Brandon v. Royce et al

Filing 25

OPINION AND ORDER: re: 17 MOTION to Dismiss. Defendants motion to dismiss is GRANTED with respect to the RLUIPA claims and all monetary claims against defendants in their official capacities. The motion is DENIED in all other respects.Defenda nts time to file an answer to the complaint is governed by Fed. R. Civ. P. 12(a)(4).By separate order, the Court will schedule an initial conference pursuant to Fed. R. Civ. P. 16 for the purpose of setting discovery deadlines and addressing other ca se management issues.The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962).The Clerk is instructed to terminate the motion. (Doc. #17). (Signed by Judge Vincent L. Briccetti on 6/20/2017) Copies Mailed By Chambers. (js) Modified on 6/20/2017 (tn).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CHAMMA K. BRANDON,
:
Plaintiff,
:
:
v.
:
:
MARK ROYCE, LESLIE MALIN, and JOHN
:
V. WERLAU, in their official and individual
:
capacities,
:
Defendants.
:
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OPINION AND ORDER
16 CV 5552 (VB)

Briccetti, J.:
Plaintiff Chamma K. Brandon, an inmate at Sing Sing Correctional Facility (“Sing
Sing”), proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983
(“Section 1983”), the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc
et seq. (“RLUIPA”), and the First and Eighth Amendments to the United States Constitution,
alleging defendants violated his rights to free exercise of religion and freedom from cruel and
unusual punishment.
Before the Court is defendants’ motion to dismiss the complaint under Rules 12(b)(1) and
12(b)(6). (Doc. #17). For the following reasons, the motion is GRANTED IN PART and
DENIED IN PART.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
BACKGROUND
In deciding the pending motion, the Court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences in plaintiff’s favor.

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I.

Eid al-Adha Meal
In September 2015, Sing-Sing officials accepted a special events package for Muslim

inmates and their guests to attend a celebration for Eid al-Adha, a significant Muslim holiday,
scheduled to take place on September 26, 2015. Plaintiff was one of the inmates granted
permission to attend the event. However, sometime before the event, plaintiff was informed that
some of the invited guests would not be able to attend the celebration because the total number
of attendees exceeded the capacity of the event space. Plaintiff was then told that if some of the
inmates volunteered to withdraw from the event, all of the invited guests could attend. He was
told the inmates who withdrew would receive a celebratory “feed-in tray” in their cells instead.
(Compl. ¶ 18). Plaintiff volunteered, and his name was put on a list of inmates who were to
receive a feed-in tray.
On the day of the celebration, September 26, 2015, inmate cooks began preparing the
feed-in trays for delivery to those inmates who had volunteered to miss the event. However,
defendant Werlau stopped the cooks on their way to deliver the trays and ordered them to throw
out the trays, in compliance with an “updated” order for the event. (Compl. Ex. B). 1 This
updated order stated that “[n]o [f]acility [p]repared food will leave the [e]vent [a]rea.” (Id.).
On October 14, 2015, after attempts at informal resolution, plaintiff filed a grievance with
the Inmate Grievance Program (“IGP”) supervisor. The IGP supervisor received the grievance
on October 27, 2015. On October 28, 2015, the IGP supervisor denied plaintiff’s grievance as
“untimely.” (Compl. Ex. G). Plaintiff appealed that decision through the inmate grievance

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“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a
district court may consider . . . documents attached to the complaint as exhibits.” DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
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process. On March 9, 2016, the IGP Central Office Review Committee upheld the previous
decisions determining plaintiff’s grievance was untimely. (Id. Ex. K).
II.

Lighting Issue
On November 22, 2015, defendant Royce ordered the installation of “1000-watt wide-

range high intensity stadium-style light-bulbs” in plaintiff’s cell block. (Compl. ¶ 37). These
bulbs were kept on twenty-four hours a day, seven days a week, and caused plaintiff and a
number of other inmates sleep issues.
By complaints submitted between November 28 and December 11, 2015, plaintiff and
other inmates objected to the lighting, stating it prevented them from being able to sleep.
Plaintiff reported for sick call three times in the month of December, and was prescribed
Benadryl and Tylenol to treat his ailments.
On December 22, 2015, Royce ordered the maintenance department to replace the lights
in plaintiff’s cell block with lower-wattage bulbs, and the lights were replaced.
According to plaintiff, the new lights are lower in wattage but they still shine into his cell
at all times, day and night.
DISCUSSION
I.

Legal Standard
In deciding a motion to dismiss 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). Once the
question of jurisdiction is raised, the burden of establishing it rests on the party asserting
jurisdiction. See Thomson v. Gaskill, 315 U.S. 442, 446 (1942). “[F]ederal courts are courts of
limited jurisdiction and lack the power to disregard such limits as have been imposed by the
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Constitution or Congress.” Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v.
Dupont, 565 F.3d 56, 62 (2d Cir. 2009). If this Court determines at any time that it lacks subject
matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).
In deciding a motion to dismiss under Rule 12(b)(6), the Court evaluates the sufficiency
of the complaint under the “two-pronged approach” announced by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,” are not
entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss.
Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are
well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.
Because plaintiff is proceeding pro se, the Court must construe his submissions liberally
and “interpret them to raise the strongest arguments that they suggest.” Pabon v. Wright, 459
F.3d 241, 248 (2d Cir. 2006) (internal citation omitted). “Even in a pro se case, however . . .
threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal
citation omitted). Nor may the Court “invent factual allegations [plaintiff] has not pled.” Id.
II.

Free Exercise Claims
Defendants argue plaintiff has failed to state a claim for religious deprivation under the

Free Exercise clause for three reasons: (i) plaintiff failed to exhaust his administrative remedies,
(ii) any alleged religious deprivation was de minimus, and (iii) plaintiff failed to allege the
personal involvement of defendants Royce and Malin.
The Court rejects all three arguments.
A.

Failure to Exhaust Administrative Remedies

Defendants first contend that because the IGP supervisor rejected plaintiff’s grievance as
untimely, plaintiff failed to exhaust his administrative remedies and thus cannot proceed with his
religious deprivation claim.
The Court disagrees.
The Prisoner Litigation Reform Act (“PLRA”) states, “[n]o action shall be brought with
respect to prison conditions under section 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). Failure to exhaust is an
affirmative defense under the PLRA. Jones v. Bock, 549 U.S. 199, 216 (2007). “Dismissal
under Rule 12(b)(6) for failure to exhaust is thus appropriate only where nonexhaustion is
apparent from the face of the complaint.” Roland v. Smith, 907 F. Supp. 2d 385, 388 (S.D.N.Y.
2012).
“Proper exhaustion demands compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively without imposing some

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orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 101 (2006).
Thus, “‘filing an untimely or otherwise procedurally defective administrative grievance or
appeal’ does not satisfy the PLRA’s exhaustion requirement.” Harrison v. Goord, 2009 WL
1605770, at *4 (S.D.N.Y. June 9, 2009) (quoting Woodford v. Ngo, 548 U.S. at 83–84). 2 In
New York, the procedural rules governing grievances provide, “[a]n inmate must submit a
complaint to the clerk within 21 calendar days of an alleged occurrence on an inmate grievance
complaint form.” 7 N.Y.C.R.R. 701.5(a)(1).
However, only those remedies that are “available” to the prisoner may be exhausted.
Williams v. Correction Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (citing Ross v. Blake,
136 S. Ct. 1850, 1856 (2016)). Administrative remedies are considered unavailable in “three
kinds of circumstances:” (i) when “an administrative procedure is unavailable when it operates
as a simple dead end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates;” (ii) when “an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use—i.e., some mechanism exists to provide relief, but no
ordinary prisoner can navigate it;” and (iii) when “a grievance process is rendered unavailable
when prison administrators thwart inmates from taking advantage of it through machination,
misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1853–54 (2016).
Here, plaintiff claims he “filed” his grievance on October 14, 2015, eighteen days after he
was denied the Eid al-Adha meal. 3 (Compl. ¶ 24). Yet the IGP supervisor determined plaintiff’s

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Plaintiff will be provided with copies of all unpublished opinions cited in this decision.
See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
Plaintiff alleges he waited eighteen days to submit the grievance because he was
attempting to resolve the matter informally. (Compl. ¶ 27). This is in direct compliance with the
grievance system procedures. 7 N.Y.C.R.R. § 701.3(a).
3

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grievance was “untimely” because the time between “the date of the incident and the date
[plaintiff’s] complaint was received” exceeded 21 days. (Compl. Ex. G).
Accepting plaintiff’s allegations as true, plaintiff’s grievance was timely. Moreover, if it
took thirteen days for the grievance to travel from wherever plaintiff filed it on October 14, 2015,
to the prison IGP, where it was received on October 27, 2015, that was unreasonable. This delay
cut by more than half the 21 days plaintiff had to submit a grievance. A system that requires an
inmate to know to submit a grievance nearly two weeks before the deadline is “opaque” and,
“practically speaking, incapable of use.” Ross v. Blake, 136 S. Ct. at 1853-54.
At this stage of the case, and absent a more complete record, the Court cannot conclude
as a matter of law that plaintiff’s grievance was untimely. If, after discovery, defendants move
for summary judgment, the Court will reconsider the matter.
B.

Substantial Burden on Right to Religious Exercise

Defendants next argue “[t]he alleged deprivation of a single religious meal is a de
minimus burden and thus, is not actionable under the First Amendment.” (Defs.’s Br. at 7).
The Court disagrees.
“Inmates clearly retain protections afforded by the First Amendment . . . including its
directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz,
482 U.S. 342, 348 (1987) (internal citation omitted). To state a free exercise claim, plaintiff
“must show at the threshold that the disputed conduct substantially burdens his sincerely held
religious beliefs.” Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006).
An inmate’s “right to practice his religion is, however, not absolute.” Salahuddin
v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). Corrections facilities may restrict religious
exercise so long as such restrictions are “‘reasonably related to legitimate penological interests.’”

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O’Lone v. Estate of Shabazz, 482 U.S. at 349 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
Thus, even if plaintiff can establish defendants substantially burdened his right to religious
exercise, he cannot state a free exercise claim if defendants can show “the disputed official
conduct was motivated by a legitimate penological interest.” Salahuddin v. Goord, 467 F.3d at
276.
Eid al-Adha is one of two major religious observances in Islam. The Second Circuit has
held the prevention of inmates from participating in one meal for Eid al-Fitr—another significant
Muslim holiday—may substantially burden an inmate’s religious exercise in violation of the
First Amendment. Ford v. McGinnis, 352 F.3d at 593-94. Therefore, at this early stage of the
case and without prejudice to reconsidering the matter on a motion for summary judgment, the
Court declines to dismiss the complaint on the grounds that denying plaintiff one Eid al-Adha
meal is de minimus.
Accordingly, plaintiff has plausibly alleged a free exercise claim.
C.

Personal Involvement of Royce and Malin

Finally, defendants argue Royce and Malin were not personally involved in the events
giving rise to plaintiff’s free exercise claim.
The Court disagrees.
“Personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under Section 1983.” Wright v. Smith, 21 F.3d 496, 501
(2d. Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)).
“Supervisor liability under § 1983 ‘can be shown in one or more of the following ways: (1)
actual direct participation in the constitutional violation, (2) failure to remedy a wrong after
being informed through a report or appeal, (3) creation of a policy or custom that sanctioned

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conduct amounting to a constitutional violation, or allowing such a policy or custom to continue,
(4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act
on information indicating that unconstitutional acts were occurring.’” Richardson v. Goord, 347
F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003)).
Here, plaintiff alleges Royce added the updated order—and his signature appears below
it—which states, “[n]o [f]acility [p]repared food will leave the [e]vent [a]rea.” (Compl. Ex. B).
In addition, plaintiff alleges another inmate sent a letter to Malin the day after the event
“complaining about the deprivation,” but that Malin did not respond. (Compl. ¶ 22). This is
what prompted plaintiff to file a formal grievance.
Thus, at this stage of the case, plaintiff has sufficiently alleged that Royce was directly
involved in the alleged violation by issuing an order that seemingly contradicted the initial order
that would have given plaintiff the feed-in tray. Malin, for her part, failed to remedy the wrong
by, for example, ordering that plaintiff be provided with a substitute Eid al-Adha meal.
Accordingly, plaintiff has plausibly alleged Royce and Malin were personally involved
in the conduct giving rise to his claims.
III.

RLUIPA Claims
Defendants argue plaintiff’s RLUIPA claim should be dismissed.
The Court agrees.
“RLUIPA does not authorize claims for monetary damages against state officers in either

their official or individual capacities.” Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014)
(citing Washington v. Gonyea, 731 F.3d 143, 145-46 (2d Cir. 2013) (per curiam)). Instead, a
plaintiff may only seek injunctive or declaratory relief under RLUIPA. See Holland v. Goord,
758 F.3d at 224. Moreover, “[a]bsent any request for prospective relief to remedy ongoing

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violations of federal law, a declaration that the defendants violated the plaintiff’s constitutional
rights in the past is barred by the Eleventh Amendment.” Hill v. Chapdelaine, 2017 WL 62511,
at *2 (D. Conn. Jan. 5, 2017) (citing Green v. Mansour, 474 U.S. 64, 71-73 (1985)).
Here, plaintiff seeks declarations that the individual defendants’ “deliberate indifference
and gross negligence violated Plaintiff’s . . . statutory right to religious exercise under RLUIPA.”
(Compl. “Relief Requested” ¶¶ A1-3).
Because plaintiff does not seek a prospective declaration with respect to his RLUIPA
claim—and even liberally construed, his RLUIPA claim relates to one particular series of events
that led to an alleged religious deprivation on one occasion, making it unlikely to occur again—
plaintiff’s RLUIPA claim is dismissed.
IV.

Eighth Amendment Claim
Defendants argue plaintiff has not plausibly alleged an Eighth Amendment claim against

Royce.
The Court disagrees.
The Eighth Amendment requires prison conditions to be at least “humane.” Gaston v.
Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 832
(1994)). To adequately allege an Eighth Amendment violation, an inmate must satisfy objective
and subjective elements of a two-pronged test: “(1) objectively, the deprivation the inmate
suffered was ‘sufficiently serious that he was denied the minimal civilized measure of life’s
necessities,’ and (2) subjectively, the defendant official acted with ‘a sufficiently culpable state
of mind . . . such as deliberate indifference to inmate health or safety.’” Walker v. Schult, 717
F.3d 119, 125 (2d Cir. 2013) (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)).

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Regarding the objective requirement, “the inmate must show that the conditions, either
alone or in combination, pose an unreasonable risk of serious damage to his health.” Walker v.
Schult, 717 F.3d at 125 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Phelps v.
Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002)). He must allege prison officials deprived him “of
his ‘basic human needs’ such as food, clothing, medical care, and safe and sanitary living
conditions.” Id. (quoting Rhodes v. Chapman, 452 U.S. at 347). When a plaintiff seeks to
combine individual deprivations, the sum equates a conditions of confinement claim only if the
composite conditions “have a mutually enforcing effect that produces the deprivation of a single,
identifiable human need.” Wilson v. Seiter, 501 U.S. 294, 304 (1991) (stating that holding
prisoners in cold cells without blankets may constitute a violation).
With respect to the subjective requirement:
[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference. This “deliberate
indifference” element is equivalent to the familiar standard of “recklessness” as
used in criminal law.
Phelps v. Kapnolas, 308 F.3d 180, 185-86 (2d Cir. 2002) (citation omitted).
Here, first, plaintiff has plausibly alleged that the installation of 1000-watt lightbulbs in
his cell block caused plaintiff serious health problems. Specifically, he alleges he suffered from
“inability to sleep, severe migraines, dizziness, among other ailments,” including “extreme
fatigue and hallucinat[ions] [of] ‘white and black spots.’” (Compl ¶¶ 40, 42).
Second, the documents attached to plaintiff’s complaint show Royce knew of that harm
and yet did not remedy the situation. In particular, by letter dated December 3, 2015, addressed
to Royce, one inmate wrote, “the streetlights in front of their locking location . . . are bright and
this is causing them sleep deprivation.” (Compl. Ex. L at 30). Yet, according to plaintiff’s
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complaint, Royce did not order the removal of the lights until December 22, 2015. Therefore,
liberally construed, plaintiff’s complaint alleges Royce subjectively knew about the risk to
plaintiff’s health and showed deliberate indifference by not removing the lights sooner,
relocating plaintiff to another cell, or otherwise remedying the situation. (See Compl. ¶ 54).
V.

Claims Against Defendants in Their Official Capacities
Defendants are correct that plaintiff’s claims for monetary damages against defendants

acting in their official capacities are barred by the Eleventh Amendment. See Ying Jing Gan v.
City of New York, 996 F.2d 522, 529 (2d Cir. 1993).
Accordingly, all monetary damages claims against defendants in their official capacities
are dismissed; monetary claims against defendants in their individual capacities may proceed.
In addition, plaintiff’s claims for injunctive relief (see Compl. at “Requested Relief” ¶ B) may
proceed against defendants in their official capacities.
VI.

Qualified Immunity
Defendants argue they are entitled to qualified immunity.
The Court disagrees.
“The issues on qualified immunity are: (1) whether plaintiff has shown facts making out

violation of a constitutional right; (2) if so, whether that right was ‘clearly established;’ and
(3) even if the right was ‘clearly established,’ whether it was ‘objectively reasonable’ for the
officer to believe the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d
149, 154 (2d Cir. 2013) (quoting Taravella v. Town of Wolcott, 599 F.3d 129, 133–34 (2d Cir.
2010)).
Here, plaintiff has sufficiently alleged defendants violated his First and Eighth
Amendment rights, which were clearly established at the time, and it was not on its face

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reasonable for defendants to believe they could lawfully violate those rights. Again, this is an
issue that may be reviewed at summary judgment after the completion of discovery.
VII.

Leave to Amend
Rule 15(a)(2) instructs that courts “should freely give leave” to amend a complaint “when

justice so requires.” Liberal application of Rule 15(a) is warranted with respect to pro se
litigants who “should be afforded every reasonable opportunity to demonstrate that [they have] a
valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting Satchell v. Dilworth, 745
F.2d 781, 785 (2d Cir. 1984)). District courts “should not dismiss [pro se complaints] without
granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
However, leave to amend may “properly be denied for . . . ‘futility of amendment.’”
Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)). This is true even when plaintiff is proceeding pro se. See Martin v.
Dickson, 100 F. App’x 14, 16 (2d Cir. 2004) (summary order).
Here, the central claims in plaintiff’s complaint—that defendants violated his First and
Eighth Amendment rights—are going forward. Plaintiff’s other allegations are barred as a
matter of law. As a result, allowing plaintiff to amend those claims would be futile.
The Court therefore declines to grant plaintiff leave to file an amended complaint.

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CONCLUSION
Defendants’ motion to dismiss is GRANTED with respect to the RLUIPA claims and all
monetary claims against defendants in their official capacities. The motion is DENIED in all
other respects.
Defendants’ time to file an answer to the complaint is governed by Fed. R. Civ. P.
12(a)(4).
By separate order, the Court will schedule an initial conference pursuant to Fed. R. Civ.
P. 16 for the purpose of setting discovery deadlines and addressing other case management
issues.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962).
The Clerk is instructed to terminate the motion. (Doc. #17).
Dated: June 20, 2017
White Plains, NY

SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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