Amaker v. LeeAmaker v. Lee
- Reporters:
- ,
- Before:
- Nelson S. Román
OPINION & ORDER
Plaintiff Anthony Amaker brings this action against Defendants Anthony J. Annucci, Deputy Commissioner Joseph Bellnier, Assistant Commissioner and Counsel Maureen Boll, Deputy Superintendent Brandow, Lieutenant O. Bucolo, Deputy Superintendent Burnett, Correctional Officer Michael Burzo, Captain Carey, Correctional Officer John Chmielewski, Sergeant John Comforti, Head Cook Ahmed Elmanakhey,1 Correctional Officer J. Erns, Inspector General Vernon Fonda, Deputy Superintendent Luis Franco, Correctional Officer Hoiston, Deputy Superintendent James Johnson, Sergeant John Johnson, Sergeant Joseph, Deputy Commissioner David-Knapp, Sergeant Ronald Kuntz, Superintendent William Lee, Correction Officer Ryan Lieberman, Assistant Commissioner Jeffrey McCoy, Captain Thomas Melville, Lieutenant Murphy, Inspector William Noonan, Sergeant Kevin O‘Connors, L. O‘Neill, Calculations Clerk Heather Piquet, and Correction Officer George Santos. (“Second Amended Complaint,” ECF No. 87.) Plaintiff asserts claims under the Religious Land Use and Institutionalized Persons Act (“RLUIPA“)
BACKGROUND
The following facts are derived from the Second Amended Complaint and the documents appended thereto and are assumed to be true for the purposes of this motion.
After filing a
After Plaintiff filed his grievance, he endured multiple instances of retaliation. For instance, he was issued ill-fitting underwear and Defendants refused to allow Plaintiff to exchange the item for the appropriate size. (Id. ¶ 8.) Additionally, Defendants O‘Connors and Lee “intentionally deadlocked” a grievance he filed about this issue on June 13, 2013.3 (Id.) Approximately a month later, in July, Plaintiff filed a grievance about a regulation which limited inmates to only tee shirts with pockets in the mess hall after Plaintiff was sent back to his cell without a meal for not wearing a tee shirt with a pocket. (Id. ¶ 9.) That grievance has not been addressed. (Id.) In another incident, Plaintiff purchased a pair of boots, but Defendant Comforti, based on an outdated CORC decision, required Plaintiff to return the boots. (Id. ¶¶ 10-11.) Plaintiff had purchased the boots because the state-issued boots dirtied his socks which
When Ramadan started on July 9, 2013, Plaintiff alleges that he was subjected to additional violations of his constitutional rights. On July 15, 2013, Defendant Burzo intentionally violated Plaintiff‘s religious tenants by smoking cigarettes in the gym where Plaintiff and other Nation of Islam members were holding religious services. (Id. ¶ 16.) As part of Ramadan, Plaintiff and others were assigned to prepare and serve meals. (Id. ¶ 12.) On July 17, 2013, during meal preparation, Defendant Elmanakhey put his gloveless hands into the food pan for members of the Nation of Islam. (Id.) Defendant Elmanakhey also told the Nation of Islam food workers that if they did not provide him with two slices of their pizza, he would take what he wanted from their trays; he had a habit of stealing food from the Nation of Islam members and giving it to the Sunni Muslims. (Id. ¶ 13.)
The next day, Plaintiff was cleaning the kitchen and preparing to take his allotted serving of food when Defendant Elmanakhey came in and told him to throw away the extra food. (Id. ¶ 14.) After Plaintiff complied, Defendant Elmanakhey began following him around and asking him what he did with the extra food. (Id.) Plaintiff showed him and others the extra food he had deposited in the trash can, but Defendant Elmanakhey proceeded to berate Plaintiff. (Id.) Plaintiff alleges that Defendant Elmanakhey wanted to “deny [him] the necessary calories intake as everyone else.” (Id. ¶ 15.) On July 19, 2013, Defendant Lieberman told Plaintiff that Defendant Elmanakhey did not want Plaintiff working in the mess hall and told Plaintiff to go back to his cell. (Id.) Several officers, including Defendants Burzo, Lieberman, and Hoiston, attempted to intimidate Plaintiff outside of the mess hall when Plaintiff tried to explain that he was entitled to “freedom of [ ] religion during Ramadan” and requested to see Sargent Joseph
Plaintiff was issued another misbehavior report on July 21, 2013 from Defendants Lieberman and Elmanakhey in retaliation for a lawsuit Plaintiff had initiated about being deprived of necessary calories during Ramadan. (Id. ¶ 19.) In the report, those Defendants falsely stated that Plaintiff went to the mess hall after he was told not to and that Plaintiff was attempting to smuggle food. (Id.) A hearing was held on July 22, 2013 before Defendant Bucolo who allegedly coached witnesses and wanted to punish Plaintiff for observing Ramadan. (Id. ¶¶ 20 & 34.) Defendant Bucolo sentenced Plaintiff to thirty days in “keeplock.” (Id. ¶ 21.) Plaintiff appealed the decision, but his appeal was denied. (Id. ¶ 20.) While Plaintiff was in keeplock, he was denied adequate religion-approved food for at least eight days, and he received no meal on the day he was placed in keeplock. (Id. ¶ 21.)
After Plaintiff was released from keeplock, he was denied access to the court. His access to the law library was restricted which caused him to miss a deadline in his appeal of a state court decision. (Id. ¶ 22.) He was also denied the postage he needed to send legal documents. (Id. ¶ 23.) Plaintiff filed a grievance on these issues on October 4, 2013. (Id. ¶ 24.) Sometime after, Plaintiff was moved to a different block where Defendant Erns confronted and verbally harassed him for having more than four bags of property. (Id. ¶ 24.) Plaintiff explained that one of his bags was full of legal documents, and Defendant Erns proceeded to search the bags. (Id.) Defendant Kuntz approved the search, causing Plaintiff extreme stress. (Id. ¶¶ 24-25.) Later, Plaintiff discussed the issue with Defendant Lee who also approved of the search. (Id. ¶ 25.) Defendant Chmielewski interrupted their conversation to intimidate Plaintiff and proceeded to frisk Plaintiff and confiscate his notes and prayer oil. (Id.) Plaintiff filed a grievance against
On December 10, 2013, the prison was locked down and inmates were told that “in order to send out any mail they had to leave their mail open.” (Id. ¶ 28.) Plaintiff informed Defendants Carey and Johnson that this was a violation of the First Amendment. (Id. ¶ 28.) During the same lockdown, Plaintiff was subjected to a strip search, and this search occurred in front of female correctional officers. (Id. ¶ 29.) As part of the search, inmates, which included Plaintiff, were required to sit on the Body Orifice Security Scanner chair (“BOSS“) even though some inmates who sat on the chair had dirty underclothes. (Id.)
Sometime after this incident, and after Plaintiff asked Defendant Bellnier about the inappropriate set up of the Inmate Liaison Committee, Plaintiff was transferred to another maximum-security prison in retaliation for filing lawsuits against the Attica Correctional Facility. (Id. ¶ 30.) This transfer damaged Plaintiff‘s prospects for early release. (Id.) On top of the transfer, Defendants Noonan, Fonda, and Annucci conspired to keep incorrect information in Plaintiff‘s records in retaliation for his lawsuits and grievances. (Id. ¶ 32.)
LEGAL STANDARD
To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While legal conclusions can provide the framework of a complaint,
Further, a court is generally confined to the facts alleged in the complaint for the purposes of considering a motion to dismiss pursuant to 12(b)(6). Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the complaint, statements or documents incorporated into the complaint by reference, matters of which judicial notice may be taken, public records, and documents that the plaintiff either possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013).
Where a plaintiff proceeds pro se, the court must construe the complaint liberally and interpret it to “raise the strongest arguments that [it] suggest[s].” Askew v. Lindsey, No. 15-CV-7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016) (quoting Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013)). Yet, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.” Id. (quoting Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)).
DISCUSSION
Plaintiff brings this action pursuant to RLUIPA and
I. Exhaustion
Pursuant to the Prison Litigation Reform Act (“PLRA“),
Exhaustion of remedies “means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Washington v. Chaboty, No. 09-CV-9199(PGG), 2015 WL 1439348, at *6 (S.D.N.Y. Mar. 30, 2015) (quoting Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)) (internal quotation marks and citations omitted). To satisfy the exhaustion requirement, a plaintiff must use all available administrative mechanisms, including appeals, “through the highest level for each claim.” Varela v. Demmon, 491 F. Supp. 2d 442, 447 (S.D.N.Y. 2007); Veloz v. New York, 339 F. Supp. 2d 505, 514 (S.D.N.Y. 2004). The burden is on Defendants to demonstrate that Plaintiff‘s claim is not exhausted. Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). A Rule 12(b)(6) motion to dismiss for failure to exhaust should only be granted if “nonexhaustion is clear from the face of the complaint.” Lopez v. Cipolini, No. 14-CV-2441 KMK, 2015 WL 5732076, at *4 (S.D.N.Y. Sept. 30, 2015) (quoting Lovick v. Schriro, No. 12-CV-7419, 2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014)) (internal quotation mark omitted).
However, an inmate is not required to exhaust administrative remedies if those remedies are not available or the defendants waive the exhaustion affirmative defense.4 Williams v. Annucci, No. 16-CV-7288(NSR), 2018 WL 3148362, at *7, 8 (S.D.N.Y. June 27, 2018). According to the Supreme Court, an affirmative remedy is functionally unavailable when (1) the remedy is in fact a dead end “with officers unable or consistently unwilling to provide any relief; (2) the administrate scheme is “so opaque that it becomes, practically speaking, incapable of use“; or (3) prison officials prevent inmates from using the grievance process through “machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016). However, the Supreme Court noted that the above circumstances “will not often arise” “[g]iven prisons’ own incentives to maintain functioning remedial processes.” Id. at 1859.
Plaintiff alleges that he properly exhausted his claims by following the Green Haven grievance procedures and appealing unfavorable decisions. (Second Am. Compl. ¶ 47.) He also claims that none of his grievances filed after June 18, 2013 have been addressed by Defendants. (Id.) Specifically, Plaintiff filed grievances on (1) April 26, 2013 for the denial of access to religious services, which resulted in an unfavorable decision for Plaintiff which he appealed; (2) on June 13, 2013 about Defendants’ failure to provide him with appropriately sized undergarments to which he received a response; (3) in July 2013 about a regulation on clothing worn in the mess hall; (4) on October 4, 2013 for restrictions on his access to the law library; and (5) in late summer or early autumn 2013 for Defendants Erns‘s and Kuntz‘s treatment of him and his possessions during a move between blocks. (Id. ¶¶ 7-9, 24 & 26.) Defendants, however,
The Court agrees in part. Plaintiff states in his Second Amended Complaint that the religious services grievance was “reinvestigated after the filing of this initial complaint,” but he also states in the same paragraph, “These matters have been grieved before with a dead end result from CORC.” (Id. ¶ 7.) Interpreting the paragraph to raise the strongest argument it suggests, Askew v. Lindsey, No. 15-CV-7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016), Plaintiff sufficiently alleged that he exhausted this issue.5 However, the Court agrees that Plaintiff failed to exhaust any claims relating to his grievance about state-issue underwear.6 Plaintiff himself states that he received a reply from Defendants on this grievance in August 2013. (Id. ¶ 8.) Plaintiff apparently, incorrectly, interpreted this response as some sort of waiver by Defendants and failed to appeal the decision before initiating this action. (Id.) Regardless of Plaintiff‘s mistake, the Complaint contains no allegations that Plaintiff took any steps to attempt to appeal this unfavorable response and, therefore, he failed to exhaust claims arising from that incident. Varela v. Demmon, 491 F. Supp. 2d 442, 447 (S.D.N.Y. 2007) (noting that to satisfy the exhaustion requirement a plaintiff must exhaust all available administrative remedies “through the highest level“).
When, as here, a plaintiff seeks money damages against the defendants for violations of federal laws, the “personal involvement of defendants in alleged constitutional deprivations is a prerequisite.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). Personal involvement may include, but is not limited to, direct participation in the alleged violations. See Platt v. Village of Southampton, 391 F. App‘x 62, 65 (2d Cir. 2010) (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1066 (2d Cir. 1989)). The Second Circuit has previously found that the personal involvement of a supervisory defendant may be established by allegations that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights or inmates by failing to act on information indicating unconstitutional acts were occurring.
Neither the Supreme Court nor the Second Circuit have decided whether personal involvement is a prerequisite for a valid RLUIPA claim. Smith v. Graziano, No. 08-CV-469(GLS)(RFT), 2010 WL 1330019, at *9 (N.D.N.Y. Mar. 16, 2010). However, numerous district courts in this Circuit have held that “personal involvement is a necessary component of valid RLUIPA claims.” Id.; see, e.g., Corley v. City of New York, No. 14-CV-3202(GHW), 2017 WL 4357662, at *17 (S.D.N.Y. Sept. 28, 2017) (“[C]ourts in this Circuit have held that personal involvement is also a necessary component of a valid RLUIPA claim.“); Curry v. Bradt, No. 13-CV-355F, 2016 WL 1258341, at *2 (W.D.N.Y. Mar. 31, 2016); Ramrattan v. Fischer, No. 13-CV-6890(KPF), 2015 WL 3604242, at *9 (S.D.N.Y. June 9, 2015); Loccenitt v. City of New York, No. 12-CV-948(LTS)(MHD), 2013 WL 1091313, at *5 (S.D.N.Y. Mar. 15, 2013); Vann v. Fischer, No. 11-CV-1958(JPO), 2012 WL 2384428, at *5 (S.D.N.Y. June 21, 2012); Hamilton v. Smith, No. 06-CV-0805(GTS)(DRH), 2009 WL 3199520, at *9 (N.D.N.Y. Sept. 30, 2009). This Court agrees and finds that there must be some personal involvement by the defendants to impose liability under RLUIPA.
Even assuming the continuing vitality of each of the Colon factors, Plaintiff has failed to allege that Defendants Bellnier, Boll, Brandow, Chmielewski, Comforti, Fonda, Franco, James Johnson, John Johnson, Joseph, David-Knapp, McCoy, Murphy, Noonan, O‘Neill, Piquet, or Santos were personally involved in the alleged actions giving rise to any of his § 1983 or RLUIPA claims.
The Second Amended Complaint makes no mention of Defendants John Johnson, McCoy, or Murphy except to name them as Defendants, and any allegations related to Defendants Boll,7 Brandow,8 James Johnson,9 and Piquet10 do not suggest that they violated the Constitution or any other federal law. Therefore, the Court dismisses Plaintiff‘s claims against
Other Defendants, described below, are mentioned in the body of the Second Amended Complaint but not in such a way to indicate that they were personally involved in any unlawful conduct against Plaintiff.
Plaintiff alleges that Defendant Annucci transferred Plaintiff to another maximum-security prison even though he knew that this would create an adverse inference for parole purposes, that he and “others in Albany” knowingly kept false misbehavior reports in Plaintiff‘s records, and that he and others have “been imposing illegal rules against the 1st Amendment to free flow of mail.” (Second Am. Compl. ¶¶ 30-33.) Plaintiff‘s allegation that Defendant Annucci imposed illegal rules leading to mail being tampered with in violation of the First Amendment, coupled with his description of the policy and its effect on him, is sufficient to establish Defendant Annucci‘s personal involvement in that claim. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (noting that a defendant may be personally involved in a supervisory capacity if he created a policy under which unconstitutional practices occurred or allowed that policy to continue). However, the allegation that Defendant Annucci, as well as Defendants Fonda and Noonan and unnamed others, kept false misbehavior reports is conclusory; there are
Defendant Bellnier is identified as the individual who signed a package directive, but Plaintiff does not claim that the directive was in violation or caused violation of federal law.12 (See Second Am. Compl. ¶ 10.) Plaintiff also states that he was transferred to Green Haven after asking Defendant Bellnier about “the inappropriate set up of the Inmate Liaison Committee” and after filing lawsuits about retaliatory searches. (Id. ¶ 30.) As there are no allegations that Defendant Bellnier had a role in the decision to transfer Plaintiff or that Defendant Bellnier acted on or relayed Plaintiff‘s complaint to others, Plaintiff has not established that Defendant Bellnier was personally involved.
According to Plaintiff, Defendant Bucolo was biased against Plaintiff during his July 22, 2013 hearing, denying him the opportunity to call a witness and coaching the opposition‘s witnesses. (Id. ¶¶ 20, 34.) This is sufficient direct involvement for qualify as personal involvement. See Johnson v. Coombe, 156 F. Supp. 2d 273, 278 (S.D.N.Y. 2001) (holding that
Plaintiff alleges that Defendant Comforti deprived Plaintiff, in violation of existing directives at the facility, of his boots for discriminatory reasons. (Id. ¶ 10.) However, Plaintiff‘s reference to discrimination with respect to Defendant Comforti is conclusory. It is unclear form the face of the Second Amended Complaint on what basis Defendant Comforti allegedly discriminated against Plaintiff or how discrimination motivated his failure to adhere to the directive. See Zambrano-Lamhaouhi v. N.Y. City Bd. of Educ., 866 F. Supp. 2d 147, 164 (E.D.N.Y. 2011). Plaintiff also claims that Defendant Burnett condoned Defendant Comforti‘s decision (Second Am. Compl. ¶ 11), but the Second Amended Complaint contains no other facts about Defendant Burnett‘s involvement; this is merely a conclusory statement and falls short of personal involvement in a violation of federal law. Additionally, Plaintiff alleges that when Plaintiff asked an unnamed officer about the policy requiring officers to search all inmate mail, the officer told him that they were following Defendant Burnett‘s orders. (Id. ¶ 28.) This allegation is sufficient to establish Defendant Burnett‘s supervisory personal involvement in any First Amendment violation relating to the mail policy.
Defendant Burzo allegedly participated in intimidating Plaintiff outside of the mess hall and smoked cigarettes in the area where Plaintiff and others were holding a religious service which is sufficient to show personal involvement. (Id. ¶¶ 15-16.)
Defendant Carey allegedly affirmed what appears to be an unfavorable ruling against Plaintiff on one of his misbehavior reports. (Id. ¶ 26.) This allegation is too vague to show that Defendant Carey was involved in any sort of violation of the law as it is unclear exactly what
The sole allegations against Defendant Chmielewski are that Defendant Chmielewski “attempted to intimidate” Plaintiff while Plaintiff was telling Defendant Lee about the fact that his five bags were being searched and that he conducted a pat and frisk. (Id. ¶ 25.) These allegations do not amount to violations of the law.
Defendant Elmanakhey was personally involved, however, because Plaintiff alleges he directly participated in the alleged religious discrimination and retaliation. (Id. ¶¶ 13-14 & 19.)
The Second Amended Complaint also establishes Defendant Erns‘s personal involvement because Plaintiff alleges that Defendant Erns was the individual who illegally searched his bags and intimidated Plaintiff, potentially in retaliation and in violation of directives. (Id. ¶¶ 24-26.) Plaintiff also sufficiently alleged the personal involvement of Defendant Kuntz, who participated in Defendant Ern‘s allegedly wrongful search of Plaintiff‘s property and approached Plaintiff about a grievance Plaintiff had submitted against him. (Id.)
Plaintiff alleges that Defendant Franco was called as a witness but “refuse[d] to answer the questions.” (Id. ¶ 20.) This does not amount to a violation of the law by Defendant Franco and, if anything concerns the conduct of the hearing by Defendant Bucolo.
Under a liberal interpretation, Defendant Hoiston was personally involved in alleged retaliation against Plaintiff because he allegedly told Plaintiff to return to his cell after he was
Additionally, there are sufficient allegations to establish Defendant Lieberman‘s personal involvement, but not that of Defendant Joseph. Plaintiff alleges that after Defendant Elmanakhey kept asking him about the whereabouts of the extra food, he took Defendant Elmanakhey, along with Defendant Joseph and Defendant Lieberman, to the trash can. This is not personal involvement in any constitutional violation. Plaintiff also alleges, however, that Defendant Lieberman told him that he needed to leave the mess hall “after seeing [Defendant] Joseph.” Making every inference in Plaintiff‘s favor, this is enough to allege the personal involvement of Defendant Lieberman in alleged retaliation against Plaintiff, but not against Defendant Joseph.
Defendant David-Knapp only allegedly transferred Plaintiff to another max facility, and Plaintiff makes no allegations connecting that Defendant with retaliation or knowledge of retaliation. (Id. ¶ 30.) Corrections officials may transfer inmates to other facilities. See Roland v. Smith, 907 F. Supp. 2d 385, 391 (S.D.N.Y. 2012) (“[The New York Department of Corrections] has the absolute authority to transfer inmates between facilities, and an inmate has no right to be placed in, remain in, or be transferred to a certain facility.“).
Defendant Lee was personally involved because he allegedly has maintained an allegedly unconstitutional tee shirt policy (Id. ¶ 9.)
Plaintiff alleges that Defendant Melville affirmed Defendant Bucolo‘s decision after the disciplinary hearing which Plaintiff alleges violated his rights under federal law.14 The Second Circuit has held that an official who affirms the appeal of a hearing officer‘s decision may be
Defendant O‘Connors, allegedly, ordered the unconstitutional strip search that Plaintiff claims violated the Eighth Amendment and was thus personally involved. (Second Am. Compl. ¶ 29.)
Defendant O‘Neill is mentioned as someone who “help[s] to justify” the state-issued boots which, according to Plaintiff, turned his feet black and caused him to be in violation of prayer ritual. (Id. ¶ 11.) But Plaintiff makes no allegations about what it means to “justify” this policy or about Defendant O‘Neill‘s role in creating or enforcing the policy. This is not enough to establish direct or supervisory involvement.
Plaintiff alleges that he filed a grievance against Defendant Santos, and, from context, one could infer that the grievance related to the denial of access to religious services in April 2013. (Id. ¶ 7.) However, there are no allegations suggesting what Defendant Santos‘s role was in this denial, or whether Defendant Santos had any role in that denial.
Because the Second Amended Complaint states that Defendants Annucci, Bucolo, Burnett, Burzo, Carey, Elmanakhey, Erns, Hoiston, Lieberman, Kuntz, Lee, Melville, and O‘Connors were personally involved in alleged violations of federal law, the Court will consider Plaintiff‘s claims against those Defendants.
A. First Amendment
Plaintiff alleges that Defendants violated the First Amendment‘s Free Exercise Clause and that they also violated the First Amendment by retaliating against him for filing lawsuits and grievances and by denying him access to the courts.
1. Free Exercise Clause
A plaintiff asserting a Free Exercise Clause claim under the First Amendment must demonstrate that he or she has a sincerely held religious belief which was substantially burdened
The Free Exercise Clause also applies to inmates, who retain some measure of the constitutional protection. Id. at 588. However, the Second Circuit has recognized that “lawful
a) State-issued clothing
According to Plaintiff, Defendant Lee “oppress[ed] the plaintiff by having contrary policies concerning wearing T-shirts.” (Second Am. Compl. ¶ 9.) The state shop does not sell T-shirts that comply with Defendant Lee‘s policy. (Id.) As a result, Plaintiff was sent away from the mess hall in 2013 for wearing a noncompliant T-shirt during Ramadan, which took place in July in that year. (Id.) This is not a violation of Plaintiff‘s rights to free exercise of religion.17 To state a facially plausible Free Exercise Clause claim under the First Amendment, Plaintiff must demonstrate that he has a sincerely held religious belief which was substantially burdened by Defendants’ conduct and that Defendants’ conduct was not reasonably related to some legitimate penological interest. See Lopez v. Cipolini, 136 F. Supp. 3d 570, 586-87 (S.D.N.Y. 2015). Here, Plaintiff does not present facts suggesting any burden to his exercise of religion but merely that because of the policy he had to wear warm clothes in the mess hall during warm months, including July which also happened to coincide with Ramadan.
Plaintiff also alleges that the state-issued boots he received caused his feet to be unclean during prayer in violation of the principles of his religion. (Second Am. Compl. ¶ 11.) Even if there were a Defendant who was personally involved in this policy, Plaintiff‘s free exercise
The same principle applies in this case. Just as there is no constitutional violation for lack of a laundry service when inmates have access to soap, there is no violation of the Free Exercise Clause here because Plaintiff presumably had access to soap and a sink to wash his feet and socks before his prayer ritual. See Patterson, 2012 WL 3264354, at *8 (holding that the plaintiff, who alleged that laundry services had been discontinued, did not state a claim that his
b) Religious meals
Plaintiff alleges that his right to free exercise was also substantially burdened when, on July 17, 2013, Defendant Elmanakhey stuck his ungloved hands into the religious meals provided for the members of the Nation of Islam and when he stole food for the Nation of Islam and gave it to the Sunni Muslim inmates. These allegations only outline the isolated actions of one correctional officer and are not violations of the Free Exercise Clause; the facts in the Second Amended Complaint do not suggest that the actions substantially burdened Plaintiff‘s religious exercise. They are merely the isolated actions of one correctional officer and are de minimus. “Courts have generally held that incidents that are isolated, or few in number, involving a denial of religiously-mandated food, do not give rise to a First Amendment claim.” Washington v. Afify, 968 F. Supp. 2d 532, 538 (W.D.N.Y. 2013) (citing cases); see Wright v. Bibens, No. 17-CV-1917(MPS), 2018 WL 5724009, at *5 (D. Conn. Nov. 1, 2018); Tafari v. Annets, No. 06-CV-11360(GBD)(AJP), 2008 WL 2413995, at *16 (S.D.N.Y. June 12, 2008) (citing cases). Thus, Plaintiff has failed to state a facially plausible claim that his right to free exercise was substantially burdened by Defendant Elmanakhey‘s actions.
Plaintiff‘s claim that he was denied adequate, Ramadan-complaint meals during eight of his thirty-day disciplinary confinement in violation of his
Therefore, this claim must be dismissed.19
c) Exclusion from the mess hall
The day after Plaintiff had a confrontation with Defendant Elmanakhey, who accused Plaintiff of stealing food, Defendant Lieberman told Plaintiff that Defendant Elmanakhey no longer wanted him working in the mess hall serving religious meals and that he had to return to his cell. (Second Am. Compl. ¶ 15.) When Plaintiff did not immediately return to his cell, Defendants Burzo,20 Hoiston, and Lieberman all told him to return to his cell and then proceeded to issue Plaintiff a misbehavior report for refusing direct orders. (Id.) Plaintiff alleges that this
The Court finds that, accepting the facts in the Second Amended Complaint as true, Plaintiff stated a facially plausible claim that his free exercise rights were violated. Interpreting the Second Amended Complaint to raise the strongest argument it suggests, Plaintiff alleged that he had a sincerely held religious belief, which was that he had to break his fast during Ramadan with fellow believers, and that this belief was substantially burdened when Plaintiff was denied the opportunity to do so. See Lopez v. Cipolini, 136 F. Supp. 3d 570, 586–87 (S.D.N.Y. 2015). Causing Plaintiff to leave the mess hall before breaking his fast with other members of the Nation of Islam forced him to modify his behavior in violation of his beliefs, imposing a substantial burden. Monroe v. Gerbing, No. 16-CV-2818 (KMK), 2017 WL 6614625, at *10 (S.D.N.Y. Dec. 27, 2017). Further, Defendants did not present a legitimate penological interest for removing Plaintiff from the mess hall. While one could infer that Defendants excluded Plaintiff because they thought Plaintiff was stealing food, this would be an inference in favor of Defendants, the moving party. This inference would be contrary to the
2. Retaliation22
To properly plead a
Because “virtually any adverse action taken against a prisoner by a prison official . . . can be characterized as a constitutionally proscribed retaliatory act,” Dawes, 239 F.3d at 491, “such claims be ‘supported by specific and detailed factual allegations,’ not stated ‘in wholly conclusory terms.’ ” Leneau v. Ponte, No. 16-CV-776(GHW), 2018 WL 566456, at *11 (S.D.N.Y. Jan. 24, 2018) (quoting Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015)) (internal quotation marks omitted).
3. Access to the courts
Inmates have a constitutional right to meaningful access to the courts under the
Plaintiff alleges that, because he was denied special access to the law library and advancement of legal postage, he missed a deadline for two court cases. (Second Am. Compl. ¶ 22.) Aside from Plaintiff‘s failure to identify deliberate and malicious conduct, let alone any Defendant personally involved in these denials, Plaintiff also only provides conclusory allegations about his injury, alleging that he missed deadlines in “two appeals in the Appellate Division.” (Id.) For those reasons, Plaintiff did not state a facially plausible claim for denial of access to the courts.
Plaintiff also claims that Defendants, specifically Defendants Annucci, Burnett, and Carey, allowed or carried out a policy which allowed correctional officers to open outgoing legal and nonlegal mail during a lockdown on December 10, 2013. (Id. ¶ 28.) Tampering with legal mail implicates an inmate‘s rights of access to the courts, Davis, 320 F.3d at 351, and inmates have the right to be present when their legal mail is opened by prison officials. See Key v. Artuz, No. 95-CV-0392(HB), 1995 WL 542466, at *3 (S.D.N.Y. Sept. 13, 1995). However, there is no constitutional violation unless the mail tampering is regular and unjustifiable rather than an isolated incident. See Shepherd v. Fisher, No. 08-CV-9297(LTS)(RLE), 2011 WL 3278966, at *2 (S.D.N.Y. July 27, 2011) (“To state a violation of the right of access to the courts, an inmate
Here, Plaintiff did not allege that his right of access to the courts was unjustifiably chilled or that his legal mail was tampered with on a regular basis, merely that he was told that it would be opened due to a lockdown on December 10, 2013. Thus, the Second Amended Complaint does not include a facially plausible claim for denial of access to the courts upon which relief can be granted.
IV. Eighth Amendment
“Prison officials violate the
“For challenges to strip searches in particular, to state an
The Second Amended Complaint does not contain sufficient allegations to support a facially plausible
That inmates, including Plaintiff, were required to strip in front of female correctional officers also does not amount to a constitutional violation. “Case law reflects that the constitutionality of a strip search is not negated by the presence of other inmates and employees of the facility—of either sex—during the search.” Montgomery v. Hall, No. 11-CV 4645(PAC)(GWG), 2013 WL 1982920, at *4 (S.D.N.Y. May 15, 2013) (citing cases). This is particularly true where the search in the presence of opposite-sex correctional officers is conducted for a legitimate penological purpose. See Baker v. Welch, No. 03-CV 2267(JSR)(AJP), 2003 WL 22901051, at *14 (S.D.N.Y. Dec. 10, 2003). Here, based on the face of the Second Amended Complaint, the search occurred during a lockdown,24 and Defendants did not act maliciously or egregiously in conducting the search. Rather, Plaintiff alleges that the search was cruel and unusual solely because of the presence of correctional officers of the
V. Fourteenth Amendment
A. Due Process Clause
To state a claim for denial of due process at a disciplinary hearing, an inmate must identify a constitutionally protected interest of which he was deprived and then show that he was deprived of that interest without due process. Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). “A prisoner‘s liberty interest is implicated by prison discipline, such as [Special Housing Unit] confinement, only if the discipline ‘imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” Palmer v. Richards, 364 F.3d 60, 64 (2004) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
After a disciplinary hearing, Defendant Bucolo sentenced Plaintiff to thirty days in keeplock confinement. (Second Am. Compl. ¶ 21.) Courts in the Second Circuit have consistently held that thirty days in restrictive confinement is not a significant hardship implicating a liberty interest. See e.g., Anderson v. Lapolt, No. 07-CV-1184, 2009 WL 3232418, at *11 (N.D.N.Y. Oct. 1, 2009) (citing cases); Ochoa v. DeSimone, No. 06-CV-119(DNH)(RFT), 2008 WL 4517806, at *4 (N.D.N.Y. Sept. 30, 2008) (citing cases); Williams v. Keane, No. 95-CV-0379(AJP)(JGK), 1997 WL 527677, at *6 (S.D.N.Y. Aug. 25, 1997) (citing cases). “Without denial of a cognizable liberty interest, there can be no due process violation.” Thompson v. LaClair, No. 08-CV-0037(FJS)(DEP), 2009 WL 2762164, at *5 (N.D.N.Y. Aug. 25, 2009). Thus, because Plaintiff was not subjected to an atypical and significant hardship, he
B. Equal Protection Clause
The
Under a liberal interpretation, the Second Amended Complaint contains an allegation that Defendant Elmanakhey violated the Equal Protection Clause when he treated Sunni Muslims and members of the Nation of Islam differently by stealing food from the Nation of Islam tray and giving it to the Sunni Muslims. (Second Am. Compl. ¶¶ 13 & 43.) Assuming these allegations are true, they do not amount to a violation of the Equal Protection Clause. The Equal Protection Clause guarantees equal protection of the laws.
VI. Plaintiff‘s RLUIPA claims
Plaintiff alleges that the strip search during which Plaintiff and other inmates were required to sit in the BOSS chair in their boxers violated RLUIPA because the BOSS chair was unclean and because inmates were required to undress in front of women for the search. RLUIPA prohibits the government from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrate that the imposition of the burden on that person” is both “in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”
Here, even under a liberal interpretation, Plaintiff‘s Second Amended Complaint fails to state a facially plausible claim under RLUIPA. Plaintiff fails to allege how the act of complying with the BOSS search substantially burdened his religious exercise. While Plaintiff states that the BOSS chair was unclean after “several hundred prisoner[s]” sat on it with dirty underwear and that this process was happening in the presence of women working as guards, he makes no
Plaintiff also alleges that his free exercise rights under RLUIPA were violated when he was removed from the mess hall and forced to return to his cell. (Second Am. Compl. ¶ 17.) “Whether or not a prisoner sufficiently pleads a substantial burden on a sincerely held religious belief under RLUIPA involves the same threshold analysis as under the First Amendment.” Lopez v. Cipolini, 136 F. Supp. 3d 570, 587 (S.D.N.Y. 2015). Therefore, because the Court determined supra Part III(A)(1)(c) that Plaintiff stated a facially plausible claim that Defendants violated his
Finally, Plaintiff claims that Defendant Bucolo violated RLUIPA by “punish[ing] him for observing Ramadan,” and that Defendant Melville violated the same statute for affirming Defendant Bucolo‘s decision. (Second Am. Compl. ¶ 20.) “Whether asserted under the First Amendment or the RLUIPA, a religious liberty claim requires the prisoner demonstrate ‘that the disputed conduct substantially burdens his sincerely held religious beliefs.’ ” Ramsey v. Goord, 661 F. Supp. 2d 370, 395 (W.D.N.Y. 2009) (quoting Salahuddin v. Goord, 467 F.3d 263, 274–75 (2d Cir.2006)). Plaintiff‘s allegations against Defendants Bucolo and Melville do not suggest that the hearing itself, or the act of affirming the hearing decision, substantially burdened Plaintiff‘s sincerely held religious beliefs, only that Plaintiff subjectively believed he was being
VII. Qualified Immunity
Plaintiff‘s sole remaining claim is that Defendants Burzo, Hoiston, and Lieberman violated his rights under the
“[G]overnment officials performing discretionary functions generally are granted a qualified immunity and are ‘shielded 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.’ ” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Typically, the defense of qualified immunity will “rest on an evidentiary showing of what the defendant did and why.” Lamzot v. Phillips, No. 04-CV 6719 (LAK), 2006 WL 686578, at *8 (S.D.N.Y. Mar. 16, 2006) (citing Curry v. City of Syracuse, 316 F.3d 324, 334 (2d Cir. 2003)). However, at the motion to dismiss stage, defendants “must accept [a] more stringent standard.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). The “facts supporting the defense [must] appear on the face of the complaint,” id. (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67 (2d Cir. 1998)), and the motion must only be granted if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Id. (quoting Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992)). The burden of proof is on the defendant to establish the
Here, Defendants do not satisfy that burden. “The Second Circuit has, for decades, recognized that prison officials may not substantially burden inmates’ right to religious exercise without some justification.” Hammock v. Pierce, No. 15-CV-9052, 2018 WL 2108244, at *5 (S.D.N.Y. May 7, 2018) (citing Salahuddin v. Goord, 467 F.3d 263, 275 (2d Cir. 2006)). Defendants do not present any argument that reasonable persons in their position would not have understood that their actions violated Plaintiff‘s constitutional and statutory rights. See Barnes v. Furman, 629 F. App‘x 52, 56 (2d Cir. 2015) (holding that the defendants were not entitled to qualified immunity because they did not present a “legitimate penological interest” to justify infringing on the plaintiff‘s exercise of religion). Therefore, they are not entitled to qualified immunity.
VIII. Revocation of in forma pauperis (“IFP“) status
Defendants request that the Court revoke Plaintiff‘s IFP status and require Plaintiff to pay the full filing fee within thirty days because Plaintiff has had at least three actions in federal court dismissed on the merits under
Defendants make this request pursuant to the three strikes provision of the PLRA, which provides the following:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
In two cases, Amaker v. McDonnell, No. 96-CV-2298 (S.D.N.Y.) and Amaker v. Connelly, No. 96-CV-2813 (S.D.N.Y.), the court dismissed Plaintiff‘s cases pursuant to
Accordingly, the Court terminates Plaintiff‘s IFP status not because he was released from custody but because he has more than three strikes and does not claim to be under imminent danger of serious physical injury. See Loccenitt v. LaBrake, 2019 WL 1060802, at *3 (W.D.N.Y., 2019) (“[P]ursuant to the mandate of
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and DENIED in part. The Clerk of the Court is respectfully directed to terminate all Defendants except for Defendants Burzo, Hoiston, and Lieberman from this action. Additionally, because Plaintiff has more than three strikes, the Clerk of the Court is directed to terminate Plaintiffs IFP status. Plaintiff must pay the $400.00 filing fee and administrative fees on or before June 3, 2019. If Plaintiff does not timely pay those fees, his Second Amended Complaint will be dismissed without prejudice and the Clerk of the Court will terminate this case. Remaining Defendants Burzo, Hoiston, and Lieberman must file their answer on or before June 18, 2019. The Clerk of the Court is respectfully directed to terminate the motions at ECF Nos. 120 and 121, mail a copy of this Opinion to Plaintiff at his address as listed on ECF, and show proof of service on the docket.
Dated: May 3, 2019
White Plains, New York
NELSON S. ROMÁN
United States District Judge