Allah v. Annucci et al

Filing 41

OPINION & ORDER re: 23 MOTION to Dismiss the Complaint filed by Thomas Griffin, Cheryl Morris, Jaifa Collado, Anthony Annucci. For the foregoing reasons, Defendants' Motion To Dismiss is granted as to all claims against Commis sioner Annucci and Superintendent Griffin and denied as to Plaintiff's claims regarding his denial of attendance at Ghadir Khum and Mubahila as against Morris and Collado. In light of Plaintiff's pro se status, and because this is the first adjudication of Plaintiff's claims on the merits, those claims that are dismissed are dismissed without prejudice. If Plaintiff wishes to file an Amended Complaint alleging additional facts and otherwise addressing the deficiencies identified above, Plaintiff must do so within 30 days of the date of this Opinion & Order. The failure to do so may result in the dismissal of Plaintiff's claims with prejudice. If Plaintiff files no Amended Complaint, the Court will assume Plaintiff inte nds only to proceed with the claims regarding failure to provide equal accommodations to Shi'ite Muslims and state law claims against Defendants Morris and Collado. The Clerk of Court is respectfully requested to terminate the pending Motion, ( see Dkt. No. 23), and mail a copy of this Opinion & Order to Plaintiff at the address listed on the docket. SO ORDERED. Anthony Annucci (Commissioner of DOCCS) and Thomas Griffin (Superintendent at Green Haven Corr. Fac.) terminated. (Signed by Judge Kenneth M. Karas on 9/7/2017) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAKIM ABD ALLAH,
Plaintiff,
v.

No. 16-CV-1841 (KMK)

ANTHONY ANNUCCI; CHERYL
MORRIS; THOMAS GRIFFIN; JAIFA
COLLADO,

OPINION & ORDER

Defendants.
Appearances:
Shakim Abd Allah
Comstock, NY
Pro Se Plaintiff
Bradley G. Wilson, Esq.
New York State Office of the Attorney General
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Shakim Abd Allah (“Plaintiff”), currently an inmate at Great Meadow
Correctional Facility, brings this pro se Action against Anthony Annucci (“Commissioner
Annucci”), Cheryl Morris (“Morris”), Thomas Griffin (“Superintendent Griffin”), and Jaifa
Collado (“Collado,” and collectively, “Defendants”), alleging Defendants violated his rights
under the First and Fourteenth Amendments and New York State law when they denied
Plaintiff’s attendance at certain religious events and failed to provide religious accommodations
while Plaintiff was incarcerated at Green Haven Correctional Facility. (See Compl. (Dkt. No.
2).) As a result of these alleged violations, Plaintiff contends that he could not “freely practice
his religion.” (Id. ¶ 48.) Before the Court is Defendants’ Motion To Dismiss the Complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the “Motion”). (See Dkt.
No. 23.) For the reasons to follow, Defendants’ Motion is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are taken from the Complaint and the documents appended thereto,
and are assumed true for the purpose of resolving the Motion.
1. Denial of Attendance at Religious Events
On October 2 and October 8, 2015, Plaintiff was “denied his right to attend the Shi’ite
religious event[s] of Ghadir Khum . . . and Mubahila.” (Compl. ¶ 14.) On October 13, 2015,
Plaintiff “filed a grievance” and “also wrote a letter to Defendant Collado dated [October 9,
2015] regarding the denial of his rights to attend these events.” (Id.) The letter to Collado
notified him that Plaintiff was “requesting approval to attend the 10 days of Ashura which started
on [October 15, 2015] and finished on [October 24, 2015].” (Id.) On October 23, 2015, Plaintiff
“sent a letter to Defendant Annucci, regarding his being denied attendance at the Shia Holy Days
[o]f Ghadir Khum, Mubahila, and Ashura.” (Id. ¶ 35.) On the same day, Plaintiff sent a letter to
Defendant Morris. (See id. ¶ 38.) Plaintiff alleges that Commissioner Annucci and Morris never
responded to his letters, (see id. ¶¶ 36, 38), and “Collado[] did not respond to Plaintiff[’s] . . .
letter until [November 5, 2015], after . . . Plaintiff . . . had already been denied attendance at
Ashura,” (id. ¶ 38).
Plaintiff asserts that he “was entitled to a hearing on his grievance within 16 calendar
days of the receipt of his grievance” and that on December 18, 2015, he “sent a letter to [the
Inmate Grievance Request Program (‘IGRP’)] Supervisor L. Stanway, requesting that his
grievance . . . be sent to Superintendent Griffin for decision” within 21 days. (Id. ¶¶ 19–20.) On

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January 11, 2016, Plaintiff “sent a letter to IGRP Supervisor L. Stanway requesting that his
grievance be forwarded to [the Central Office Review Committee (‘CORC’) for] review and
decision.” (Id. ¶ 21.) Plaintiff alleges that “CORC failed to render a decision on both grievances
within 30 days” in violation of certain regulations. (Id. ¶ 22.)
2. Accommodation of Other Faith Groups
Plaintiff contends that “Defendants recognize and provide accom[m]odations to many
faith groups within the inmate population” and that these “religious groups are provided with a
Chaplain that serves as a religious leader for the group.” (Id. ¶¶ 39–40.) Additionally,
“[i]nmates registered as members of a recognized group may attend their own congregational
worship service and religious classes, facilitated by the Chaplain or an approved volunteer, or an
approved inmate facilitator, and may observe religious holidays as listed on the annual
[Department of Corrections and Community Supervision (‘DOCCS’)] religious calendar.” (Id.
¶ 40.) Plaintiff avers that “all of the religious groups recognized . . . are also allowed to have a
fund[]raiser to raise money to purchase religious text books and educational material about their
faith.” (Id. ¶ 41.)
Plaintiff alleges that “[t]he Islamic program offered by . . . Defendants is a Sunni Muslim
religious program, because the Chaplain is a Sunni Muslim, the sermons during Juma’ah service
focus on Sunni Muslim [t]eachings, . . . the majority of classes offered in DOCCS facilities are
for Sunni Muslims, and the money raised through fund[]raisers is used to purchase Sunni
Muslim texts and other educational material.” (Id. ¶ 42.) “In sum,” Plaintiff asserts, “the
program is dominated, controlled[,] and officiated exclusively by Sunni Muslims,” (id.), despite
the fact that “there are more inmates that [i]dentify as Shia in the DOCCS system th[a]n there are
inmates that belong to many of the religious groups that DOCCS currently recognize[s],” (id.

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¶ 46). Plaintiff asserts that “[a] Sunni Muslim . . . can[]not provide religious guidance and
counseling to Shia Muslims.” (Id. ¶ 26.) Furthermore, “Plaintiff . . . believes . . . that congregate
prayer service on [F]riday, the Juma’ah service, [is] fundamental to the practice of his religion,”
(id. ¶ 29), and “that the leader of the congregate prayer during Juma’ah service must be a fellow
Shia, who correctly leads prayer, and is mature, sane, just, and legitimate by birth,” and that such
prayer is “invalid if the leader does not meet these requirements,” (id. ¶ 30). 1
As a result of these alleged violations, Plaintiff seeks declaratory and injunctive relief,
compensatory damages in the amount of $100,000, punitive damages, and “costs [and] [i]nterests
to the extent permitted by law.” (Id. at 10–11.)
B. Procedural History
Plaintiff filed the Complaint on March 11, 2016. (See Dkt. No. 2.) Plaintiff’s request to
proceed in forma pauperis was granted on March 16, 2016. (See Dkt. No. 4.) In a memo
endorsement dated July 19, 2016, the Court issued a schedule for briefing on the instant Motion.
(See Dkt. No. 19.) On September 2, 2016, Defendants filed the instant Motion To Dismiss and
accompanying papers. (See Dkt. Nos. 23–27.) On October 3, 2016, Plaintiff filed his papers in
opposition. (See Dkt. Nos. 28–30.) Defendants filed their reply on October 21, 2016. (See Dkt.
No. 33.)
II. Discussion
A. Standard of Review
“The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction and under 12(b)(6) for failure to state a claim are substantively identical.”

1

In a section titled “Background of Shia and Sunni Differences,” Plaintiff details his
version of the history of and distinctions between Shia and Sunni Islam. (See Compl. ¶¶ 23–34.)
4

Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn.
June 3, 2014) (internal quotation marks omitted); see also Neroni v. Coccoma, No. 13-CV-1340,
2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (same), aff’d, 591 F. App’x 28 (2d Cir. 2015).
“In deciding both types of motions, the Court must accept all factual allegations in the complaint
as true, and draw inferences from those allegations in the light most favorable to the plaintiff.”
Gonzalez, 2014 WL 2475893, at *2 (internal quotation marks omitted); see also Seemann v. U.S.
Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1 (D. Vt. June 4, 2012) (same). However,
“[o]n a Rule 12(b)(1) motion, . . . the party who invokes the Court’s jurisdiction bears the burden
of proof to demonstrate that subject matter jurisdiction exists, whereas the movant bears the
burden of proof on a motion to dismiss under Rule 12(b)(6).” Gonzalez, 2014 WL 2475893, at
*2; see also Sobel v. Prudenti, 25 F. Supp. 3d 340, 352 (E.D.N.Y. 2014) (“In contrast to the
standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff
asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists.” (internal quotation marks omitted)). This allocation of the burden of
proof is “[t]he only substantive difference” between the standards of review under these two
rules. Smith v. St. Luke’s Roosevelt Hosp., No. 08-CV-4710, 2009 WL 2447754, at *9 n.10
(S.D.N.Y. Aug. 11, 2009), adopted by 2009 WL 2878093 (S.D.N.Y. Sept. 2, 2009); see also
Fagan v. U.S. Dist. Court for S. Dist. of N.Y., 644 F. Supp. 2d 441, 446–47 & n.7 (S.D.N.Y.
2009) (same).
1. Rule 12(b)(1)
“A federal court has subject matter jurisdiction over a cause of action only when it has
authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233,
241 (E.D.N.Y. 2014) (internal quotation marks omitted). “Determining the existence of subject

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matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (internal quotation marks omitted), aff’d, 561 U.S. 247 (2010); see also Butler v. Ross,
No. 16-CV-1282, 2016 WL 3264134, at *3 (S.D.N.Y. June 14, 2016) (same). Nevertheless,
“[u]nlike Article III standing, which ordinarily should be determined before reaching the merits,
statutory standing may be assumed for the purposes of deciding whether the plaintiff otherwise
has a viable cause of action.” Coan v. Kaufman, 457 F.3d 250, 256 (2d Cir. 2006) (citation
omitted). While a district court resolving a motion to dismiss under Rule 12(b)(1) “must take all
uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of
the party asserting jurisdiction,” “where jurisdictional facts are placed in dispute, the court has
the power and obligation to decide issues of fact by reference to evidence outside the pleadings,
such as affidavits,” in which case “the party asserting subject matter jurisdiction has the burden
of proving by a preponderance of the evidence that it exists.” Tandon v. Captain’s Cove Marina
of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alteration and internal quotation marks
omitted); see also Ray Legal Consulting Grp. v. Gray, 37 F. Supp. 3d 689, 696 (S.D.N.Y. 2014)
(“[W]here subject matter jurisdiction is contested a district court is permitted to consider
evidence outside the pleadings, such as affidavits and exhibits.”).
2. Rule 12(b)(6)
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his [or her] 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) (citations,

6

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). Instead, 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
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] 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
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.’” (citation omitted) (second alteration in original) (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) (per
curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency
of a complaint we accept as true all factual allegations . . . . ” (internal quotation marks omitted));
Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013) (“In reviewing a

7

dismissal pursuant to Rule 12(b)(6), we . . . accept all factual allegations in the complaint as
true . . . .” (alteration and internal quotation marks omitted)). Further, “[f]or the purpose of
resolving [a] motion to dismiss, the Court . . . draw[s] 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)).
Where, as here, a plaintiff proceeds pro se, the court must “construe[] [his] [complaint]
liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks omitted); see also
Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at *12 (S.D.N.Y. Dec. 2,
2013) (same), aff’d sub nom. Farzan v. Genesis 10, 619 F. App’x 15 (2d Cir. 2015). In deciding
a motion to dismiss a pro se complaint, 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), 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. Dec. 15, 2010)
(italics omitted); see also Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (noting that a
court may consider “factual allegations made by a pro se party in his papers opposing the
motion” (italics omitted)). However, “the liberal treatment afforded to pro se litigants does not
exempt a pro se party from compliance with relevant rules of procedural and substantive law.”
Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted); see
also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally
are required to inform themselves regarding procedural rules and to comply with them.” (italics
and internal quotation marks omitted)).

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B. Analysis
Defendants contend that Plaintiff’s Complaint must be dismissed for two reasons: (1)
Plaintiff did not exhaust his administrative remedies, and (2) Plaintiff failed to plausibly allege a
violation of his constitutional rights with respect to the denial of attendance at two religious
events. (See generally Mem. of Law in Supp. of the Defs.’ Mot. To Dismiss (“Defs.’ Mem.”)
(Dkt. No. 24).) Defendants also argue that the claims against Commissioner Annucci and
Superintendent Griffin must be dismissed because these Defendants were not personally
involved in the events giving rise to this Action. (See id. at 7–9.)
1. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“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 (2002)
(holding exhaustion is required for “all inmate suits about prison life, whether they involve
general circumstances or particular episodes”); see also Johnson v. Killian, 680 F.3d 234, 238
(2d Cir. 2012) (per curiam) (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) (alteration omitted) (quoting

9

Woodford v. Ngo, 548 U.S. 81, 88, 90 (2006)); see also Jones v. Bock, 549 U.S. 199, 211 (2007)
(“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court.”).
As a general matter, the New York State DOCCS Inmate Grievance Program (“IGP”)
outlines the procedures that apply to grievances filed by inmates in New York State correctional
facilities. The IGP provides for a three-step grievance process. See 7 N.Y. Comp. Codes R. &
Regs. (“N.Y.C.R.R.”) § 701 et seq.; see also Abdallah v. Ragner, No. 12-CV-8840, 2013 WL
7118083, at *2 (S.D.N.Y. Nov. 22, 2013) (noting that “[DOCCS] provides an administrative
remedy for many prisoners’ claims,” which is “a grievance system available to prisoners in
custody at state prisons” (citing 7 N.Y.C.R.R. § 701.1(c))). Under the framework used in typical
cases, an inmate must first file a complaint at the facility where the inmate is housed within 21
calendar days of an alleged occurrence. See 7 N.Y.C.R.R. § 701.5(a)(1). The second step in the
tripartite framework is for the grievant or any direct party to appeal the Inmate Grievance
Review Committee’s decision to the prison superintendent within seven calendar days after
receipt of the written response, although the appealing party can seek an exception to the time
limit, see id. § 701.5(c)(1). The third and final step is to appeal the superintendent’s decision to
the CORC, which the prisoner must do within seven days of the superintendent’s written
response to the grievance. See id. § 701.5(d)(1)(i). Here, too, an inmate may request an
exception to the time limit, see id. “[O]nly after CORC has reviewed the appeal and rendered a
decision are New York’s grievance procedures exhausted.” Gardner v. Daddezio, No. 07-CV7201, 2008 WL 4826025, at *2 (S.D.N.Y. Nov. 5, 2008).
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 administrative remedies

10

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). In other words, “[s]ubsequent exhaustion after suit is filed . . . is insufficient,” Neal v.
Goord, 267 F.3d 116, 122 (2d Cir. 2001), overruled on other grounds by Porter, 534 U.S. 516,
even where “‘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 3816590, at *6 (quoting Mateo v.
Alexander, 2010 WL 431718, at *3).
Defendants bear the burden of proving that Plaintiff failed to exhaust available
administrative remedies. See McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003)
(“[The] defendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion
with particularity.”); see also Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (“[I]nmates
are not required to specially plead or demonstrate exhaustion in their complaints.” (internal
quotation marks omitted)). Thus, a motion to dismiss for failure to exhaust should be granted
only if “nonexhaustion is clear from the face of the complaint.” Lovick v. Schriro, No. 12-CV7419, 2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (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.”).
While Defendants raise Plaintiff’s failure to exhaust in their Motion To Dismiss, on
February 28, 2017, Defendants filed a letter informing the Court that “subsequent to the filing of
the Motion, CORC rendered a decision on Plaintiff’s grievance.” (Letter from Bradley G.

11

Wilson, Esq., to Court (Feb. 28, 2017) (Dkt. No. 36).) Defendants concede that Plaintiff has now
exhausted his administrative remedies, but that “[t]his development [does] not change the fact
that Plaintiff had not exhausted his remedies before filing the Complaint.” (Id.) 2
It is not clear from the face of the Complaint that Plaintiff did not fully exhaust his
administrative remedies before commencing this Action. Plaintiff asserts that “CORC failed to
render a decision on both grievances within 30 days,” (Compl. ¶ 22), but his Complaint is silent
as to whether CORC issued a decision before March 11, 2016, when Plaintiff filed the Complaint
in this Action. Indeed, Plaintiff specifically pleads that he “exhausted his avenue of
administrative review for this grievance.” (Id. ¶ 49.) Thus, the Court cannot find that
“nonexhaustion is clear from the face of the complaint.” Lovick, 2014 WL 3778184, at *4
(internal quotation marks omitted).
In any event, Plaintiff’s failure to exhaust his administrative remedies before filing the
Complaint “is merely a temporary procedural flaw,” Wagnoon v. Johnson, No. 02-CV-10282,
2004 WL 583764, at *3 (S.D.N.Y. Mar. 23, 2004) (dismissing the plaintiff’s case without
prejudice so that he could reinstitute suit), and even were the Court to dismiss Plaintiff’s
Complaint on this ground, such dismissal would be without prejudice, see Berry v. Kerik, 366
F.3d 85, 87 (2d Cir. 2004) (noting that where a plaintiff has failed to exhaust administrative
remedies, dismissal without prejudice is proper because the plaintiff can simply replead after he
exhausts); McCoy, 255 F. Supp. 2d at 252 (“A dismissal for failure to exhaust is usually without

2

While Defendants’ letter informs the Court of the rendering of a decision on a single
grievance, Defendants acknowledge that as of the date of Plaintiff’s Complaint, he had two
grievances pending before CORC. (See Defs.’ Mem. 3–4 (“Plaintiff ultimately appealed two
grievances to [CORC]: grievance number GH-81011-15, regarding denial of attendance at
religious events, and GH-81171-15, regarding denial of religious practice as a Shi’ite
Muslim.”).) It is unclear from Defendants’ letter which of the two grievances is now
administratively exhausted.
12

prejudice . . . because failure to exhaust is ordinarily a ‘temporary, curable, procedural flaw.’”
(quoting Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999))). Plaintiff would only need to file
an Amended Complaint to reinstitute this Action. Thus, the Court proceeds to the merits of
Plaintiff’s claims. 3
2. Personal Involvement of Commissioner Annucci and Superintendent Griffin
Defendants contend that “this case should be dismissed against [D]efendants Annucci and
Griffin because Plaintiff has not alleged that they were personally involved in depriving Plaintiff
of a protected right.” (Defs.’ Mem. 7.)
“It is well settled that, in order to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013); see also Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (“[P]ersonal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
§ 1983.” (internal quotation marks omitted)). Relatedly, “[i]n an action under 42 U.S.C. § 1983,
defendants cannot be held liable under a theory of respondeat superior,” Quezada v. Roy, No. 14CV-4056, 2015 WL 5547277, at *7 (S.D.N.Y. Sept. 18, 2015) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978)); in other words, “[b]ecause vicarious liability is inapplicable to
. . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the [law],” Iqbal, 556 U.S. at 676; see also
Fortunato v. Bernstein, No. 12-CV-1630, 2015 WL 5813376, at *6 (S.D.N.Y. Sept. 1, 2015)
(“Supervisory status, without more, is not sufficient to subject a defendant to [§] 1983 liability.”
(internal quotation marks omitted)).

3

Should the case proceed to summary judgment, the Court may revisit this issue.
13

The Second Circuit has set forth five ways in which a plaintiff may plead the personal
involvement of a defendant:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Grullon, 720 F.3d at 139 (italics omitted) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)). However, the Second Circuit has recognized that the “[Iqbal] decision . . . may have
heightened the requirements for showing a supervisor’s personal involvement with respect to
certain constitutional violations,” id., but has “thus far declined to resolve the question,”
Golodner v. City of New London, No. 14-CV-173, 2015 WL 1471770, at *7 (D. Conn. Mar. 31,
2015); see also Fortunato, 2015 WL 5813376, at *6 (noting that “the continuing validity of the
Colon factors has been called into question by the Supreme Court’s ruling in Iqbal”). Thus,
courts in the Second Circuit are divided as to whether the five categories announced in Colon
may still be used as bases for liability under § 1983. Compare, e.g., Hollins v. City of New York,
No. 10-CV-1650, 2014 WL 836950, at *13 (S.D.N.Y. Mar. 3, 2014) (holding that only the first
and part of the third categories in Colon survive Iqbal), and Bellamy v. Mount Vernon Hosp., No.
07-CV-1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) (same), aff’d, 387 F. App’x 55
(2d Cir. 2010), with Marom v. City of New York, No. 15-CV-2017, 2016 WL 916424, at *15
(S.D.N.Y. Mar. 7, 2016) (“The holding in Iqbal does not stand for the proposition that a
supervisor can never be found personally liable for a constitutional deprivation on a showing that
he was ‘grossly negligent’ or ‘deliberately indifferent.’”), partial reconsideration granted, 2016
WL 5900217 (S.D.N.Y. July 29, 2016), and Sash v. United States, 674 F. Supp. 2d 531, 544
14

(S.D.N.Y. 2009) (“Where the constitutional claim does not require a showing of discriminatory
intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the
Fourth and Eighth Amendments, the personal involvement analysis set forth in Colon v.
Coughlin may still apply.”), and Delgado v. Bezio, No. 09-CV-6899, 2011 WL 1842294, at *9
(S.D.N.Y. May 9, 2011) (holding that if “the claim does not require a showing of discriminatory
intent, the Colon analysis should still apply, insofar as it is consistent with the particular
constitutional provision alleged to have been violated” (internal quotation marks omitted)).
Some courts have simply concluded that, in the absence of Second Circuit precedent suggesting
otherwise, they will continue to apply the Colon factors. See, e.g., Demeo v. Koenigsmann, No.
11-CV-7099, 2017 WL 2937619, at *7 n.10 (S.D.N.Y. July 7, 2017) (“Although the Second
Circuit had acknowledged that it was an open issue whether all of the types of personal
involvement outlined above (the ‘Colon factors’) survive Iqbal, it appears that they do, as
demonstrated by . . . recent Second Circuit opinions . . . that continue to cite the Colon factors.”
(third italics added) (citations omitted)); Tolliver v. Skinner, No. 12-CV-971, 2017 WL 1017649,
at *4 (S.D.N.Y. Mar. 13, 2017) (“[A] plaintiff may establish such personal involvement by
making any one of five showings (the ‘Colon factors’), including by showing that the defendant,
after being informed of the violation through a report or appeal, failed to remedy the wrong.
This remains the law in [the Second] Circuit, absent a Circuit decision otherwise.” (citation and
internal quotation marks omitted)). On balance, “[t]he majority of the district courts . . . have
held that, absent any contrary directive from the Second Circuit, all five Colon factors survive
where the constitutional violation at issue does not require a showing of discriminatory intent.”
El-Hanafi v. United States, No. 13-CV-2072, 2015 WL 72804, at *13 (S.D.N.Y. Jan. 6, 2015)
(alteration and internal quotation marks omitted). This Court has already expressed its

15

agreement with those cases holding that all five categories under Colon are still valid unless and
until the Second Circuit holds otherwise, see Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL
365493, at *4–5 (S.D.N.Y. Jan. 24, 2017), and so it will do so here.
As Defendants note, the sole allegations with respect to Commissioner Annucci and
Superintendent Griffin are that they each “deprived Plaintiff of his federally protected rights,”
(Compl. ¶¶ 4, 8), that “Superintendent Griffin failed to render a decision on . . . Plaintiff[’s] . . .
grievance within 21 days,” (id. ¶ 17), that Commissioner Annucci “refused to reply to
Plaintiff[’s] . . . letter” regarding the denial of attendance at religious events, (id. ¶ 36), and that
both Defendants “have allowed the [u]nconstitutional DOCCS policy of refusing to treat Shia
Muslim inmates equal to other religious sub[-]groups that DOCCS currently recognize[s] to
continue,” (id. ¶ 50).
“[I]t is well-established that an allegation that an official ignored a prisoner’s letter of
protest and request for an investigation of allegations made therein is insufficient to hold that
official liable for the alleged violations.” Greenwaldt v. Coughlin, No. 93-CV-6551, 1995 WL
232736, at *4 (S.D.N.Y. Apr. 19, 1995); accord Rivera v. Bloomberg, Nos. 11-CV-629, 11-CV4325, 2012 WL 3655830, at *6 (S.D.N.Y. Aug. 27, 2012) (“Even if the [c]omplaints could be
read to suggest that Commissioner Schriro failed to act, a prisoner’s allegation that a supervisory
official failed to respond to a grievance is insufficient to establish that the official exhibited
deliberate indifference by failing to act on information indicating that the violation was
occurring.” (alterations and internal quotation marks omitted)); Ward v. LeClaire, No. 07-CV6145, 2008 WL 3851831, at *3 (W.D.N.Y. Aug. 14, 2008) (“Although [the] [p]laintiff further
alleges that he sent [the defendant] letters about lack of enforcement of [a facility] policy and
that [certain defendants] did not respond to his many written complaints, the [c]ourt finds that

16

such allegations, accepted as true, do not constitute personal involvement for purposes of § 1983
liability.” (citations omitted)); Rivera v. Goord, 119 F. Supp. 2d 327, 344 (S.D.N.Y. 2000)
(finding allegations that an inmate wrote to prison officials and was ignored insufficient to hold
those officials liable under § 1983); see also Woodward v. Perez, No. 12-CV-8671, 2014 WL
4276416, at *8 (S.D.N.Y. Aug. 29, 2014) (“It is well-established that a supervisory defendant’s
receipt of a single letter identifying an alleged wrong is insufficient for liability under [§]
1983.”); Scarbrough v. Evans, No. 09-CV-850, 2010 WL 3730897, at *9 (N.D.N.Y. Aug. 10,
2010) (“The allegation that the superintendent ignored [the] plaintiff’s letter, even if true, is
nonetheless insufficient without more to establish the requisite personal involvement on his part
in the constitutional violations alleged.”); Watson v. McGinnis, 964 F. Supp. 127, 130 (S.D.N.Y.
1997) (“The law is clear that allegations that an official ignored a prisoner’s letter are insufficient
to establish liability.” (citations omitted)). Indeed, “if mere receipt of a letter or similar
complaint were enough, without more, to constitute personal involvement, it would result in
liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does
not impose respondeat superior liability.” Walker v. Pataro, No. 99-CV-4607, 2002 WL
664040, at *12 (S.D.N.Y. Apr. 23, 2002) (report and recommendation) (italics omitted); see also
Dean v. Lantz, No. 08-CV-749, 2009 WL 2151173, at *6 (D. Conn. Jul. 17, 2009) (“[T]he fact
that a supervisory official ignored a prisoner’s letter of protest or referred the letter to other
officials for response does not establish the requisite personal involvement of the supervisory
official.”); Thomas v. Coombe, No. 95-CV-10342, 1998 WL 391143, at *6 (S.D.N.Y. July 13,

17

1998) (finding that ignoring a letter from an inmate is insufficient to establish personal
involvement). 4
Nor are Defendants liable as a result of the supervisory nature of their positions. “[M]ere
‘linkage in the prison chain of command’ is insufficient to implicate a state commissioner of
corrections or a prison superintendent in a § 1983 claim.” Richardson v. Goord, 347 F.3d 431,
435 (2d Cir. 2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)); see also Colon,
58 F.3d at 874 (“The bare fact that [the defendant] occupies a high position in the New York
prison hierarchy is insufficient to sustain [a plaintiff’s] claim.”).
Here, Plaintiff alleges that Commissioner Annucci and Superintendent Griffin did not
correct a policy of unequal treatment of inmates based on their religion, but he does not claim
that these Defendants participated in the alleged deprivation. Plaintiff’s theory of liability
appears to be grounded in the mere fact that Defendants were in charge of the prison. Such
conclusory allegations are insufficient to sustain a claim. See Alsaifullah, 2013 WL 3972514, at
4

“Courts in [the Second] Circuit are divided, however, regarding whether a supervisor
who reviews and ultimately denies a grievance can be considered personally involved in the
unconstitutional act underlying the grievance.” Garcia v. Watts, No. 08-CV-7778, 2009 WL
2777085, at *15 (S.D.N.Y. Sept. 1, 2009) (collecting cases). “Some courts have attempted to
harmonize this conflict by applying the same standard to both letters and grievances, i.e. finding
personal involvement only when the supervisor’s response is detailed and specific.” Id. at 16
(italics omitted) (collecting cases). Still “[o]ther courts in [the Second] Circuit have applied a
different standard and found personal involvement only when the grievance alleges an ongoing
constitutional violation that the supervisory official who reviews the grievance can remedy
directly.” Id. (internal quotation marks omitted) (collecting cases).
In the instant case, there is no allegation that Superintendent Griffin actually reviewed
Plaintiff’s grievance and Plaintiff does not allege that he sent any letters to Superintendent
Griffin directly. (See Compl. ¶ 17 (“Superintendent Griffin failed to render a decision on . . .
Plaintiff[’s] . . . grievance within 21 days.”).) As to Commissioner Annucci, Plaintiff’s letter to
him encloses a copy of Plaintiff’s grievance and “request[s] that [the Commissioner’s] officer
direct the Inmate Grievance Supervisor to log and acknowledge this grievance as well as process
the grievance in a timely fashion.” (Compl. Ex. H.) Plaintiff does not request that
Commissioner Annucci review the grievance or remedy the alleged violation. Indeed, Plaintiff’s
grievance was eventually processed as requested.
18

*17 (“[The p]laintiff fails to allege that [the superintendent] was aware of such alleged policy
and, accordingly, [the p]laintiff’s conclusory allegations are insufficient to demonstrate the
personal involvement of [the superintendent].”); Miner v. Goord, 646 F. Supp. 2d 319, 326
(N.D.N.Y. 2009) (dismissing the plaintiff’s “claims that [the superintendent] created a policy
which permitted unconstitutional practices to occur” because “[t]hese conclusory allegations are
insufficient to show the personal involvement of [the superintendent]”). Accordingly, Plaintiff’s
claims against Commissioner Annucci and Superintendent Griffin are dismissed. 5
3. Denial of Attendance at Religious Events
Defendants contend that the failure to allow Plaintiff to attend two Shi’ite holy day events
does “not represent a substantial burden on Plaintiff’s free exercise of religion.” (Defs.’ Mem.
10.)
“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,
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”).

5

Defendants do not move to dismiss Defendants Morris and Collado based on their lack
of personal involvement. (See generally Defs.’ Mem.) However, should Plaintiff choose to
amend his pleadings, he should be careful to allege the personal involvement of all Defendants in
the purported violations.
19

Accordingly, a prisoner’s free exercise claims are “judged under a reasonableness test less
restrictive than that 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 v. Chaboty, No. 09-CV-9199, 2015 WL 1439348,
at *9 (S.D.N.Y. Mar. 30, 2015) (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)). 6 In 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)

6

The Second Circuit recently explained that “[i]t has not been decided in [the Second]
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 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 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).
20

(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, the 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) (alteration and internal quotation marks omitted).
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).
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 thus turns to whether Plaintiff has adequately alleged that
his ability to exercise his religious beliefs was substantially burdened by Defendants’ conduct.
“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.”
Lopez v. Cipolini, 136 F. Supp. 3d 570, 588 (S.D.N.Y. 2015); see also Jean-Laurent v. Los, No.
12-CV-132, 2015 WL 1015383, at *6 (W.D.N.Y. Mar. 9, 2015) (noting “[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. 13CV-8332, 2014 WL 5324326, at *7 (S.D.N.Y. Oct. 20, 2014) (“Courts in [the Second] Circuit,
however, have held that the conduct [the plaintiff] challenges—the denial of two religious
services—does not substantially burden an inmate’s right to religious observation.”); Shapiro,
2014 WL 1276479, at *11 (“[N]ot permitting a prisoner to attend two religious services is a de

21

minimis, or insubstantial, burden on an inmate’s ability to freely exercise his religion.” (italics
and internal quotation marks omitted)). Here, however, Plaintiff repeatedly refers to Ghadir
Khum and Mubahila as “Holy Days,” and specifically alleges that the events are “unique to
Shi’ism.” (Compl. ¶ 32; see also id. ¶¶ 35, 37.) These allegations are made in conjunction with
claims that Plaintiff suffered from additional deprivations, including the denial of a Shia Muslim
Chaplain to lead Juma’ah service, which he specifically avers is “fundamental to the practice of
his religion,” and the inability to hold fundraisers to purchase Shia educational material. (See id.
¶¶ 29, 41–42.) 7
Thus, construing Plaintiff’s Complaint liberally and drawing all reasonable inferences
from the factual allegations in Plaintiff’s favor, the Court finds that Plaintiff has adequately
pleaded that the religious events were “‘central or important’ to [his] faith,” Rossi, 2015 WL
769551, at *8 (quoting Ford, 352 F.3d at 593–94); see also Smith, 2012 WL 929848, at *8 (“At
this stage, the Court finds that plaintiff has alleged sufficient facts to establish that missing three
consecutive Jum[a]’ah services while housed in keeplock substantially burdens his right to attend
congregate religious services.”). In conjunction, these allegations sufficiently state a plausible
claim for a First Amendment violation. Accordingly, the Court denies Defendants’ Motion To
Dismiss on this basis. 8
7

Plaintiff further avers that without a Shia leader, “the congregate prayer is invalid,”
suggesting that the practice of having a Shia leader is central to his religion. (Compl. ¶ 30.)
Additionally, while the Supreme Court has noted that “Jum[a]’ah is commanded by the
Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or
afternoon prayer,” O’Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987), the Court notes that
the test is subjective and requires the plaintiff to allege that the religious event or practice is
central or important to his practice of his faith. See Rossi, 2015 WL 769551, at *7 (“[The
plaintiff] must show that it burdens a religious practice that is central or important to his practice
of religion.” (internal quotation marks omitted)).
8

As Defendants identify, Plaintiff filed grievances related to the denial of attendance at
the religious events of Ghadir Khum and Mubahila. (See Compl. ¶ 14 (“On October 13, 2015,
22

III. Conclusion
For the foregoing reasons, Defendants' Motion To Dismiss is granted as to all claims
against Commissioner Annucci and Superintendent Griffin and denied as to Plaintiff's claims
regarding his denial of attendance at Ghadir Khum and Mubahila as against Morris and Collado.
In light of Plaintiff's prose status, and because this is the first adjudication of Plaintiff's
claims on the merits, those claims that are dismissed are dismissed without prejudice. If Plaintiff
wishes to file an Amended Complaint alleging additional facts and otherwise addressing the
deficiencies identified above, Plaintiff must do so within 30 days of the date of this Opinion &
Order. The failure to do so may result in the dismissal of Plaintiff's claims with prejudice. If
Plaintiff files no Amended Complaint, the Court will assume Plaintiff intends only to proceed
with the claims regarding failure to provide equal accommodations to Shi'ite Muslims and state
law claims against Defendants Morris and Collado.
The Clerk of Court is respectfully requested to terminate the pending Motion, (see Dkt.
No. 23), and mail a copy of this Opinion & Order to Plaintiff at the address listed on the docket.
SO ORDERED.
Dated:

September "3:__, 2017
White Plains, New York

OGE

Plaintiff . . . filed a grievance regarding his being denied his right to attend the Shi'ite religious
event[s] of Ghadir Khum . .. and Mubahila.").) While Plaintiff's letters to Collado and
Commissioner Annucci referenced the Muslim holy event of Ashura, (see id. iii! 35, 37-38),
Plaintiff does not allege that he filed a grievance in connection with his being denied attendance
at Ashura. Accordingly, any claims with respect to Plaintiff's attendance at Ashura have not been
administratively exhausted.

23