Stewart v. Annucci et al

Filing 15

DECISION AND ORDER. Plaintiff's First Amendment religious discrimination claim shall proceed to service against Defendant Swartz in his personal capacity, and the remaining claims are dismissed with prejudice for the reasons stated. Plaintiff� 39;s 14 Motion to Appoint Counsel is denied without prejudice. The Clerk of Court is directed to terminate Defendant Sheahan as a party to this action and to cause the United States Marshal Service to serve copies of the Summons, Second Amended C omplaint, and this Order upon Defendant Swartz without Plaintiff's payment with unpaid fees to be recoverable if this action terminates by monetary award in Plaintiff's favor. The Clerk of Court will forward a copy of this Order to Michael Russo, Assistant General in Charge, Buffalo Regional Office at [e-mail]. Defendant is directed to respond to the Second Amended Complaint upon service. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 10/29/2018. (Copy of this Order mailed to pro se Plaintiff and electronically sent to Michael Russo.) (NRE)

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
CHANCE NATHANEAL STEWART,
Plaintiff,
Case # 17-CV-771-FPG
v.
DECISION AND ORDER
MICHAEL SHEAHAN
& BLAINE SWARTZ,
Defendants.
___________________________________
INTRODUCTION
Pro se Plaintiff Chance Stewart, an inmate currently confined at Auburn Correctional
Facility, filed an action asserting a First Amendment claim under 42 U.S.C. § 1983. He alleged
that, during his prior confinement at Southport Correctional Facility, Defendants failed to provide
him religious meals for four consecutive days during the month of Ramadan in violation of his
constitutional rights. Plaintiff seeks monetary damages.
Currently before the Court is Plaintiff’s Second Amended Complaint (ECF No. 13), which
must be reviewed for sufficiency under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. For the reasons
that follow, the Court concludes that Plaintiff’s First Amendment claim may proceed to service
against Defendant Swartz in his individual capacity. Plaintiff also moved to appoint counsel (ECF
No. 14), which the Court denies without prejudice as premature.
DISCUSSION
I.

Legal Standard
Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss

legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
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Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court must dismiss a complaint in a civil action in
which a prisoner seeks redress from a governmental entity, or an officer or employee of a
governmental entity, if the court determines that the action (1) fails to state a claim upon which
relief may be granted or (2) seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915A(b)(1)-(2). Generally, the court will afford a pro se plaintiff an
opportunity to amend or be heard before dismissal “unless the court can rule out any possibility,
however unlikely it might be, that an amended complaint would succeed in stating a claim.”
Abbas, 480 F.3d at 639 (internal quotation marks omitted). Leave to amend pleadings may be
denied, however, when amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000).
In evaluating the Second Amended Complaint, the court must accept all factual allegations
as true and draw all inferences in the plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139
(2d Cir. 2003). “Specific facts are not necessary” and the plaintiff “need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
U.S. 89, 93, (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal
quotation marks and citation omitted); see also Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir.
2008) (noting that “even after Twombly, dismissal of a pro se claim as insufficiently pleaded is
appropriate only in the most unsustainable of cases”). Although the court must liberally construe
pro se pleadings, “particularly when they allege civil rights violations,” McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004), such pleadings must still meet the notice requirements of Federal
Rule of Civil Procedure 8, Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004).
“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged
conduct (1) was attributable to a person acting under color of state law, and (2) deprived the

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plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.”
Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d
865, 875-76 (2d Cir. 1994)). “Section 1983 itself creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d
515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
II.

Plaintiff’s Allegations
A liberal reading of the Second Amended Complaint and attached documents, reveals that,

upon arriving at Southport in June 2016, Plaintiff identified himself as a practicing Muslim who
was fasting in observance of Ramadan. ECF No. 13. Sgt. Babb informed the kitchen staff,
including Defendant Swartz, the “Food Administrator,” of Plaintiff’s religious dietary needs and
instructed them to provide the Ramadan meals. Id. at 5. Defendant Swartz failed to provide
Plaintiff with Ramadan meals for four consecutive days and, ultimately, Plaintiff was forced to
break his fast prematurely due to excessive hunger. Id. at 5, 8.
Plaintiff wrote a letter to Defendant Sheahan, dated June 15, 2016, in which he stated that
he informed prison officials that he was “a Muslim observing the Ramadan fast,” but that his
requested Ramadan meals were not provided. Id. at 9. Plaintiff also submitted a grievance on
June 19, 2016, which was granted in part. Id. at 11-12. The Central Office Review Committee
acknowledged that Plaintiff was “inadvertently not placed on the Ramadan list.” Id. at 12.
A.

First Amendment Claim

Plaintiff alleges that Superintendent Sheahan and Food Administrator Swartz’s failure to
provide Ramadan meals to him for four consecutive days violated his First Amendment right to
the free exercise of religion.

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The Free Exercise Clause of the First Amendment, which protects the free exercise of
religion, extends to prisoners and includes their right to meals that comport with religious
requirements. Ford v. McGinnis, 352 F.3d 582, 588, 597 (2d Cir. 2003); see also McEachin v.
McGuinnis, 357 F.3d 197, 203-04 (2d Cir. 2004). 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) (quoting Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006)); see also Ford,
352 F.3d at 592 (assuming without deciding that substantial burden requirement applies). “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.” McEachin, 357 F.3d at 203.
Here, the Court finds that the Second Amended Complaint again fails to establish the
individual liability of Defendant Sheahan. As the Court instructed Plaintiff in its prior order (ECF
No. 12), to establish § 1983 liability against an official, a plaintiff must allege that individual’s
personal involvement in the alleged constitutional violation. It is insufficient to allege that a
defendant is a link in the chain of command, see McKenna v. Wright, 386 F.3d 432, 437 (2d Cir.
2004), and the theory of respondeat superior is not available in a § 1983 action, see Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir. 2003). Sheahan cannot be found personally involved for
purposes of § 1983 liability based on his alleged receipt of and failure to respond to Plaintiff’s
letter. See Haley v. Tryon, 12 F. Supp. 3d 573, 577 (W.D.N.Y. 2014) (citing Gayle v. Lucas, No.
97 Civ. 0883(MGC), 1998 WL 148416, at *4 (S.D.N.Y. Mar. 30, 1998) (“[T]he allegation that a
supervisory official ignored a prisoner’s letter protesting unconstitutional conduct is not itself
sufficient to allege the personal involvement of the official so as to create liability under § 1983.”)).
Therefore, the claims against Sheahan are dismissed, and he is terminated from this action.

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Although the remaining allegations are somewhat sparse, Plaintiff’s First Amendment
claim based on Food Supervisor Swartz’s failure to provide Ramadan meals is sufficient, for
purposes of initial review only, to proceed to service against Swartz in his individual capacity.1
B.

Official Capacity Claims

The Court concludes that Plaintiff’s official capacity claims must be dismissed. The
Eleventh Amendment divests the Court of subject matter jurisdiction over any claims for monetary
damages against a New York State official acting in his or her official capacity unless the state has
consented to the suit or waived this immunity or Congress has abrogated it. See Kentucky v.
Graham, 473 U.S. 159, 169 (1985); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466
F.3d 232, 236 (2d Cir. 2006). There has been no waiver or consent here. Therefore, Plaintiff’s
claims seeking money damages against the remaining Defendant in his official capacity is
dismissed with prejudice.
C.

Motion to Appoint Counsel

In deciding whether to appoint counsel, the Court must first determine whether the
indigent’s position seems likely to be of substance. If the claim meets this threshold requirement,
the Court will then consider a number of other factors in making its determination. See Hodge v.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). This action was only recently commenced, and
Defendant has not yet responded to the allegations contained in the Second Amended Complaint.
Therefore, the only facts upon which this Court may base its decision as to whether this lawsuit is
of substance are those portions of the pleadings wherein Plaintiff states the facts surrounding his

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Although Plaintiff also refers to “RLUIPA” (the Religious Land Use and Institutionalized Persons Act), which bars
the government from imposing a substantial burden on a prisoner’s free exercise of religion unless the challenged
conduct “further[s] a compelling government interest and [is] the least restrictive means of furthering that interest,”
Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010), the Act does not permit suits for money damages against state
officers in their official capacities or permit personal capacity claims for any form of relief. See Holland v. Goord,
758 F.3d 215, 224 (2d Cir. 2014).

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claim. At this stage, the Court lacks sufficient information to consider the relevant factors.
Accordingly, the Court denies Plaintiff’s request for counsel without prejudice as premature.
CONCLUSION
Plaintiff’s First Amendment religious discrimination claim shall proceed to service against
Defendant Swartz in his personal capacity, and the remaining claims are dismissed with prejudice
for the reasons stated above. The Clerk of Court is directed to terminate Defendant Sheahan as a
party to this action. Plaintiff’s request for the appointment of counsel (ECF No. 14) is denied
without prejudice.
The Clerk of Court is directed to cause the United States Marshal Service to serve copies
of the Summons, the Second Amended Complaint, and this Order upon Defendant Swartz without
Plaintiff’s payment with unpaid fees to be recoverable if this action terminates by monetary award
in Plaintiff’s favor.
The Clerk of Court will forward a copy of this Order to Michael Russo, Assistant Attorney
General in Charge, Buffalo Regional Office at [e-mail]. The Clerk will use the
mailing address for non-inmate mail provided by the New York State Department of Corrections
and Community Supervision’s website (http://www.doccs.ny.gov/faclist.html) as needed.
Pursuant to 42 U.S.C. § 1997e(g), Defendant is directed to respond to the Second Amended
Complaint upon service.
IT IS SO ORDERED.
Dated: October 29, 2018
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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