Omaro v. O'Connell
Filing
44
-CLERK TO FOLLOW UP- DECISION AND ORDER granting in part and denying in part 36 Motion for Summary Judgment; granting in part and denying in part 39 Motion for Summary Judgment; and referring this case to Magistrate Judge Michael J. Roemer pur suant to 28 U.S.C. § 636(b)(1) for a settlement conference on the issue of damages related to Omaros free exercise claim. (Clerk to send Decision and Order by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 11/4/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DERRICK R. OMARO, 92A0608,
Plaintiff,
No. 6:14-CV-06209 (MAT)
DECISION AND ORDER
-vsSERGEANT O’CONNELL,
Defendant.
I.
Introduction
Derrick R. Omaro (“Omaro”), proceeding pro se, brings this
action pursuant to 42 U.S.C. § 1983, alleging claims of religious
discrimination in violation of his First and Fourteenth Amendment
rights.1 Plaintiff and defendant Sergeant O’Connell (“Sergeant
O’Connell”) have filed cross-motions for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Doc. 84. For
the reasons set forth herein, Sergeant O’Connell’s motion is
granted in part and denied in part, and Omaro’s motion is denied.
II.
Factual Background and Procedural History
Omaro commenced this civil rights action pursuant to 42 U.S.C.
§ 1983 on April 29, 2014, alleging that Sergeant O’Connell, an
employee of the New York State Department of Corrections and
Community
Supervision (“DOCCS”),
religious
freedom
1
rights
and
violated
his
his
Fourteenth
First
Amendment
Amendment
equal
On December 31, 2014, this Court dismissed plaintiff’s related claim
based on the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. §§ 2000cc et seq. See doc. 10.
protection rights while Omaro was in the custody of DOCCS and
incarcerated at Attica Correctional Facility (“Attica”), in Attica,
New York.2 The following material facts are taken from the parties’
submissions in connection with their motions and from the record in
the case. See docs. 36, 39, 41, 42.
On
July
14,
2013,
Omaro,
a
practicing
Muslim,
was
participating in fasting in association with the Muslim holy month
of Ramadan. In 2013, the month of Ramadan spanned the time period
from Monday, July 8 through Wednesday, August 7. Observers of
Ramadan are expected to fast during daylight hours, sunrise through
sunset, on each day of Ramadan. Observers eat a light breakfast
before sunrise and one meal after sunset. On July 14, 2013, Omaro
received a visit from his wife during daylight, at approximately
lunchtime. Sergeant O’Connell observed Omaro eating food during
that visit. In Sergeant O’Connell’s words, “[b]eing the program
sergeant, [he was] very familiar with the Ramadan callout and knew
that [Omaro] was participating in the Ramadan fast.” Doc. 36 at 31.
He therefore “questioned [Omaro] about him eating and [Omaro] told
[Sergeant O’Connell] that he was not participating in the fast and
could eat what he wanted.” Id. Sergeant O’Connell “then had [Omaro]
2
Omaro is currently housed at Great Meadow Correctional Facility in
Comstock, New York.
2
removed from the Ramadan callout and made arrangements for him to
receive the regular KL[3] feed up trays.” Id.
On the evening of July 14, 2013, when Omaro inquired as to why
he did not receive his Ramadan fasting meal, he was informed that
“per
Sergeant
D.
O’Connell
he
was
removed
from
the
Ramadan
[callout] and would not be receiving Ramadan meals.” Id. at 13.
Omaro alleges that in removing him from the fasting list, Sergeant
O’Connell violated his constitutional rights and failed to follow
DOCCS policy. According to Omaro, his removal from the Ramadan
callout list resulted in his being unable to participate in Ramadan
fasting for the remainder of the month.
Omaro filed a grievance on July 14, 2013, which described
Sergeant O’Connell’s action in removing him from the Ramadan
callout list, and alleged that Sergeant O’Connell had a “history of
harassing
Muslim
inmates
and
[was]
known
for
his
hatred
of
Muslims.” Doc. 36 at 22. Omaro further alleged that “it [was] well
documented that for whatever reason a Muslim misses a day of
fasting, he can make that day up.” Id. Omaro maintains, and
Sergeant O’Connell has not disputed, that the Muslim faith allows
a member to resume his fast even where that member broke his fast
during Ramadan, and also allows a member to “make up” days of
fasting that were missed. By way of relief, Omaro requested that
3
At the time of the incident, Omaro was “on keeplock [KL], which meant
that he was confined to his cell.” Doc. 39-3 [O’Connell dec.] at ¶ 17.
3
DOCCS “confirm that there [was] no provision in DOCCS policy to
deny an inmate ‘Muslim’ practice and, upon confirmation . . .,
[that Omaro] be returned to all benefits of said . . . practices.”
Id.
Omaro’s grievance was initially denied by the Inmate Grievance
Program Committee (“IGRC”) on July 19, 2013. The denial explained
that, per Sergeant O’Connell, Omaro had been removed from the
Ramadan callout list because Sergeant O’Connell had observed Omaro
breaking fast and Omaro stated he was not participating in the
fast. In a new grievance letter dated July 19, 2013, Omaro stated,
“I do not deny that I had lunch with my wife on said day, however,
what seems to be at issue here is not whether I was seen having
lunch with my wife, rather [Sergeant] O’Connell’s deprivation on my
religious practice just because he feels he has the authority.”
Doc. 39-4 at 286.
At his deposition, Omaro also testified that he had a chronic
medical condition for which he had to take medication three times
per day, and that when he took medication he “[had] no other choice
but to drink sustenance or fill [his] belly.” Doc. 39-4 at 144-45.
In his statement of appeal from his first grievance, Omaro asserted
that Sergeant O’Connell had “fabricated” the story that Omaro
stated he was not participating in fasting; Omaro alleged, “Why
would I tell him that [that he was not fasting] and not the Imam
who has the authority only to change my religion and/or religious
4
practices.” Doc. 36 at 32. Omaro has never conceded that he told
Sergeant
O’Connell
that
he
was
not
participating
in
Ramadan
fasting.
Omaro appealed the denial of his first grievance to the
Superintendent of Attica, who denied Omaro’s appeal on July 25,
2013. The denial “advised” Omaro that “in accordance with CORC LKV
3878-3880-03[4] . . . when [] inmates break the fast they are
appropriately removed from the [R]amadan callout.” Id. Omaro was
also advised that “CORC dispositions have the effect of directives”
and that “when an employee is performing their job duties as
required that is not considered harassment.” Id. Omaro appealed the
Superintendent’s decision on July 31, 2013.
On January 29, 2014, in response to Omaro’s latest appeal, the
CORC issued a decision that Omaro’s grievance was “unanimously
accepted in part.” Doc. 36 at 33. That decision stated, as relevant
here:
Upon full hearing of the facts and circumstances in the
instant case, the action requested herein is hereby
accepted in part.
CORC notes that this matter has been properly
investigated by the facility administration. CORC asserts
that Sgt. O. should not have removed [Omaro] from the
list of Ramadan participants and that [his] break in fast
should have been reported to the facility Imam or if
absent the facility coordinating Chaplain. The Imam or
Chaplain will subsequently meet with the Deputy
Superintendent for Programs for appropriate action to be
4
This is an apparent reference to DOCCS’ Central Office Review Committee’s
(“CORC”) disposition on a separate grievance numbered 3878/3880-03. It does not
appear that Omaro was involved in that grievance proceeding.
5
taken. CORC notes that the facility administration has
taken appropriate corrective action to remind staff of
the importance to follow the Protocols for Ramadan 2013
which was issued to all Superintendents . . . on [June
24, 2013]. . . .
With respect to [Omaro’s] appeal, CORC notes that its
prior decision in LKV-3878/3880-03 was superseded by
revised department policy.
Id.
Omaro’s motion papers include various correspondence sent
among DOCCS personnel. In a May 28, 2013 memorandum to all DOCCS
superintendents,
the
Deputy
Commissioner
of
Program
Services
advised:
In regard to offenders missing meals during Ramadan, it
is expected that offenders will be referred to the
facility Imam (designated Chaplain in the absence of the
Imam). Afterwards, the Chaplain will meet with the Deputy
Superintendent for Program Services for appropriate
action to be taken. No offenders are to be removed from
Ramadan without the consent of the Deputy Superintendent
for Program Services.
Doc. 36 at 39 (emphasis added).
A June 24, 2013 memorandum entitled “Protocols for Ramadan
2013,” also addressed to all DOCCS superintendents, attached the
“Guidelines for Ramadan; Ramadan Activities in NYS DOCCS” (“the
Ramadan Guidelines”). Doc. 36 at 41-43. In relevant part, the
Ramadan Guidelines provided that “[w]hen the fast is legitimately
broken, the participant must make up the missed time prior to the
start of the next Ramadan session.” Id. at 42. Under a heading
entitled “Areas of Concern,” the Ramadan Guidelines provided, among
other things:
6
2.
Offenders who are ill are to be referred to the
designated Muslim Chaplain for counseling and are
not to be arbitrarily removed from the list of
Muslims participating in the fast. . . .
7.
Matters of further concern should be referred to
the facility Muslim Chaplain or the Director of
Ministerial, Family, and Volunteer Services.
Id. at 43.
Omaro also submitted email correspondence, the authenticity of
which Sergeant O’Connell does not dispute, which took place between
DOCCS personnel regarding Omaro’s grievance. In a November 30, 2013
email, Dennis (whose last name is redacted), referred Omaro’s
grievance to another DOCCS employee, Morris, and noted that the
CORC decision on Omaro’s appeal “reference[d] an old CORC [LKV
3878-3880-03].” Id. at 37. Morris replied, in part, “please note,
[Sergeant O’Connell’s] actions were not in compliance with policy.”
Id. In his declaration, Sergeant O’Connell states that he “was
aware of the DOCCS Ramadan protocol for 2013, but [he] was not
aware on July 14, 2013 that the policy was meant to apply to a
situation where [he] saw [Omaro] eating when he should have been
fasting
and
after
[Omaro]
told
[O’Connell]
that
he
was
not
participating in the Ramadan fast.” Doc. 39-3 at ¶ 34.
III. Standard of Review
Summary judgment is appropriate where the court determines
“there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” See Fed. R.
Civ. P. 56(c). The court must view all facts in the light most
7
favorable to the nonmoving party, but “only if there is a ‘genuine’
dispute as to those facts.” See Scott v. Harris, 550 U.S. 372, 380
(2007). A genuine issue of material fact exists if “the evidence is
such
that
a
reasonable
jury
could
return
a
verdict
for
the
nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The nonmoving party, however, may not rely on
“[c]onclusory allegations, conjecture, and speculation,” Kerzer v.
Kingly
Mfg.,
156
F.3d
396,
400
(2d
Cir.
1998),
but
must
affirmatively “set out specific facts showing a genuine issue for
trial.” See Fed. R. Civ. P. 56(e). To meet this burden, “a
plaintiff must come forward with evidence to allow a reasonable
jury to find in his favor” on each of the elements of his prima
facie case. See Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir.
2001).
IV. Discussion
Reading Omaro’s complaint liberally, it states two claims:
Omaro contends that (1) Sergeant O’Connell violated his First
Amendment rights under the free exercise clause of the First
Amendment when he removed Omaro from the Ramadan callout list; and
(2) Sergeant O’Connell discriminated against him on the basis of
his religion of Islam. The Court construes the second claim as one
brought
under
Amendment.
the
See,
equal
e.g.,
protection
Meadows
v.
clause
Lesh,
of
2010
the
WL
Fourteenth
3730105,
*3
(W.D.N.Y. Sept. 17, 2010) (“Although ‘religious discrimination
8
challenges are rarely brought under the equal protection clause,
thanks to the existence of the First Amendment,’ United States v.
Brown, 352 F.3d 654, 669 n.18 (2d Cir. 2003), ‘[i]t is unclear
whether plaintiffs are attempting to state a claim under the Free
Exercise Clause or the Equal Protection Clause. The Court has
therefore considered the Complaint under both.’”).
Sergeant O’Connell argues that, for purposes of Omaro’s free
exercise claim, (1) Sergeant O’Connell’s actions were reasonably
related to a legitimate penological purpose; and (2) he is entitled
to qualified immunity; and for purposes of Omaro’s equal protection
claim, (3) there is no evidence that Sergeant O’Connells actions
were taken with discriminatory intent.
A.
Omaro’s Free Exercise Claim
The Second Circuit has held that “[t]o prevail on a First
Amendment [free exercise] claim, a plaintiff must show that he has
a sincerely held religious belief, that it was substantially
burdened, and that defendants’ conduct was not reasonably related
to some legitimate penological interest.” Barnes v. Furman, 629 F.
App’x 52, 55 (2d Cir. 2015) (citing Holland v. Goord, 758 F.3d 215,
220–23 (2d Cir. 2014);
Ford v. McGinnis, 352 F.3d 582, 597-98 (2d
Cir. 2003)). “Defendants may assert a defense of qualified immunity
to such a claim, but they must show that their conduct ‘does not
violate clearly established statutory or constitutional rights of
9
which a reasonable person would have known.’” Id. (citing Zahrey v.
Coffey, 221 F.3d 342, 347 (2d Cir. 2000)).
1.
Reasonable
Interests
Relation
to
Legitimate
Penological
Sergeant O’Connell argues that Omaro’s free exercise claim
must be dismissed because the removal of Omaro from the Ramadan
callout list was reasonably related to legitimate penological
interests. “Under the First Amendment, . . . a generally applicable
policy will not be held to violate a plaintiff's right to free
exercise of religion if that policy ‘is reasonably related to
legitimate penological interests.’” Redd v. Wright, 597 F.3d 532,
536 (2d Cir. 2010) (internal quotation marks omitted) (citing
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)); see also
Barnes v. Furman, 629 F. App’x 52, 56 (2d Cir. 2015) (“Taken
together, our earlier decisions have clearly established that
prison officials may not prohibit a sincere religious practice
without some legitimate penological interest.”). This standard is
“less
restrictive
than
that
ordinarily
applied
to
alleged
infringements of fundamental constitutional rights.” O’Lone, 482
U.S. at 349.
As
Sergeant
O’Connell
points
out,
the
rule
requiring
a
legitimate penological interest is equally applicable to individual
actions of prison personnel as it is to generally-applied policies
or regulations. See Salahuddin v. Goord, 467 F.3d 263, 274 n.4
(2d Cir. 2006) (“An individualized decision to deny a prisoner the
10
ability to engage in religious exercise is analyzed in the same way
as a prison regulation denying such exercise.”). Moreover, “prison
administrators . . . should be accorded wide-ranging deference in
the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and
to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520,
547 (1979).
In Turner v. Safley, 482 U.S. 78, 90 (1987), the Supreme Court
explained that several factors must be considered when evaluating
the validity of prison regulations, or, in this case, Sergeant
O’Connell’s particular action. Pursuant to Turner, (1) “there must
be a ‘valid, rational connection’ between the prison regulation and
the legitimate governmental interest put forward to justify it”;
(2) courts should assess “whether there are alternative means of
exercising
the
(3)
should
courts
asserted
right
that
consider
constitutional
remain
“the
right
open
impact
will
have
to
prison
inmates”;
accommodation
on
guards
and
of
the
other
inmates, and on the allocation of prison resources generally”; and
(4) courts should consider available alternatives: “the absence of
ready alternatives is evidence of the reasonableness of a prison
regulation,” whereas “the existence of obvious, easy alternatives
may be evidence that the regulation is not reasonable.” Id.; see
also Johnson v. Goord, 445 F.3d 532, 535 (2d Cir. 2006) (explaining
Turner).
11
In O’Lone, 482 U.S. at 348, the Supreme Court identified three
justifications
“deterrence
it considered
of
crime,
“valid
penological
rehabilitation
of
objectives” –
prisoners,
and
institutional security.” Subsequent jurisprudence from lower courts
has held that cost can constitute a legitimate penological interest
in certain circumstances. See, e.g., McLenithan v. Williams, 2016
WL 1312314, *8 (D. Or. Apr. 4, 2016) (“The legitimate penological
interests of cost control justify the decision not to provide
kosher meals to non-Jewish inmates.”); Troy v. Kuhlmann, 1999 WL
825622, *14 (S.D.N.Y. Oct. 15, 1999) (“Defendants have a legitimate
penological objective – to ensure that the State only absorb the
cost of legal mail and not all correspondences – for checking the
addressee of Troy’s letter.”). Case law discussing the specific
issue presented here tends to address cost in terms of dietary
needs of numerous inmates as opposed to the cost of one or few
meals. See, e.g., Sefeldeen v. Alamaida, 238 Fed. App’x 204, 206
(9th Cir. 2007) (“Here, the legitimate governmental interest is to
reasonably accommodate thousands of inmates’ religious dietary
needs
while
also
considering
budgetary,
staff,
and
security
limitations.”). The Turner Court itself did not discuss to what
extent cost saving can be a legitimate government interest, but
stated that “if an inmate claimant can point to an alternative that
fully accommodates the prisoner’s rights at de minimis cost to
valid penological interests, a court may consider that as evidence
12
that the regulation does not satisfy the reasonable relationship
standard.” 482 U.S. at 91.
Sergeant O’Connell contends that “[t]here was no need for
[Omaro] to receive the more expensive Ramadan meal, nor [was] there
need for the administrative effort necessary to deliver the meal.”
Doc. 39-5 at 11; doc. 39-3 at ¶ 25. Sergeant O’Connell’s argument
therefore identifies two penological interests which he asserts are
legitimate and justified his removal of Omaro from the Ramadan
callout list:
expense and administrative effort. The question is
whether, under the Turner test, these penological interests were
“legitimate” and whether they were “reasonably related” to Sergeant
O’Connell’s action.
With respect to the first Turner factor, as for Sergeant
O’Connell’s contention that “administrative effort” was saved due
to his action, the Court finds no valid, rational connection
between this alleged penological interest and his action. The
Ramadan
protocol
and
guidelines
establish
that
a
prison-wide
Ramadan meal plan had already been implemented; therefore Omaro and
other inmates were already scheduled to have meals before sunrise
and after sunset. It strains credulity that changing Omaro’s meal
plan
from
two-per-day
administrative
effort,
to
three-per-day
where
prison
actually
personnel
saved
were
any
already
responsible for administering both categories of meal plans to
inmates in the facility. Moreover, because Omaro was switched to a
13
three-per-day from a two-per-day meal plan, the new plan would
arguably result in more administrative effort with one additional
meal per day. Regardless, any effort saved would be de minimis,
especially considering that Omaro was already properly on the list
of Ramadan fasting inmates and, due to Sergeant O’Connell’s action,
had to be removed.
The Court finds that there was, at a minimum, a “valid,
rational connection” between Sergeant O’Connell’s action and the
penological interest of cost. See Turner, 482 U.S. at 90. It is
conceivable that placing Omaro back on the regular, three-meal-perday meal plan was less expensive than keeping him on the two-mealper-day Ramadan fasting plan for the remainder of the month.
However, the Court emphasizes here that this relation is merely
conceivable,
and
not
necessarily
likely.
Tellingly,
Sergeant
O’Connell has put forth no actual evidence of exactly how much cost
savings resulted from his action in removing Omaro from the Ramadan
callout list; he simply states, in conclusory fashion, that Ramadan
meals were “more expensive.” Doc. 39-3 at ¶ 25.
The Court notes Sergeant O’Connell’s argument that, because
Omaro testified that he had a medical condition requiring him to
eat or drink three times per day, the valid penological interest of
cost-savings justified removing him from the Ramadan callout list.
See doc. 39-5 at 12 (citing doc. 39-4 [Omaro’s deposition] at 64).
In so arguing, Sergeant O’Connell attempts to analogize this case
14
to Keitt v. T. Hawk, 2015 WL 1246058 (N.D.N.Y. Mar. 18, 2015). In
Keitt, the plaintiff wanted to participate in both regular meals
three times per day, and extra Ramadan fasting meals. The Court
held that “[a] policy which prohibits mixing different types of
meal plans is also rationally related to the legitimate penological
interest in the orderly and cost-effective provision of nutritional
meals for a substantial number of inmates.” Id. at *14 (emphasis
added).
Sergeant O’Connell’s argument on this point fails for at least
four reasons. First, Sergeant O’Connell has not stated that he was
aware that Omaro had any such medical condition at the time he
removed Omaro from the Ramadan callout list; therefore this was not
a factor in his decision to deny Omaro Ramadan fasting meals.
Second, Keitt is not analogous because here, unlike in Keitt, Omaro
was enrolled only in Ramadan fasting meals and he was removed from
that list and instead placed on regular meals; thus, no “mixing” of
meal plans occurred. Third, and relatedly, Sergeant O’Connell’s
argument mischaracterizes Omaro’s testimony; he did not testify
that he eats three times per day, including during Ramadan, due to
his medical condition. He testified that he, as well as all of the
other practicing Muslims in prison, generally received different
food
than
other
inmates,
three
times
per
day.
But
he
never
testified that he received two meal plans at once during Ramadan.
See doc. 39-4 [Omaro’s deposition] at 64. Finally, DOCCS’ 2013
15
Ramadan Guidelines explicitly provided that “[o]ffenders who [were]
ill [were] to be referred to the designated Muslim Chaplain for
counseling and [were] not to be arbitrarily removed from the list
of Muslims participating in the fast.” Doc. 36 at 43. Therefore,
the Court does not accept Sergeant O’Connell’s argument that he was
justified in removing Omaro from the Ramadan callout list because
he had a chronic medical condition.
The second Turner factor requires the Court to assess “whether
there are alternative means of exercising the right that remain
open to prison inmates.” 482 U.S. at 90. In this case, because the
prison controlled Omaro’s meals, he had no “alternative means” of
exercising his right to Ramadan fasting and the specially-timed
meals associated with that observance. See Jones v. Hobbs, 2010 WL
3909979, *4 (E.D. Ark. Sept. 13, 2010), report and recommendation
adopted, 2010 WL 3909951 (E.D. Ark. Oct. 1, 2010) (holding that
plaintiff had no “significant alternative means” of expressing his
religious beliefs where defendants denied him his religious diet).
Indeed, Omaro has attested that because of Sergeant O’Connell’s
action, he was unable to participate in Ramadan fasting for the
remainder of that month in 2013. The second Turner factor thus
weighs in Omaro’s favor.
Pursuant to the third Turner factor, the Court must consider
“the impact accommodation of the asserted constitutional right will
have on guards and other inmates, and on the allocation of prison
16
resources generally.” 482 U.S. at 90. This factor relates to
Sergeant O’Connell’s “administrative effort” justification, which
the Court
has
already
found
lacked a
rational
connection to
O’Connell’s action. In this case, the impact of allowing Omaro to
stay on the Ramadan callout list would have been minimal, because
he was already on it. Cf. Muhammad v. San Joaquin County Jail, 2006
WL 1282944, *7 (E.D. Cal. May 10, 2006), report and recommendation
adopted, 2006 WL 2082249 (E.D. Cal. July 25, 2006) (holding that
“no legitimate penological interest [had] been advanced which would
justify the refusal to provide bag meals to eat after sundown
during Ramadan to Muslim prisoners who request them” because “the
record reveal[ed] that the [jail] [already] provide[d] meals to eat
after sundown during Ramadan.”). Thus, the third Turner factor also
weighs in Omaro’s favor.
Finally, under the fourth Turner factor, the Court must
consider whether alternatives to Sergeant O’Connell’s action were
available. “[T]he absence of ready alternatives is evidence of the
reasonableness of a prison regulation,” whereas “the existence of
obvious, easy alternatives may be evidence that the regulation is
not reasonable.” 482 U.S. at 90. This factor also weighs in Omaro’s
favor.
An
“obvious,
easy
alternative[]”
existed
to
Sergeant
O’Connell’s action: he could have simply not removed Omaro from the
Ramadan callout list. This alternative, quite significantly, would
have complied with DOCCS policy on Ramadan, and would have cost the
17
prison no additional money (over that of what it had already
budgeted for Ramadan meals) and no additional effort. See id.
(“[I]f an inmate claimant can point to an alternative that fully
accommodates the prisoner’s rights at de minimis cost to valid
penological interests, a court may consider that as evidence that
the
regulation
does
not
satisfy
the
reasonable
relationship
standard.”). 482 U.S. at 91.
Consideration of the Turner factors, therefore, leads to the
conclusion
that
Sergeant
O’Connell
has
failed
to
advance
a
legitimate penological interest sufficient to justify his removal
of Omaro from the Ramadan callout list. See Wall v. Wade, 741 F.3d
492, 502 (4th Cir. 2014) (“Wall’s right to participate in Ramadan
was clearly established, and when the defendants abridged this
right without first satisfying Turner’s reasonableness test, they
subjected
themselves
to
the
potential
for
liability.”).
Accordingly, Sergeant O’Connell’s motion for summary judgment on
this claim is denied and Omaro’s motion for summary judgment is
granted. Because the material facts relevant to this determination
are not in dispute, Omaro’s motion for summary judgment with
respect to his free exercise claim is granted. The only remaining
issue for consideration regarding that claim is qualified immunity.
2.
Qualified Immunity
Sergeant O’Connell contends that he is entitled to qualified
immunity, arguing specifically that he believed that Omaro was not
18
participating in Ramadan fasting, and because this belief was
objectively reasonable, he is entitled to qualified immunity.
“Qualified
immunity
shields
government
officials
performing
discretionary functions ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Zahra v. Town of Southold, 48 F.3d 674, 686 (2d Cir.
1995). A
party
is
entitled to
summary
judgment
on
qualified
immunity grounds if the court finds that the rights asserted by the
plaintiff were not clearly established, or that “drawing all
inferences most favorable to, the plaintiff[],” a reasonable jury
“could conclude that it was objectively unreasonable for the
defendant to believe that he was acting in a fashion that did not
clearly violate an established federally protected right.” Lee v.
Sandberg, 136 F.3 d 94, 102 (2d Cir. 1997) (citations omitted).
Initially, the Court notes that a Muslim inmate’s right to
participate in Ramadan fasting was clearly established at the time
of the incident. See Ford, 352 F.3d at 597 (holding that Muslim
inmate’s
right
to
“Eid
ul
Fitr
feast,
held
once
a
year
in
conjunction with a daylong celebration marking the successful
completion of Ramadan” was clearly established); Lee v. Wenderlich,
2006 WL 2711671, *11 (W.D.N.Y. Sept. 21, 2006) (citing Smith v.
Violi, 1995 WL 150465, *3 (N.D. Cal. Mar. 31, 1995) (“This court
therefore finds, as a matter of law, that the law requiring the
19
availability of after-dark kosher meals during the Islamic holy
month of Ramadan to Muslim prisoners who request them is clearly
established.”)).
The next question is whether, in light of the surrounding
facts and circumstances, it was objectively reasonable for Sergeant
O’Connell to believe that summarily removing Omaro from the Ramadan
callout list did not violate Omaro’s constitutional rights. See
Lee, 136 F.3d at 102 (noting that defendant is entitled to summary
judgment only where no reasonable jury “could conclude that it was
objectively unreasonable for the defendant[] to believe that he was
acting in a fashion that did not clearly violate an established
federally protected right.”) (internal quotation marks omitted).
According to Sergeant O’Connell, he witnessed Omaro eating lunch
with his wife and Omaro informed O’Connell that he, Omaro, was not
participating in Ramadan fasting. For the reasons discussed below,
the Court finds that regardless of whether Omaro told Sergeant
O’Connell that he was not participating in fasting, Sergeant
O’Connell’s behavior was objectively unreasonable.
In Ford v. McGinnis, 352 F.3d 582, 584 (2d Cir. 2003), the
defendants, all DOCCS employees, denied the plaintiff one meal:
“the Eid ul Fitr feast, held once a year in conjunction with a
daylong celebration marking the successful completion of Ramadan.”
The feast, which according to Muslim religion is to be held within
three days of the end of Ramadan, was postponed for approximately
20
a week that year at Downstate Correctional Facility to give inmates
the opportunity to eat with their families. Id. at 585. The
plaintiff was denied participation because he was housed in SHU and
because, according to religious authorities at DOCCS, the feast
lost religious significance once moved more than three days beyond
Ramadan. Id. at 587. On summary judgment, the district court relied
on
the
religious
authorities
and
held
that
the
plaintiff’s
“religious beliefs were not infringed because the feast, having
been moved beyond the three days following the close of Ramadan, no
longer carried any objective religious significance.” Id. at 586.
With regard to qualified immunity, the district court held that “it
was objectively reasonable for [defendants] to believe that their
refusal to provide Ford the Eid ul Fitr feast did not violate [the
plaintiff’s] constitutional rights.” Id.
On appeal, the Second Circuit reversed, and specifically with
regard to qualified immunity, held that the defendants’ belief was
not objectively reasonable because “the proper inquiry was always
whether Ford’s belief was sincerely held and ‘in his own scheme of
things, religious.’” Id. at 598 (emphasis in original) (citing
Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984). The Second
Circuit noted that, in so holding, it did “not suggest that
religious authorities can never be employed in assisting prison
officials in making [the] determination” whether a prisoner’s
beliefs were sincerely held. Id.
21
In this case, Sergeant O’Connell had a specific familiarity
with the Ramadan fasting protocols. In a memorandum produced during
the investigation of Omaro’s grievance, he stated, “Being the
Program Sergeant, I am very familiar with the Ramadan callout and
knew that [Omaro] was participating in the Ramadan fast.” Doc. 36
at 31. In his submissions on summary judgment, Sergeant O’Connell
states that he “was aware of the DOCCS Ramadan protocol for 2013,
but [he] was not aware on July 14, 2013 that the policy was meant
to apply to this situation where [he] saw [Omaro] eating when he
should
have
been
fasting
and
after
[Omaro]
told
[Sergeant
O’Connell] that he was not participating in the Ramadan fast.”
Doc. 39-3 at ¶ 34.
As Omaro argues, factoring into the reasonableness analysis
are the Ramadan protocols and guidelines issued to prison officials
prior to Ramadan 2013. The protocols, with which Sergeant O’Connell
was fully familiar in his position as program sergeant, explicitly
stated that “[n]o offenders [were] to be removed from Ramadan
without the consent of the Deputy Superintendent for Program
Services.” Doc. 36 at 39. The Ramadan Guidelines specifically
provided
that
“[w]hen
the
fast
is
legitimately
broken,
the
participant must make up the missed time prior to the start of the
next Ramadan session.” Id. at 42. The Ramadan Guidelines went on to
state that matters of further concern were to be relayed to the
22
facility Muslim Chaplain or the Director of Ministerial, Family,
and Volunteer Services.
Thus,
the
Ramadan
protocols
and
guidelines
put
DOCCS
personnel, including Sergeant O’Connell, on notice that (1) an
inmate might break his fast, and in such a situation, the inmate
could continue participating in Ramadan fasting by make up the
missed time; (2) removal of an inmate from the Ramadan callout list
was not to be done without consent of the Deputy Superintendent for
Program Services; and (3) issues in need of clarification were to
be presented to DOCCS religious personnel. See, e.g., Muhammad,
2006 WL 1282944, at *7 (“In order to ascertain the reasonableness
of each defendants conduct, it is first necessary to ascertain
whether
each
defendant
has
sufficient
notice
of
the
alleged
violations of plaintiff’s constitutional rights so as to create a
duty to inquire whether plaintiff’s religious dietary needs were
being met.”).
The Court recognizes that a violation of DOCCS policy does not
result in a per se constitutional violation. See Rivera v. Madan,
2013 WL 4860116, *8 n.7 (S.D.N.Y. Sept. 12, 2013) (“A violation of
internal policies and procedures does not by itself give rise to
liability
under
Section
1983.”)
(emphasis
added).
However,
violation of policy is relevant to the analysis of whether a
defendant’s belief was objectively reasonable for purposes of
qualified
immunity.
Given
the
content
23
of
the
protocols
and
guidelines, the undisputed fact that Sergeant O’Connell violated
them when he unilaterally removed Omaro from the Ramadan callout
list, and Sergeant O’Connell’s position as program sergeant, his
declaration that he “was not aware on July 14, 2013 that the policy
was meant to apply to this situation” is belied by the record.
As the Second Circuit noted in Ford, “[b]alanced against the
desire ‘to shield officials responsibly attempting to perform their
public duties in good faith from having to explain their actions to
the satisfaction of a jury’ is the need ‘to hold responsible public
officials exercising their power in a wholly unjustified manner.’”
Ford, 352 F.3d at 597 (quoting Duamutef v. Hollins, 297 F.3d 108,
111 (2d Cir. 2002)). The Court finds that, considering all of the
facts
and
circumstances
established
by
the
record,
Sergeant
O’Connell’s action was objectively unreasonable and he exercised
his power in an unjustified manner.
Accordingly, Sergeant O’Connell is not entitled to qualified
immunity and his motion for summary judgment on this ground is
denied.
See,
e.g.,
Ippolito
v.
Goord,
2012
WL
4210125,
*18
(W.D.N.Y. Sept. 19, 2012) (“[T]he Court finds, as a matter of law,
that [defendant’s] belief that his acts were constitutional was
objectively unreasonable.”); see also Reischauer v. Jones, 2005 WL
2045833, *4 (W.D. Mich. Aug. 24, 2005); Washington v. Garcia, 977
F. Supp. 1067, 1074 (S.D. Cal. 1997). This case will be referred to
24
Magistrate Judge Michael J. Roemer for a settlement conference on
the issue of damages related to Omaro’s free exercise claim.
B.
Omaro’s Equal Protection Claim
Sergeant O’Connell’s final argument is that Omaro has not
established that O’Connell acted with discriminatory intent, which
is elemental to an equal protection religious discrimination claim.
“While comparators are not required, traditional equal protection
plaintiffs must still allege facts supporting a plausible inference
that ‘discriminatory intent was a motivating factor’ in order to
state an equal protection claim.” White v. City of N.Y., 2016 WL
4750180, *6 (S.D.N.Y. Sept. 12, 2016) (citing Okin v. Village of
Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 438 (2d Cir. 2009)).
“Conclusory allegations of . . . plaintiff’s personal belief of
discriminatory intent [are] insufficient.” Nash v. McGinnis, 585 F.
Supp. 2d 455, 462 (W.D.N.Y. 2008).
Omaro’s
Sergeant
complaint
O’Connell
states
the
“intentionally
conclusory
allegation
discriminated
against
that
[him]
because [he was] a practicing Muslim.” Doc. 1 at 5. It is not
entirely clear from this language whether Omaro meant to allege an
equal protection claim, or whether any such claim as stated against
Sergeant O’Connell was merely duplicative of Omaro’s free exercise
claim. In any event, as Sergeant O’Connell points out, when pressed
as to whether he could point to evidence of specific instances of
O’Connell’s discrimination against Muslims, Omaro stated that the
25
“only evidence [he had was] the evidence that pertains to [him].”
Doc. 39-4 at 28. Omaro later testified: “I can’t honestly say if he
discriminated against Muslims. But I can tell you he discriminated
against me through his actions.” Id. at 126.
Therefore, to the extent that Omaro’s complaint attempts to
make out
an
equal protection claim,
for
purposes
of
summary
judgment, Omaro has failed to establish that Sergeant O’Connell
acted with the requisite discriminatory intent to support such a
claim. Accordingly, the Court grants Sergeant O’Connell’s motion
for summary judgment as to Omaro’s equal protection claim and this
claim is dismissed with prejudice. See Nash, 585 F. Supp. 2d at
462.
V. Conclusion
For the foregoing reasons, Sergeant O’Connell’s motion for
summary judgment (doc. 39) is granted in part and denied in part
and Omaro’s motion for summary judgment (doc. 36) is granted in
part and denied in part. It is hereby
ORDERED that with regard to Omaro’s Fourteenth Amendment equal
protection claim, Sergeant O’Connell’s motion for summary judgment
(doc. 39) is granted and Omaro’s motion for summary judgment (doc.
36) is denied, and the claim is therefore dismissed with prejudice;
ORDERED that with regard to Omaro’s First Amendment free
exercise claim, Sergeant O’Connell’s motion for summary judgment
(doc. 39)
is
denied
and
Omaro’s
26
motion
for
summary
judgment
(doc. 36) is granted, and the Court finds Sergeant O’Connell liable
as to this claim; and
ORDERED that this case is referred to Magistrate Judge Michael
J. Roemer pursuant to 28 U.S.C. § 636(b)(1) for a settlement
conference on the issue of damages related to Omaro’s free exercise
claim.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
November 4, 2016
Rochester, New York.
27
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