so, (see Am . Campi.),
but failed to cure the deficiencies identified in the Order to Amend. Even when presented with
specific instructions as to each defect, (see Order To Amend), Plaintiff has again failed to state a
claim. Accordingly, the dismissal of the Amended Complaint is with prejudice. See Al-Qadajji,
2015 WL 58580 I , at *3 , 8 (dismissing amended complaint with prejudice following an order to
amend issued by then-Chief Judge Preska) ; Velez v. Hay es, 346 F. Supp. 2d 557, 560 (S .D.N.Y.
2004) (dismissing amended complaint with prejudice " insofar as [the claims] merely repeat
claims that [the] Chief Judge['s] Order had dismissed").
III. Conclusion
For the foregoing reasons, the Motion is granted with prejudice. The Clerk of Court is
respectfully requested to terminate the pending Motion, (Dkt. No . 27), and close the case.
SO ORDERED.
Dated:

Januaryli, 2017
White Plains, New York

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