Corbett v. Annucci et al

Filing 33

OPINION & ORDER re: 27 MOTION to Dismiss the First Amended Complaint [Dkt. No. 19] filed by Thomas Griffin, III, Cheryl Morris, Anthony Annucci. For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part a nd DENIED in part. Plaintiff's Fourteenth Amendment equal protection claim is dismissed in its entirety without prejudice. Plaintiffs First Amendment claims against all Defendants in their official capacities are similarly dismissed without p rejudice, as are his First Amendment claims against Defendant Morris and Defendant Griffin in their individual capacities. Finally, Plaintiff's claims for monetary damages against all Defendants in their official capacities are dismissed with prejudice. Plaintiff shall have until March 15, 2018 to amend his complaint in accordance with this Court's decision. If Plaintiff elects to file a second amended complaint, Defendant shall have until 30 days from the date of Plaintiffs filing to move or file responsive pleadings. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 27. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 2/13/2018) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Daniel Corbett,
Plaintiff,
-againstNo. 16-cv-4492 (NSR)
OPINION & ORDER

Anthony Annucci, as acting Commissioner of the New
York State Department of Corrections and Community
Supervision; Cheryl Morris, in her individual capacity
and as Director ofMinisterial, Family and Volunteer
Services; Thomas Griffin, III; in his individual
capacity and as Superintendent ofGreen Haven
Correctional Facility; D.O.C.C.S.
Defendants.
NELSON S. ROMAN, United States District Judge

Plaintiff Daniel Corbett ("Plaintiff'), who is currently incarcerated at Green Haven
Correctional Facility, commenced this prose action under 42 U.S.C. § 1983 on June 14, 2016.
(ECF No. 2.) Plaintiff alleges that various employees of the New York State Depaitment of
Corrections and Community Supervision ("DOCCS") violated his rights under the First
Amendment, Fourteenth Amendment, and New York State law. (First Am. Comp!. ("FAC"),
ECF No. 19.) Currently before the Coutt is Defendants' Motion to Dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(l) and 12(b)(6). (ECF No. 27.) For the
following reasons, Defendants' Motion is GRANTED in part and DENIED in patt.

1

SDC SDi~'l
JCUMENT
.ECTRONICALLY FILED

I,
1:

BACKGROUND
I.

Factual Allegations
The following facts are derived from the Complaint and the documents appended thereto,

and are assumed to be true for the purposes of this motion.
Plaintiff, a Shi’ite Muslim incarcerated at Green Haven Correctional Facility, filed a
grievance with the Inmate Grievance Resolution Committee (“IGRC”) on October 29, 2015.
(FAC at 3–4.) In his grievance, Plaintiff claimed he was being denied “Halal” meals that
conform to the strict dietary requirements of his religion. (Id.) Plaintiff further claimed that, as a
result, he was “unjustly compelled” to violate his religious beliefs and eat prohibited food. (Id.)
When the IGRC failed to give a timely response to his grievance, Plaintiff “informed the
grievance office in writing that [he] was exercising his option of passing the grievance” to the
facility’s Superintendent, Defendant Thomas Griffin, III (“Defendant Griffin”). (Id. at 4.) When
Plaintiff once again did not receive a timely response, he requested that his grievance be “passed
forward” to the Central Office Review Committee (“CORC”). (Id.)
Plaintiff filed a second grievance on December 08, 2015, reiterating his concern that he
was being denied Halal food. (Id.) After receiving no response, Plaintiff requested in writing that
his grievance be reviewed by the Superintendent, Defendant Griffin, on February 1, 2016. (Id.)
When Defendant Griffin did not address his grievance, Plaintiff again requested that his
grievance be reviewed by CORC. (Id.) Finally, on June 14, 2016, Plaintiff received a letter from
Defendant Griffin, denying his grievance and noting that “[m]eals are prepared in accordance
with [the] statewide menu.” (Id.)
Plaintiff filed the instant action against Defendants on June 14, 2016. On January 24,
2017, Plaintiff filed a First Amended Complaint (“FAC”), seeking declaratory and injunctive

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relief, compensatory damages in the amount of $10,000, and costs, interests, and reasonable
attorney’s fees for violations of his rights under the First and Fourteenth Amendments of the
United States Constitution and New York State law. (Id. at 5.) Defendants filed the instant
Motion to Dismiss the FAC on June 14, 2017. (ECF No. 27.)
DISCUSSION
I. Legal Standards
Under Rule 12(b)(6), the inquiry for motions to dismiss is whether the complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. The Court must take all material
factual allegations as true and draw reasonable inferences in the non-moving party’s favor, but
the Court is “‘not bound to accept as true a legal conclusion couched as a factual allegation,’ ” or
to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of
action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In determining whether a complaint states a plausible claim for relief, a district court
must consider the context and “draw on its judicial experience and common sense.” Id. at 679.
A claim is facially plausible when the factual content pleaded allows a court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

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As to a motion brought under Rule 12(b)(1), “[a] case is properly dismissed for lack of
subject matter jurisdiction . . . when the district court lacks the statutory or constitutional power
to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).1
“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all
uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in
favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc.,
752 F.3d 239, 243 (2d Cir. 2014). “[T]he court may resolve the disputed jurisdictional fact
issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold
an evidentiary hearing.” Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247,
253 (2d Cir. 2000). Though a court “may consider affidavits and other materials beyond the
pleadings to resolve the jurisdictional issue, [it] may not rely on conclusory or hearsay
statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110
(2d Cir. 2004).
Finally, “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].’ ”
Askew v. Lindsey, No. 15-CV-7496 (KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016)
(alterations in original) (citing Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)). Yet,
“‘the liberal treatment afforded to pro se litigants does not exempt a pro se party from

The only jurisdictional issue presently before the court is the applicability of New York
Correction Law § 24. Rule 12(b)(1) is not the proper vehicle for any other argument raised by
Defendants. Indeed, failure to exhaust and qualified immunity are both affirmative defenses—
rather than complete jurisdictional bars—that are properly raised under Rule 12(b)(6). See
McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004) (“We conclude that a qualified immunity
defense can be presented in a Rule 12(b)(6) motion.”); Woodford v. Ngo, 548 U.S. 81, 101
(2006) (recognizing that “the PLRA exhaustion requirement is not jurisdictional.”)
1

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compliance with relevant rules of procedural and substantive law.’” Id. (quoting Bell v. Jendell,
980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)).
II. Analysis
Construed liberally, Plaintiff’s Complaint asserts claims for violations of the Free Exercise
Clause First Amendment, the Equal Protection Clause of the Fourteenth Amendment, Article I,
section 3 of the New York State Constitution, and § 610 of the New York Correction Law.
Defendants contend that Plaintiff’s claims should be dismissed because (1) Plaintiff has failed to
plausibly allege any violation of his constitutional rights; (2) Plaintiff failed to exhaust his
administrative remedies; (3) the FAC contains no factual allegations that any Defendant was
personally involved in the alleged constitutional violations; (4) even if Defendants were
involved, they are entitled to qualified immunity; and (5) Plaintiff’s state law claims are barred
by § 24 of the New York Correction Law. The Court now considers each of Defendant’s
arguments in turn.
A. Plaintiff’s Allegations
The Court first addresses Defendant’s contention that Plaintiff has failed to plausibly
allege claims under the First and Fourteenth Amendments. For the reasons that follow, this Court
finds that Plaintiff has adequately plead a First Amendment violation, but has not plausibly
alleged a violation of the Equal Protection Clause of the Fourteenth Amendment.
1. First Amendment claim
“The Free Exercise Clause of the First Amendment is an ‘unflinching pledge to allow our
citizenry to explore . . . religious beliefs in accordance with the dictates of their conscience.’”
Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (quoting Patrick v. LeFevre, 745 F.2d 153,
157 (2d Cir. 1984)). “Prisoners have long been understood to retain some measure of the

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constitutional protection afforded by the First Amendment’s Free Exercise Clause.” Ford v.
McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). However, the Second Circuit has acknowledged
that, “although prisoners do not abandon their constitutional rights at the prison door, lawful
incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal system.” Saluhuddin v. Goord,
467 F.3d 263, 274 (2d Cir. 2006) (internal quotation marks and citations omitted). Accordingly,
the First Amendment protection afforded to inmates must be balanced with “the interests of
prison official charged with complex duties arising from administration of the penal system.”
Ford, 352 F.3d at 588.
To establish a Free Exercise claim, an inmate plaintiff must typically plead that a
sincerely held religious belief was substantially burdened by conduct that was not reasonably
related to a legitimate penological interest. Turner v. Sidorowicz, No. 12-CV-7048 (NSR), 2016
WL 3938344, at *5 (S.D.N.Y. July 18, 2016); Holland v. Goord, 758 F.3d 215, 220–23 (2d Cir.
2014). The Second Circuit, however, has not decided whether the substantial burden standard
remains viable following the Supreme Court’s suggestion in Employment Division v. Smith, 494
U.S. 872, 887 (1990), that such a test “embroils courts in the unacceptable business of
evaluating the relative merits of differing religious claims.” Holland, 758 F.3d at 220 (internal
quotation marks omitted). However, this Court need not address the issue here: even assuming
the continuing viability of the substantial burden test, Plaintiff has plausibly alleged that his First
Amendment rights were violated. As the Second Circuit has recognized, “courts have generally
found that to deny prison inmates the provision of food that satisfies the dictates of their faith
does unconstitutionally burden their free exercise rights.” Id. (internal quotations marks omitted).
Indeed, “[t]his principle was established in our [C]ircuit at least as early as 1975.” McEachin v.

6

McGuinnis, 357 F.3d 197, 203 (2d Cir. 2004) (citing Ford , 352 F.3d at 597). Plaintiff’s present
allegations fall squarely within this defined right. In his October grievance,2 Plaintiff clearly
states that he is “being unjustly compelled to violate his religion due to the religiously unlawful
food that [he] [is] forced to eat.” (Compl. at 11.) As such, Plaintiff has asserted a plausible claim
for violations of his First Amendment right to free exercise of religion.
2. Fourteenth Amendment claim
The Court now considers whether Plaintiff has stated a claim under the Equal Protection
Clause of the Fourteenth Amendment. The Fourteenth Amendment to the United States
Constitution declares that “[n]o State shall . . . deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause is
essentially a direction that all persons similarly situated should be treated alike.” Brown v. City of
Oneonta, 221 F.3d 329, 337 (2d Cir. 2000) (internal quotations marks omitted) (quoting City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)).
There are several ways a plaintiff may plead an equal protection violation. Id. First and
foremost, “[a] plaintiff could point to a law or policy that expressly classifies persons on [an
improper basis].” Id. Alternatively, a plaintiff could identify a facially neutral law or policy that
“has been applied in an intentionally discriminatory manner” or that “has an adverse effect and .
. . was motivated by discriminatory animus.” Id.

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While a court may not typically look beyond the four corners of the complaint in considering a
motion to dismiss, “[a] complaint ‘is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.’” Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016) (quoting Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir. 2002)). As Plaintiff attached his grievances to the Complaint, this
Court may properly consider their contents at this juncture.
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Here, Plaintiff fails to plead adequate facts to make any such showing. Plaintiff has not
alleged the existence of a statute or policy that expressly classifies inmates based on their
religious beliefs, nor does Plaintiff offer any allegations regarding intentional discrimination or
disparate effect or treatment. In fact, the only comparator Plaintiff provides is a passing reference
to “Jewish [inmates] and other DOCCS-recognized religious groups.” (Compl. at 5.) However,
Plaintiff fails to describe how the treatment of those groups differs from the treatment provided
to Plaintiff. Without such allegations, Plaintiff fails to state a claim for an equal protection
violation. Accordingly, Plaintiff’s equal protection claim is dismissed without prejudice.
B. Exhaustion
Defendants additionally contend that Plaintiff’s Fourteenth Amendment claim should be
dismissed for failure to exhaust administrative remedies. This Court disagrees and finds that
Plaintiff has adequately exhausted all available administrative remedies for his claims.3
Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought
with respect to prison conditions under [42 U.S.C. § 1983] 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). This exhaustion requirement
“applies ‘to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.’” Kearney v.

Although Plaintiff’s equal protection claim was dismissed due to inadequate pleadings, the
Court nevertheless considers Defendant’s exhaustion arguments because the dismissal was
without prejudice. Given that his claim would not be barred on exhaustion grounds, Plaintiff is
granted leave to replead the alleged equal protection violation. See Barnes v. United States, 204
F. App’x 918, 919 (2d Cir.2006) (summ. order) (recognizing that a pro se complaint “should not
be dismissed without granting leave to replead at least once when [a liberal] reading gives any
indication that a valid claim might be stated.” (internal quotation marks omitted)).
3

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Gebo, No. 17-218-PR, 2017 5256820, at *1 (2d Cir. Nov. 13, 2017) (summ. order) (quoting
Porter v. Nussle, 534 U.S. 516, 532, (2002)).
Exhausting all remedies “‘means using all steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits).’” Washington v. Chaboty, No.
09-CV-9199 (PGG), 2015 WL 1439348, at *6 (S.D.N.Y. Mar. 30, 2015) (alteration in original)
(quoting Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)). “[B]ecause ‘it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion[,]” courts must
“look at the state prison procedures and the prisoner’s grievance to determine whether the
prisoner has complied with those procedures.’” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir.
2009) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).
A person detained or incarcerated at a DOCCS facility must exhaust all steps of the Inmate
Grievance Resolution (“IGR”) Program (“IGRP”). See Robinson v. Henschel, No. 10-CV-6212,
2014 WL 1257287, at *10 (S.D.N.Y. Mar. 26, 2014). The IGRP provides a three-tiered process
for adjudicating inmate complaints: (1) the prisoner files a grievance with the IGR committee
(“IGRC”), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of
the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the
Central Office Review Committee (“CORC”). See Espinal, 558 F.3d at 125; see also 7 N.Y.
Comp. Codes R. & Regs. § 701.5.
In the present case, Defendants argue that Plaintiff failed to exhaust the administrative
remedies for his Fourteenth Amendment equal protection claim. Specifically, Defendants
contend that although Plaintiff now asserts he is being treated differently than similarly-situated
Jewish inmates based on his Islamic faith, neither of his previous grievances raised that issue.4

4

See supra note 2.
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Accordingly, Defendants maintain that “[w]hile Plaintiff’s grievances may have put prison
officials on notice of his claim that denying him a Halal diet may violate his religious rights, the
grievances did not provide notice of Plaintiff’s complaint that he was being unlawfully
discriminated against as compared to Jewish inmates or other DOCCS-recognized religious
groups.” (Defs.’ Mem. of Law. in Supp. Mot. to Dismiss (“Defs.’ Mot.”) at 19, ECF No. 28.)
This Court is unpersuaded by Defendant’s argument and finds that Plaintiff has
sufficiently exhausted his claims. “The PLRA’s exhaustion requirement is designed to afford
corrections officials time and opportunity to address complaints internally before allowing the
initiation of a federal case.” Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (internal
quotation marks and citations omitted). As such, “a grievance suffices if it alerts the prison to the
nature of the wrong for which redress is sought.” Id. A grievant, therefore, “need not lay out the
facts, articulate legal theories, or demand particular relief. All the grievance need do is object
intelligibly to some asserted shortcoming.” Id.; see also Espinal, 558 F.3d at 127–28 (finding
that the Plaintiff did not need to assert the existence of a conspiracy to exhaust his conspiracy
claim; it was “sufficient that his grievance adequately described the alleged misconduct.”)
Here, Plaintiff sufficiently alerted the correctional facility that he was being denied a
Halal diet. Plaintiff was not required to articulate any particular legal theory under which he may
seek relief in federal court. Rather, Plaintiff put Defendants on notice of a potential
wrongdoing—the inaccessibility of Halal food in their facility—and provided Defendants
sufficient opportunity to investigate, evaluate, and decide whether to address his complaint.
Plaintiff has, therefore, exhausted all administrative remedies. See Johnson, 380 F.3d at 697 (“In
order to exhaust . . . inmates must provide enough information about the conduct of which they
complain to allow prison officials to take appropriate responsive measures.”).

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C. Personal Involvement
Defendants next argue that Plaintiff’s First and Fourteenth Amendment claims should be
dismissed because Plaintiff fails to adequately allege the personal involvement of any defendant
in the deprivation of his constitutional rights. Defendants’ argument, however, oversimplifies the
issues.
As a preliminary matter, Defendants conflate the distinct nature of individual- and
official-capacity suits. Suits against state officials in their official capacities “generally represent
only another way of pleading an action against an entity of which an officer is an agent.” Hafer
v. Melo, 502 U.S. 21, 25 (1991) (internal quotation marks omitted). “Personal-capacity suits, on
the other hand, seek to impose individual liability upon a government officer for actions taken
under color of state law.” Id. With these distinctions in mind, the Court now considers the
sufficiency of Plaintiff’s claims against the Defendants in their respective capacities.
1. Official-capacity claims
Plaintiff initiated this suit against all three Defendants in their official capacities.
Generally, “[b]ecause the real party in interest in an official-capacity suit is the governmental
entity and not the named official, the entity’s policy or custom must have played a part in the
violation of federal law.” Hafer, 502 U.S. at 25 (internal quotation marks omitted); see also
Brown v. City of Oneonta, New York, 235 F.3d 769, 70 n.2 (2d Cir. 2000). Here, while Plaintiff
alleges that he is personally being denied access to Halal meals, he fails to identify a broader
policy or custom that caused, or even played a role, in that deprivation. Without any such
allegations, Plaintiff fails to adequately state a claim against Defendants in their official
capacities. Accordingly, Plaintiff’s First Amendment claims against Defendant’s Annucci,
Defendant Morris, and Defendant Griffin in their official capacities are dismissed.

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2. Individual capacity claims
Plaintiff additionally asserts claims against Defendants Morris and Griffin in their
individual capacities. While Defendants Morris and Griffin enjoy a supervisory role at Green
Haven Correctional Facility, “a defendant in a §1983 action may not be held liable for damages
for constitutional violations merely because he held a high position of authority.” Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Grullon v. City of New Haven, 720 F.3d 133,
138 (2d Cir. 2013). Rather, “a plaintiff must establish a given defendant’s personal involvement
in the claimed violation in order to hold that defendant liable in his individual capacity.” Warren
v. Pataki, 823 F.3d 125, 136 (2d Cir.) (emphasis added), cert. denied sub nom. Brooks v. Pataki,
137 S. Ct. 380 (2016). As the Second Circuit has explained, the personal involvement of a
supervisory defendant may be shown by evidence that:
(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.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).5
Courts in this Circuit are “divided as to whether the five categories announced in Colon may
still be used as the bases for liability under § 1983” following the Supreme Court’s decision in
Ashcroft v. Iqbal, 129 S.Ct 1937 (2009), which “may have heightened the requirements for
showing a supervisor’s personal involvement with respect to certain constitutional violations.”
Allah v. Annucci, No. 16-CV-1841 (KMK), 2017 WL 3972517 at *6 (S.D.N.Y. Sept. 07, 2017)
(internal quotation marks and citations omitted) (collecting cases); see also Reynolds v. Barrett,
685 F.3d 193, 205 n.14 (2d Cir. 2012) (“Iqbal has of course, engendered conflict within our
Circuit about the continuing vitality of the supervisory liability test set for in Colon v. Coughlin.”
(internal citation omitted)). “Some courts have simply concluded that, in the absence of Second
Circuit precedent suggesting otherwise, they will continue to apply the Colon factors.” Allah,
2017 WL 3972517 at *6. Given the Second Circuit’s continued reference to all five Colon
factors in recent decisions, see, e.g., Shawn v. Prindle, 661 F. App’x 16 (2d Cir. 2016) (summ.
order), this Court finds such an approach prudent. Accordingly, this Court agrees that “all five
5

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With regard to Defendant Morris, Plaintiff fails to explain how she was involved in the
alleged constitutional deprivations. Indeed, the FAC is entirely devoid of any mention of
Defendant Morris beyond her name in the case caption and list of defendants. With no factual
allegations tying her to the constitutional violations at issue in this case, Defendant Morris
cannot be held personally liable. Accordingly, all claims against Defendant Morris in her
individual capacity are dismissed without prejudice.6
Plaintiff does, however, plead sufficient facts to establish Defendant Griffin’s personal
involvement with the alleged constitutional violations. Defendants contend that Superintendent
Griffin’s failure to respond to Plaintiff’s October grievance and denial of the September
grievance does not establish his personal involvement.7 This Court disagrees.
“Courts in this Circuit are divided . . . 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 (JSR), 2009 WL 2777085, at *15
(S.D.N.Y. Sept. 1, 2009) (collecting cases). Some courts have attempted to reconcile this divide
by finding personal involvement where the denied grievance alleges “‘an ongoing constitutional
violation that the supervisory official who reviews the grievance can remedy directly.’” Id.

categories under Colon are still valid unless and until the Second Circuit holds otherwise . . . .”
Allah, 2017 WL 3972517 at * 6.
6

Because Plaintiff is proceeding pro se, this Court grants Plaintiff leave to replead. If Plaintiff
chooses to amend his Complaint, the Court cautions Plaintiff to include specific factual
allegations against each named Defendant.
7

Defendants claim that Defendant Griffin did, in fact, respond to the October grievance and that
a different acting superintendent of Green Haven denied his September grievance. However, at
this early stage of the litigation, the Court must take all material factual allegations contained in
the Complaint as true. See Iqbal, 556 U.S. at 678. Such arguments, therefore, are better suited
for a summary judgment motion.
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(quoting Vega v. Artus, 610 F. Supp. 2d 185, 198 (N.D.N.Y. 2009)); see also Morgan v. Ward,
No. 14-CV-7921 (GHW), 2016 WL 427913, at *8 (S.D.N.Y. Feb. 2, 2016). Indeed, such an
approach falls squarely within the second category of personal involvement outlined in Colon,
which recognizes that a defendant is sufficiently personally involved where, after being informed
of the violation through a report or appeal, she fails to remedy the wrong. See 58 F.3d at 873.
Thus, this Court adopts the same standard and finds that Defendant Griffin’s denial of Plaintiff’s
grievance adequately establishes his personal involvement in the constitutional violations alleged
in this action.
D. Immunity
1. Qualified immunity
Having found that the Complaint sufficiently alleges his personal involvement in the
deprivation of Plaintiff’s constitutional rights, the Court must now consider whether Defendant
Griffin is nonetheless immune from liability. “The doctrine of qualified immunity gives officials
‘breathing room to make reasonable but mistaken judgments about open legal questions.’”
Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 743
(2011)). Thus, “qualified immunity shields . . . officials from suit ‘unless [1] the official violated
a statutory or constitutional right that [2] was clearly established at the time of the challenged
conduct.’” Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)). “A right is clearly established when its contours are sufficiently clear
that at the time of the challenged conduct, every reasonable official would have understood that
what we was doing violates that right.” Crawford v. Cuomo, No. 16-CV-3466, 2018 WL 542578,
at *1 (2d Cir. Jan 25, 2018) (internal quotation marks and citations omitted).
Here, there is no doubt that “[p]risoners have a right to receive diets consistent with their
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religious scruples.” Benjamin v. Coughlin, 905 F.2d 571, 579 (2d Cir. 1990) (internal quotation
marks omitted). Defendants contend, however, that Superintendent Griffin is nevertheless
entitled to qualified immunity because a reasonable official would not have necessarily
understood that denying Plaintiff’s grievance violated that right. (Def’s Mot. at 14). Although
Defendant Griffin’s actions suffice to personally involve him in the alleged constitutional
violation under Colon, as this Court has recognized, the continuing vitality of Colon has been
brought into question. Because courts in this district are divided regarding whether a supervisor
who denies a grievance is personally involved in the underlying constitutional violation,
Defendant Griffin could reasonably have been unaware that his actions were unlawful.
Therefore, to the extent that Defendant Griffin’s only personal involvement with Plaintiff’s First
Amendment deprivations is his denial of Plaintiff’s grievance, he is entitled to qualified
immunity. However, to the extent that Plaintiff can, in good faith, allege more facts that
personally involve Defendant Griffin in the purported constitutional violations, Plaintiff is
granted leave to re-plead his claim.
The Court additionally notes that Defendant Griffin is only entitled to qualified immunity in
his individual capacity. Qualified immunity is inapplicable to Plaintiff’s claims brought against
Defendant Griffin, or any other Defendants, in their official capacity. See Ying Jing Gan v. City
of New York, 996 F.2d 522, 529 (2d Cir. 1993) (“[S]ince the governmental entity itself possesses
no personal privilege of absolute or qualified immunity, those privileges are available to
governmental officials only with respect to damage claims asserted against them in their
individual capacities. They are not available to the extent that the officials are sued in their
official capacities.” (emphasis added)).
2. Eleventh Amendment immunity
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With regard to Plaintiff’s claims against Defendants Griffin, Morris, and Annucci in their
official capacity, “the Second Circuit has held that ‘[t]o the extent that a state official is sued for
damages in [her] official capacity, such a suit is deemed to be a suit against the state, and the
official is entitled to invoke the Eleventh Amendment immunity belonging to the state.’” Davis
v. Westchester Cty. Family Court, No, 16-CV-9487 (KMK), 2017 WL 4311039, at *6 (S.D.N.Y.
Sept. 26, 2017) (quoting Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). The
Eleventh Amendment generally “forbids suits against states for monetary damages.” Kirkendall
v. Univ. of Connecticut Health Ctr., 205 F.3d 1323 (2d Cir. 2000). Thus, Plaintiff’s claims for
monetary damages against Defendants in their official capacities are dismissed with prejudice.
The Eleventh Amendment, however, does not bar suits against state officials in their official
capacities for prospective injunctive or declaratory relief. See Tsirelman v. Daines, 794 F.3d 310,
313–314 (2d Cir. 2015); W. Mohegan Tribe & Nation v. Orange Cty., 395 F.3d 18, 21 (2d Cir.
2004). To determine if a suit is barred under the Eleventh Amendment, “a court need only
conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective.” Virginia Office of Protection
& Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (internal quotation marks omitted).
Here, Plaintiff is seeking access to a religiously-compliant diet during the pendency of his
incarceration. The alleged constitutional violation is therefore ongoing and Plaintiff’s requested
relief can appropriately be characterized as prospective. Accordingly, the Defendants are not
entitled to immunity from Plaintiff’s claims for prospective injunctive and declaratory relief.8

8

The Court notes that the claims against all three Defendants in their official capacities may be
duplicative of one another. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n officialcapacity suit is, in all respects other than name, to be treated as a suit against [the government]
entity. It is not a suit against the official personally, for the real party in interest is the entity.”
(internal citations omitted)); see also Payson v. Bd. of Educ. of Mount Pleasant Cottage Sch.,
16

E. State Law Claims
Finally, Defendants argue that any of Plaintiff’s claims arising under New York state law
are barred by New York Correction Law § 24. Section 24 provides that “[n]o civil action shall be
brought in any court of the state . . . against any officer or employee of [DOCCS] . . . in his or
her personal capacity, for damages arising out of any act done or the failure to perform any act
within the scope of employment and in the discharge of duties by such officer or employee.”
N.Y. Correct. Law § 24 (emphasis added). The Second Circuit has held that defendants “are
entitled to invoke the benefits of § 24” in federal court. Baker v. Coughlin, 77 F.3d 12, 16 (2d
Cir. 1996).
By its own clear language, however, § 24 applies only to suits “for damages” against
state officials. Because this Court has already dismissed all claims for monetary damages against
all Defendants, the Court need not further address the preclusive effects of New York Correction
Law § 24. See Marria v. Broaddus, 200 F. Supp. 2d 280, 301–02 (S.D.N.Y. 2002) (finding New
York Correction Law § 24 inapplicable to claims under Article 1 of the New York State
Constitution and Section 610 of the New York Correction Law where the plaintiff did not seek
monetary damages under those provisions). Any state law claims for relief other than monetary
damages, thus, remain in this action.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. Plaintiff’s Fourteenth Amendment equal protection claim is dismissed in its

USFD, no. 14-CV-9696 (JCM), 2017 WL 4221455, at *22 (S.D.N.Y. Sept. 20, 2017)
(dismissing claims against individual defendants in their official capacities as agents of the
Board of Education as duplicative of the claims asserted directly against the Board of
Education.). However, the Court reserves judgment on that issue because it was neither raised
nor briefed by Defendants.
17

entirety without prejudice. Plaintiffs First Amendment claims against all Defendants in their
official capacities are similarly dismissed without prejudice, as are his First Amendment claims
against Defendant Morris and Defendant Griffin in their individual capacities. Finally, Plaintiffs
claims for monetary damages against all Defendants in their official capacities are dismissed
with prejudice.

Plaintiff shall have until March 15, 2018 to amend his complaint in accordance with this
Court's decision. If Plaintiff elects to file a second amended complaint, Defendant shall have
until 30 days from the date of Plaintiffs filing to move or file responsive pleadings.
The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 27.

Dated:

/3-_,

February
2018
White Plains, New York

so~~

u

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