Johnson v. Westchester County Department of Corrections et al
Filing
22
OPINION AND ORDER re: 16 MOTION to Dismiss filed by Paul, County of Westchester, Horrowitz. For the foregoing reasons, Defendants' Motion To Dismiss is granted. However, because this is the first adjudication of Plaintiff 's claims on the merits, the dismissal is without prejudice. See Terry v. Inc. Vill. Of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016) (explaining that "district judges should, as a general matter, liberally permit pro se litigants to amend their pleadings" unless "amendment would be futile"). Should Plaintiff choose to file an amended complaint, he must do so within 30 days of this Opinion, addressing the deficiencies identified herein. The new amended complaint will rep lace, not supplement, the complaint currently before the Court. It therefore must contain all of the claims and factual allegations Plaintiff wishes the Court to consider, including the specific actions or omissions of each Defendant that violated P laintiff's constitutional rights. If Plaintiff fails to abide by the 30-day deadline, this Action could be dismissed with prejudice. The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt. No. 16), and to mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 5/21/2018) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KAMAR JOHNSON,
Plaintiff,
No. 17-CV-3654 (KMK)
v.
OPINION AND ORDER
FATHER PAUL; RABBI HOROWITZ;
COUNTY OF WESTCHESTER,
Defendants.
Appearances:
Kamar Johnson
Valhalla, NY
Pro Se Plaintiff
David H. Chen, Esq.
Westchester County Attorney’s Office
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Kamar Johnson (“Plaintiff”) filed the instant Complaint (“Complaint”),
pursuant to 42 U.S.C. § 1983, against the County of Westchester, Father Paul, and Rabbi
Horowitz (collectively, “Defendants”). (Compl. (Dkt. No. 1).) 1 Plaintiff alleges that Defendants
violated his rights under the First Amendment when they denied him Jewish meals and Jewish
1
Plaintiff sued the Westchester County Department of Correction, but the Court
substituted the County of Westchester as the proper Defendant. (Order of Service (Dkt. No. 8).)
services while he was detained at Westchester County Department of Correction (“WCDOC”).
(Id. at 3.) 2
Before the Court is Defendants’ Motion To Dismiss the Complaint Pursuant to Federal
Rule of Civil Procedure 12(b)(6). (See Notice of Mot. To Dismiss (Dkt. No. 16); Mem. of Law
in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) (Dkt. No. 17).) For the following reasons,
Defendants’ Motion is granted.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Complaint, (Compl.), and are taken as true
for the purpose of resolving the instant Motion. During the time of the alleged events, Plaintiff
was an inmate at WCDOC. (Id. at 2.)
On April 10, 2017, at approximately 8:00 a.m., Plaintiff was “not receiving [his] Jewish
meals even though [he]’d put in for it.” (Id. at 2–3.) Plaintiff had “been in [WCDOC] several
times before and [he] always got[] [his] Jewish meals with no problem, so [he is] trying to figure
out what’s the problem this time.” (Id. at 3.) It was “past over and [he] [couldn’t] partake in the
past over cause they [were] not sending [his] meals.” (Id.) 3 “Father Paul, Rabbi Horowitz, and
WCDOC ha[ve] failed to call Jewish service, and it [was] past over month.” (Id.) “Several other
2
Plaintiff’s Complaint is on a standard prisoner complaint form. For ease of reference,
the Court cites to the ECF-generated page numbers in the top right corner of the document.
3
The Court assumes Plaintiff is referring to the Jewish holiday of Passover when he says
“past over.” However, the Court takes judicial notice of the fact that the Passover holiday began
at sundown on Monday, April 10, 2017 and ended at sundown on Tuesday, April 18, 2017. See
Yoselovsky v. Associated Press, 917 F. Supp. 2d 262, 280 (S.D.N.Y. 2013) (citing Fed. R. Evid.
201(b)); see also Hebcal Jewish Calendar, www.hebcal.com (last visited April 9, 2018)
(identifying April 10 as “Erev Pesach” and showing eighth night on April 18, 2017). Therefore,
it is possible Plaintiff is referring to something else when he mentions the “past over month.”
(Compl. 3.)
2
Jewish inmates on Plaintiff’s block were also complaining about the lack of Jewish services,
“esp[ecially] for past over month.” (Id.)
Plaintiff alleges that these denials of meals and services violated his First Amendment
right to practice his religion. (Id.) He therefore requests that the Court enjoin WCDOC to call
Jewish services and provide Jewish religious meals, as well as $2,500,000 in compensatory
damages. (Id. at 5.)
B. Procedural Background
Plaintiff filed the Complaint on May 15, 2017, (Compl.), and was granted in forma
pauperis status on July 26, 2017, (Dkt. No. 6). On August 3, 2017, the Court issued an Order
substituting the County of Westchester as a Defendant in place of the Westchester County
Department of Correction and directing service on Defendants. (Order of Service (Dkt. No. 8).)
All Defendants were served. (See Dkt. Nos. 10, 12, 13.) On October 2, 2017, Defendants filed a
pre-motion letter indicating the grounds on which they would move to dismiss the Complaint.
(Letter from David H. Chen, Esq. to Court (Oct. 2, 2017) (Dkt. No. 14).) Plaintiff did not
respond, and the Court set a briefing schedule. (Dkt. No. 15.)
Defendants filed the Motion To Dismiss on October 24, 2017. (Notice of Mot; Defs.’
Mem.; Decl. of David H. Chen, Esq. in Supp. of Mot. to Dismiss (Dkt. No. 18).) Plaintiff did
not oppose the Motion. On January 9, 2018, Defendants asked the Court to consider the Motion
unopposed and to permit Defendants to file a late reply should Plaintiff belatedly file a response,
(Letter from David H. Chen, Esq. to Court (Jan. 9, 2018) (Dkt. No. 20)), which the Court
granted, (Dkt. No. 21).
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II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “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] claims across the line from conceivable to plausible, the[] complaint
must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint
states a plausible claim for relief will . . . be a 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.’” (second alteration in
original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a
notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but
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it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.”).
In considering Defendants’ Motion To Dismiss, the Court is required to “accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the
Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). 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). However, “the liberal treatment afforded to pro se litigants does not
exempt a pro se party from compliance with relevant rules of procedure and substantive law.”
Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted).
Thus, although the “failure to oppose Defendants’ [M]otion [T]o [D]ismiss does not, by itself,
require dismissal of [Plaintiff’s] claims,” Leach v. City of New York, No. 12-CV-2141, 2013 WL
1683668, at *2 (S.D.N.Y. Apr. 17, 2013), “the sufficiency of [the] [C]omplaint is a matter of law
that the [C]ourt is capable of determining based on its own reading of the pleading and
knowledge of the law,” McCall v. Pataki, 232 F.3d 321, 322–23 (2d Cir. 2000).
B. Analysis
1. Monell Liability
The County of Westchester argues that the Complaint should be dismissed against it for
failure to allege a policy, custom, or practice that caused the alleged constitutional violations.
(Defs.’ Mem 6–7.) “Congress did not intend municipalities to be held liable [under § 1983]
5
unless action pursuant to official municipal policy of some nature caused a constitutional tort.”
Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). Thus, “to prevail on a claim against
a municipality under [§] 1983 based on acts of a public official, a plaintiff is required to prove:
(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3)
causation; (4) damages; and (5) that an official policy of the municipality caused the
constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). In other words,
a municipality may not be liable under § 1983 “by application of the doctrine of respondeat
superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (italics omitted).
A plaintiff may satisfy the “policy or custom” requirement by alleging one of the
following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted);
Patterson v. County of Oneida, 375 F.3d 206, 226–27 (2d Cir. 2004) (describing methods of
establishing Monell liability). Moreover, a plaintiff also must establish a causal link between the
municipality's policy, custom, or practice and the alleged constitutional injury. See City of Okla.
v. Tuttle, 471 U.S. 808, 824 n.8 (1985) (“The fact that a municipal ‘policy’ might lead to ‘police
misconduct’ is hardly sufficient to satisfy Monell’s requirement that the particular policy be the
‘moving force’ behind a constitutional violation. There must at least be an affirmative link
between[, for example,] the training inadequacies alleged, and the particular constitutional
violation at issue.”).
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The Complaint is devoid of any factual allegations meeting these requirements. Indeed,
aside from listing the County of Westchester, originally sued as WCDOC, in the caption and as a
party, (Compl. 1), the County is mentioned only once in the Complaint, when Plaintiff alleges
that “WCDOC has failed to call Jewish service,” (id. at 3). However, Plaintiff does not allege
that this denial of services was undertaken pursuant to a “formal policy” of the County of
Westchester, that it was done by a policymaking official, that it was done as part of “a custom or
usage” that a supervisory policymaker was aware of, or that it was a result of inadequate training
or supervision of County employees. Brandon, 705 F. Supp. 2d. at 276–77. Plaintiff seems to
allege that the failure “to call Jewish service” occurred on April 10, 2017, (Compl. 2–3), but “a
single incident . . . especially if it involved only actors below the policy making level, does not
suffice to show a municipal policy,” DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (internal
quotation marks omitted). Similarly, to the extent Plaintiff is attempting to hold the County of
Westchester liable for Father Paul’s and Rabbi Horowitz’s alleged actions, a “single act” by a
County employee is insufficient to establish § 1983 liability for the County. See Bd. of Cty.
Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[I]t is not enough for a
§ 1983 plaintiff merely to identify conduct properly attributable to the municipality.”); Triano v.
Town of Harrison, NY, 895 F. Supp. 2d 526, 532 (S.D.N.Y. 2012) (“Normally, a custom or
policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere
employee of the municipality.” (alteration and internal quotation marks omitted)).
Construing the Complaint liberally, the County of Westchester was involved in the denial
of Jewish meals. (See Compl. 3 (alleging that “they [were] not sending [Plaintiff’s] meals”).)
However, again, Plaintiff does not allege that this was done pursuant to an official policy,
custom, or practice of the County. Indeed, Plaintiff implies that the denial of proper Jewish
7
meals was an exception to WCDOC policy. (See id. (“I’ve been in this Jail several times before
and I always [have] gotten my Jewish meals with no problem, so I’m trying to figure[] out
what’s the problem this time.”).) This attempt to impose vicarious liability on the County for
purported violations of its meal policy is “in direct violation of Monell.” Tyrrell v. Seaford
Union Free Sch. Dist., 792 F. Supp. 2d 601, 632 (E.D.N.Y. 2011) (dismissing Monell claim
where the “plaintiff’s argument [wa]s not that [the] defendants acted pursuant to an official
discriminatory policy. . . . Rather, [the] [p]laintiff’s argument [wa]s . . . that [a defendant] failed
to act in accordance with [the] policy”). In any event, as explained above, a “single” incident is
insufficient to show a policy or custom. See Triano, 895 F. Supp. 2d at 532 (S.D.N.Y. 2012).
Therefore, because Plaintiff does not allege any facts plausibly supporting an inference
that the County of Westchester had a policy, custom, or practice of denying inmates Jewish
services or meals, let alone during the holiday of “past over,” the Court grants the County’s
Motion To Dismiss on Monell grounds.
2. Personal Involvement
Defendants Rabbi Horowitz and Father Paul argue that the denial of meals claim should
be dismissed against them because they were not personally involved in the alleged denials.
(Defs.’ Mem. 7–8.) “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). To establish personal involvement, a plaintiff must show 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
8
to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Id. at 139 (alterations, italics, and internal quotation marks omitted). In other words, “because
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
Constitution.” Iqbal, 556 U.S. at 676. Therefore, Plaintiff must plausibly allege that Rabbi
Horowitz’s and Father Paul’s actions fall into one of the five categories identified above. See
Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL 365493, at *4 (S.D.N.Y. Jan. 24, 2017)
(holding that the five categories “still control[] with respect to claims that do not require a
showing of discriminatory intent” post-Iqbal).
The Complaint explicitly alleges that Father Paul and Rabbi Horowitz “failed to call
Jewish service” during the month of past over. (Compl. 3.) It also alleges, in the immediately
preceding sentence, that Plaintiff could not “partake in the past over cause they [were] not
sending [his] meals.” (Id.) Construing the Complaint liberally, it alleges that “they,” meaning
Father Paul and Rabbi Horowitz, personally deprived him of Jewish meals. (Id.) This satisfies
the personal involvement requirement. See Grullon, 720 F.3d at 139 (listing as a category that
“the defendant participated directly in the alleged constitutional violation”); cf. Shepherd v.
Fisher, No. 08-CV-9297, 2011 WL 3278966, at *4 (S.D.N.Y. July 27, 2011) (dismissing denial
of religious meals claim because the complaint did not allege that the defendant “was directly
responsible for the provision of religious meals . . . or played any other role in the alleged
deprivation that could support a finding of personal involvement under any prong of the Colon
test”). Therefore, the Court declines to dismiss this claim for lack of personal involvement.
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3. First Amendment Free Exercise Claim
Defendants argue that the Complaint fails to state a Free Exercise claim under the First
Amendment. (Defs.’ Mem. 4–6.) “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 “constitutional right to
participate in . . . religious services,” 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). 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.” Id. (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, 274–45 (2d Cir. 2006) (“The prisoner must show at the
threshold that the disputed conduct substantially burdens his sincerely held religious beliefs.”). 4
4
The Second Circuit has acknowledged that “[i]t has not been decided in this Circuit
whether, to state a claim under the First Amendment's Free Exercise Clause, a prisoner must
show at the threshold that the disputed conduct substantially burdens his sincerely held religious
beliefs.” Holland 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. This Court has already chosen to follow the analysis in Holland
and thus will proceed under the assumption that the substantial burden test is still valid. See
Gilliam v. Baez, No. 15-CV-6631, 2017 WL 476733, at *4 n.5 (S.D.N.Y. Feb. 2, 2017).
10
“[A] substantial burden exists where the state puts substantial pressure on an adherent to modify
his behavior and to violate his beliefs.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996)
(alterations and internal quotation marks omitted); see also Gilliam v. Baez, No. 15-CV-6631,
2017 WL 476733, at *5 (S.D.N.Y. Feb. 2, 2017) (same). 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 the plaintiff satisfies this burden, the defendants then “bear the relatively limited burden of
identifying the legitimate penological interests that justify the impinging conduct,” although “the
burden remains with the prisoner to show that these articulated concerns were irrational.”
Salahuddin, 467 F.3d at 275 (alterations and internal quotation marks omitted).
Defendants argue that Plaintiff has not pled his religious beliefs were sincerely held and
that in any event the deprivations at issue did not constitute a substantial burden. (Defs.’ Mem.
4–6.) Construing the Complaint liberally, Plaintiff alleges two ways his free exercise of Judaism
was burdened: (1) he was deprived of Jewish meals, preventing him from observing “the past
over,” and (2) he was denied at least one Jewish service during the month of “past over.”
(Compl. 3.) As alleged, neither of these states a claim for violation of the Free Exercise Clause.
Even assuming Plaintiff has sincerely held religious beliefs in receiving Jewish meals and
attending services during “past over,” he has failed to plausibly allege a substantial burden on
those beliefs. Although the Complaint states that Plaintiff “can’t partake in the past over cause
they [are] not sending [his] meals” and Defendants “failed to call Jewish service,” (Compl. 3), it
does not further allege that “past over” observance “is considered central or important to [his
religious] practice,” Ford, 352 F.3d at 593–94. For example, Plaintiff does not allege that
11
observing “past over” dietary restrictions or attending “past over” religious services is so
important to his Jewish faith that missing even one meal or service could constitute a substantial
burden. Cf. Lombardo v. Freebern, No. 16-CV-7146, 2018 WL 1627274, at *12 (S.D.N.Y. Mar.
30, 2018) (alleging that “Passover is the pinnacle of the reason Jews exist today, akin to the
Super Bowl of religious services” (internal quotation marks omitted)); Jones v. Annucci, No. 16CV-3516, 2018 WL 910594, at *14 (S.D.N.Y. Feb. 14, 2018) (alleging “that both Ghadir Khum
and Muharram/Ashura ‘are an integral part of the Shia faith’”); Allah v. Annucci, No. 16-CV1841, 2017 WL 3972517, at *9 (S.D.N.Y. Sept. 7, 2017) (referring “repeatedly” to the events “as
‘Holy Days,’ and specifically alleg[ing] that the events are ‘unique to Shi'ism’”); see also
Williams v. Does, 639 F. App’x 55, 57 (2d Cir. 2016) (explaining that the plaintiff “characterized
fasting for Ramadan as important to his practice of Islam and stated that eating before sunset was
a ‘grave spiritual sin’ that canceled the ‘validity’ of fasting”).
Moreover, even if “past over” is important to Plaintiff’s faith, Plaintiff provides no details
whatsoever about the missed meal(s) or service(s), such that the Court could reasonably infer
they were in turn important to—let alone necessary for—the observance of “past over.” (See
Compl. 3.) For example, he does not allege that the “Jewish meals” he requested were chametzfree, and that he was instead forced to choose between starving or observing Passover. 5 (Id.)
See Odom v. Dixion, No. 04-CV-889, 2008 WL 466255, at *12 (W.D.N.Y. Feb. 15, 2008)
(“[The] [p]laintiff does not allege, and points to no evidence suggesting, that he was obligated to
eat the specific ‘break-the-fast’ meal for Yom Kippur. As such, it is not established . . . that the
5
“The Torah directs Jews not to eat ‘chametz’ during Passover. See Exodus 12:15.
‘Chametz’ is ‘leven’—food made of grain and water that has been allowed to ferment and ‘rise.’
See http://www.chabad.org/librar y/howto/wizard_cdo/aid/1755/jewish/1–What–
isChametz.htm.” Riehl v. Martin, No. 13-CV-439, 2014 WL 1289601, at *3 n.2 (N.D.N.Y. Mar.
31, 2014) (third citation omitted).
12
denial of the meal ‘substantially burdened’ [the] [p]laintiff’s sincerely held religious belief in any
major tenet of the Jewish faith.”); cf. Jones, 2018 WL 910594, at *14 (finding that the plaintiff
plausibly alleged a substantial burden by alleging that he had to “‘perform[] these Islamic rituals
on his own,’ without access to halal foods, and thus ‘was forced to abandon performing them’
and to ‘break his fast’ by eating with the general population” (alteration omitted)); Riehl v.
Martin, No. 13-CV-439, 2014 WL 1289601, at *10 (N.D.N.Y. Mar. 31, 2014) (denying
summary judgment on free exercise claim where the plaintiff, a Jewish inmate, received food
with chametz during Passover); see also Williams, 639 F. App’x at 57 (finding that the plaintiff
“alleged a plausible free exercise claim” because the “complaint alleged that the premature
sunset meals forced him to either forgo his meal or break his fast”). Indeed, he does not even
allege that the “Jewish meals” he requested were meals prepared specifically for inmates
observing “past over,” rather than simply general kosher meals prepared for Jewish inmates. See
Goldschmidt v. N.Y. State Affordable Hous. Corp., 380 F. Supp. 2d 303, 317 (S.D.N.Y. 2005)
(distinguishing between people who “identify as Jewish” and those who “observe Shabbat” and
“Jewish holidays”). Nor does Plaintiff allege what service he missed during “past over month”
and how that interfered with his ability to observe the holiday. See Wilson v. Kelly, No. 11-CV30, 2012 WL 3704996, at *10 (N.D.N.Y. Aug. 27, 2012) (“Notably, [the] [p]laintiff does not
assert any factual allegations indicating what ‘combined religious services’ he was not able to
attend during the time in question or that he was not provided with an alternative method of
practicing his religion.”); cf. Lombardo, 2018 WL 1627274, at *12 (finding plausible the
allegation that missing one Passover Seder was a substantial burden). 6 Therefore, the Complaint
6
Indeed, as written, it is unclear whether the Complaint alleges missing “Jewish meals”
and a single “Jewish service,” all on April 10, 2017, (see Compl. 2–3), or whether these
deprivations occurred intermittently, throughout “past over month,” (id. at 3). However, as
13
fails to plausibly allege that Defendants “put[] substantial pressure on [Plaintiff] to modify his
behavior and to violate his beliefs.” Jolly, 76 F.3d at 477. Accordingly, the Court also grants
Defendants’ Motion To Dismiss for failure to state a First Amendment claim. 7
III. Conclusion
For the foregoing reasons, Defendants’ Motion To Dismiss is granted. However, because
this is the first adjudication of Plaintiff’s claims on the merits, the dismissal is without prejudice.
See Terry v. Inc. Vill. Of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016) (explaining that “district
judges should, as a general matter, liberally permit pro se litigants to amend their pleadings”
unless “amendment would be futile”).
Should Plaintiff choose to file an amended complaint, he must do so within 30 days of
this Opinion, addressing the deficiencies identified herein. The new amended complaint will
explained earlier, (see supra n.3), to the extent Plaintiff is referencing the Jewish holiday of
Passover, it lasted only eight days, not a month. Therefore, because the Complaint is devoid of
any details regarding these deprivations or whether Plaintiff had other means to observe “past
over,” the Court finds that any burden here was merely de minimis. Jones, 2018 WL 910594, at
*14 (“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.”
(internal quotation marks omitted) (collecting cases)); Leach v. New York City, No. 12-CV-3809,
2013 WL 3984996, at *2 (S.D.N.Y. Aug. 2, 2013) (“The intermittent failure to provide
incarcerated individuals with food complying with their religious dietary restrictions is a de
minimis imposition falling far short of the substantial burden requirement.”); Tafari v. Annets,
No. 06-CV-11360, 2008 WL 2413995, at *17 (S.D.N.Y. June 12, 2008) (holding that denial of
Kosher meals on six occasions “constitute a de minimis, not a substantial, interference with [the
plaintiff’s] free exercise of religion” (italics omitted)), adopted, 2008 WL 4449372 (S.D.N.Y.
Oct. 2, 2008), aff’d, 363 F. App’x 80 (2d Cir. 2010).
Because the Court concludes that Defendants did not violate the First Amendment, it
need not reach Defendants’ alternative argument that Rabbi Horowitz and Father Paul are
entitled to qualified immunity because they did not violate clearly established law. (Defs.’ Mem.
8.) See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that district courts have
discretion to “decid[e] which of the two prongs of the qualified immunity analysis should be
addressed first”). Similarly, the Court need not reach the issue of whether these Defendants have
immunity for acting in their clerical capacity. (Defs.’ Mem. 8.)
7
14
replace, not supplement, the complaint currently before the Court. It therefore must contain all
of the claims and factual allegations Plaintiff wishes the Court to consider, including the specific
actions or omissions of each Defendant that violated Plaintiff's constitutional rights. If Plaintiff
fails to abide by the 30-day deadline, this Action could be dismissed with prejudice.
The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt.
No. 16), and to mail a copy of this Opinion to Plaintiff.
SO ORDERED.
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Dated: May aJ , 2018
White Plains, New York
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