Opinion
18-CV-05505 (VEC)(SN)
08-05-2019
NAGIBE AL-HAJ, Plaintiff, v. OMH STATE OF N.Y., et al., Defendants.
REPORT AND RECOMMENDATION SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE VALERIE E. CAPRONI, United States District Judge:
On March 27, 2019, Individual Defendant Scott Weisner ("Dr. Weisner") filed a motion to dismiss the pro se Plaintiff's Third Amended Complaint. ECF No. 46. This motion should be granted, and the Third Amended Complaint should be dismissed in its entirety.
BACKGROUND
Plaintiff commenced this action on June 19, 2018. ECF No. 2. In his initial complaint, Plaintiff brought claims under 42 U.S.C. § 1983 against the New York State Office of Mental Health ("OMH"), and two individuals, Imam Zalkfl and Imam Kan. Id., at 1, 3. Plaintiff alleged that the individual Defendants refused to conduct "Jamih" services and that, as a result, he was entitled to money damages. Id. at 4-5. On July 13, 2018, the Honorable Valerie E. Caproni dismissed Plaintiff's claims against OMH under the Eleventh Amendment. ECF No. 6, at 2.
On November 16, 2018, the Court held a telephone conference with Plaintiff and the New York State Office of the Attorney General. ECF No. 20. During the conference, Plaintiff indicated that he wanted to bring claims only against the Kirby Forensic Psychiatric Center ("Kirby"). ECF No. 22, at 1. In an Order dated November 20, 2018, the Court informed Plaintiff that the Eleventh Amendment barred his claims against Kirby, but that he could seek injunctive relief against an appropriate officer. Id. at 2-3. The Court further explained that, if Plaintiff wanted to pursue a claim for money damages, he would have to reassert his claims against Defendants Zalkfl and Kan. Id. at 3. The Court granted Plaintiff 30 days to file an amended complaint to clarify which claims he intended to pursue. Id. at 4.
Plaintiff filed an amended complaint on December 12, 2018, and a second amended complaint on December 18. ECF Nos. 26, 29. Plaintiff filed the Third Amended Complaint ("TAC") on December 27. ECF No. 30. In the TAC, Plaintiff brings claims against OMH, Kirby, and Dr. Scott Weisner, a Kirby employee. TAC, at 4. Plaintiff alleges that, since June 20, 2012, he has led a Muslim service on Fridays without being paid. Id. at 5. Plaintiff seeks $75,000 in damages, but does not request any injunctive relief. Id. at 6.
On February 6, 2019, the Court recommended dismissing Plaintiff's claims against OMH and Kirby under the Eleventh Amendment. ECF No. 38, at 3. Neither party objected to the Court's decision, and on May 10, 2019, it was adopted in its entirety. ECF No. 59. Dr. Weisner, the only remaining Defendant, moves to dismiss the TAC.
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead sufficient facts to "state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). A claim has facial plausibility when it contains factual content that allows the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although not akin to a "probability requirement," this standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id.
In evaluating a motion to dismiss, a court must "accept all factual allegations in the complaint as true and draw all reasonable inferences in [the plaintiff's] favor." Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). That tenant does not apply to legal conclusions, however, and mere "threadbare recitals" of the elements of a cause of action do not suffice. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Similarly, while a court must interpret a pro se complaint to "raise the strongest arguments that [it] suggests," it cannot "invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation and internal quotation marks omitted).
DISCUSSION
I. Claims against Dr. Weisner in His Official Capacity
The Eleventh Amendment bars the award of money damages against state officials in their official capacities. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). Kirby is an agency of the State of New York, and its employees are "state officials" for purposes of the Eleventh Amendment. McNair v. Kirby Forensic Psychiatric Ctr., No. 09-CV-6660, 2010 WL 4446772, at *1, 7 (S.D.N.Y. Nov. 5, 2010).
Here, Plaintiff states that he is pursuing money damages, but does not specify whether he is suing Dr. Weisner in his individual or official capacity. Because Dr. Weisner is a Kirby employee, any claims for money damages against Dr. Weisner in his official capacity should be dismissed.
II. Claims against Dr. Weisner in His Individual Capacity
Plaintiff, proceeding under 42 U.S.C. § 1983, alleges that Kirby violated his right to practice his religion. Specifically, Plaintiff contends that Kirby "denied [his] constitutional right to have [an] Imam [during] Friday service." ECF No. 69. Because Plaintiff fails to allege that Dr. Weisner was personally involved in the alleged constitutional deprivation — and because Plaintiff fails to plead a constitutional violation in the first place — the TAC should be dismissed.
A. Personal Involvement
To obtain relief under § 1983, a plaintiff must demonstrate that the defendant was personally involved in the alleged constitutional deprivation. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). Personal involvement may be shown by evidence 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 . . . [failed] to act on information indicating that unconstitutional acts were occurring.Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Moreover, a defendant cannot be held liable merely because he holds a high position of authority. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted).
The Court of Appeals has recognized that the Supreme Court's decision in Iqbal "may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations." Grullon, 720 F.3d at 139. The Court need not decide the continued vitality of Colon, however, because Plaintiff's allegations fail even under its potentially more lenient standard. See Samuels v. Fisher, 168 F. Supp. 3d 625, 635-36 (S.D.N.Y. 2016).
Here, Plaintiff does not allege that Dr. Weisner was personally involved in the conditions or events that allegedly violated his right to practice his religion. Indeed, other than appearing in the list of named Defendants, Dr. Weisner is not mentioned at all in Plaintiff's complaint. See TAC, 1-7. Because Plaintiff does not allege that Dr. Weisner was involved in, or even aware of, any alleged constitutional violation, his claim should be dismissed. See Barnes v. Pozzi, No. 10-CV-2554 (JGK), 2012 WL 3155073, at *8 (S.D.N.Y. Aug. 3, 2012) (concluding that the plaintiff failed to plead personal involvement where the defendants were referenced only in the caption and list of defendants); Myers v. City of New York, No. 11-CV-8525 (PAE), 2012 WL 3776707, at *3 (S.D.N.Y. Aug. 29, 2012) (reaching similar conclusion).
B. Constitutional Deprivation
To plead a claim under § 1983, a plaintiff must show, among other things, a "violation of a right, privilege, or immunity secured by the Constitution or laws of the United States." Cruz v. City of New York, 232 F. Supp. 3d 438, 451 (S.D.N.Y. 2017) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Plaintiff does not cite any federal statutes or Constitutional provisions in the Third Amended Complaint. See TAC, at 1-7. Interpreting the allegations broadly, the Court construes Plaintiff to have alleged a violation of the First Amendment's Free Exercise Clause.
The Free Exercise Clause is an "unflinching pledge to allow our citizenry to explore . . . religious beliefs in accordance with the dictates of their conscious." Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984). Prisoners do not relinquish this right upon incarceration. Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). It is well-accepted, however, that a prisoner's right to exercise his religion is "subject to valid penological concerns." Woodward v. Perez, No. 12- CV-8671 (ER), 2014 WL 4276416, at *3 (S.D.N.Y. Aug. 29, 2014) (citations omitted). Accordingly, a prisoner's Free Exercise claims are evaluated "under a reasonableness test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." Ford, 352 F.3d at 588.
The free exercise analysis applied in the prison context is also applied in cases where the plaintiff is involuntarily committed at a psychiatric center. See Lombardo v. Freebern, No. 16-CV-7146 (KMK), 2018 WL 1627274, at *8 n.11 (S.D.N.Y. Mar. 30, 2018).
Under this approach, a prisoner must show "at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006) (citing Ford, 352 F.3d at 591). A "substantial burden" exists where the state "puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." McEachin v. McGuinnis, 357 F.3d 197, 202 n.4 (2d Cir. 2004) (citing Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996)). In conducting this inquiry, the relevant question is whether the prisoner's participation in a religious activity is "central or important" to the practice of his religion. Ford, 352 F.3d at 593-94. Once a prisoner makes this showing, the defendant "bear[s] the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct." Salahuddin, 467 F.3d at 275. "[T]he burden remains with the prisoner to show that these articulated concerns [are] irrational." Id.
The Court of Appeals has not decided the impact of the Supreme Court's decision in Employment Division v. Smith on the viability of the "substantial burden" test. Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014). "[B]ecause . . . the Court concludes that Plaintiff has not pleaded sufficient facts to allege the personal involvement of [Dr. Weisner] or to establish any burden on his religious beliefs, the Court need not grapple with the weight of the burden at this time." Ramrattan v. Fischer, No. 13-CV-6890 (KPF), 2015 WL 3604242, at *7 n.6 (S.D.N.Y. June 9, 2015); Rossi v. Fishcer, No. 13-CV-3167 (PKC) (DF), 2015 WL 769551, at *6 n.8 (S.D.N.Y. Feb. 24, 2015) ("[T]he Court will apply the substantial burden test as neither party has argued against employing this standard."); Gilliam v. Baez, No. 15-CV-6631 (KMK), 2017 WL 476733, at *4 n.5 (S.D.N.Y. Feb. 2, 2017) (assuming that "the substantial burden test is still valid").
Here, Plaintiff has failed to allege that his ability to exercise his religious beliefs was substantially burdened. Plaintiff makes a single factual allegation in the Third Amended Complaint: that he performed Muslim services in Arabic on Fridays without payment. TAC, at 5. But Plaintiff does not explain (1) why receiving compensation for religious services is "central or important" to the practice of his faith; or (2) why the failure to receive such compensation puts "substantial pressure" on him to "violate his beliefs." Accordingly, Plaintiff has failed to state a claim under the Free Exercise Clause. See Rossi, 2015 WL 769551, at *10 (dismissing claim challenging defendants' collection of funds raised by an inmate-based religious organization where plaintiff did not show that the deprivation of funds constituted a substantial burden on his religious beliefs).
Plaintiff's opposition does not alter the Court's analysis. Plaintiff alleges — not that he was prevented from performing a religious service, full stop — but that he was denied his "constitutional right to have [an] Imam [during the] Friday service." ECF No. 69. Plaintiff describes the Friday service as the "Jamaah prayer" and a "religious [talk]." Id. But Plaintiff does not allege any facts regarding the significance of the Jamaah prayer, or more importantly, the role of an advisor in the prayer's performance. Without these allegations, Plaintiff's claim cannot survive a motion to dismiss. See Rossi, 2015 WL 769551, at *10 (dismissing claim for access to religious advisors where plaintiff made "no showing regarding how contact with advisors is 'central or important' to the practice of his faith"); Ramrattan, 2015 WL 3604242, at *11 (reaching similar conclusion); Richardson v. Gleason, No. 18-CV-0474 (DNH) (TWD), 2018 WL 6335453, at *6 (N.D.N.Y. Dec. 5, 2018) (same).
On April 8, 2019, the Court directed Plaintiff to file an opposition to Dr. Weisner's motion to dismiss no later than May 10, 2019. ECF No. 51. The Court reminded Plaintiff of this deadline on April 16 and again on May 13. ECF Nos. 54, 60. When Plaintiff failed to file an opposition by May 20, the Court directed Plaintiff to do so by May 28. ECF No. 61. The Court warned that Dr. Weisner's motion would be deemed fully submitted if no response was filed. Id. Subsequently, on June 11, the Court extended the deadline to respond to Defendant's motion until June 29. Although Plaintiff did not file a timely opposition, he submitted three handwritten letters dated July 2, 4, and 8, respectively. Nos. 68-70. In the July 2 letter, Plaintiff makes several allegations unrelated to this case, including that he broke a disc in his back when he fell off his bed and that he has been harassed in various ways by doctors and the "SHTA." ECF No. 68. Plaintiff has filed a separate lawsuit regarding these allegations. See ECF No. 1, Complaint, No. 19-CV-3135 (CM) (S.D.N.Y.). Accordingly, they are not properly addressed here. In the July 4 letter, referenced above, Plaintiff indicates that he is "opposing the motion to dismiss," but does not provide any arguments about the merits of the case. ECF No. 69. Similarly, in the July 8 letter, Plaintiff asserts that he wishes to oppose Dr. Weisner's motion and requests a further extension of his time to respond. ECF No. 70. Because the Court has given Plaintiff ample opportunity to file an opposition, that request is DENIED.
III. Leave to Amend
"[L]eave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citing Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000)). Accordingly, "[a] pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Chavis, 618 F.3d at 170.
Plaintiff should not be given leave to amend. As described above, the Court previously granted Plaintiff permission to file an amended complaint. ECF No. 22. In doing so, the Court explained that, although Plaintiff could not recover money damages against Kirby for past conduct, he could pursue injunctive relief regarding his right to practice his religion in the future. Id. at 2. The Court also explained that, if Plaintiff wanted to obtain money damages, he needed to bring a claim against a defendant in his individual capacity and allege that the defendant was personally involved in a constitutional violation. Id. at 2-3.
Despite the Court's detailed explanation, Plaintiff's Third Amended Complaint brings the exact type of claims that the Court warned would not survive a motion to dismiss. Plaintiff seeks money damages from Kirby, which he cannot obtain, and from Dr. Weisner, who is not alleged to have been personally involved in any unconstitutional conduct. There is no indication that Plaintiff intends to pursue injunctive relief, or that he possesses facts that would show Dr. Weisner's personal involvement in a constitutional violation. Accordingly, because Plaintiff has already had an opportunity to amend — and because it appears to the Court that amendment would be futile — Plaintiff should not be granted leave to amend again. See Ariel (UK) Ltd. v. Reuters Grp., PLC, 277 F. App'x 43, 45-46 (2d Cir. May 6, 2008) (concluding that the district court properly denied leave to amend where plaintiff already amended complaint once, and any amendment would have been futile); Coleman v. brokersXpress, LLC, 375 F. App'x 136, 137 (2d Cir. Apr. 30, 2010) (reaching similar conclusion).
CONCLUSION
Individual Defendant Scott Weisner's motion to dismiss should be GRANTED, and Plaintiff's Third Amended Complaint should be dismissed in its entirety. Plaintiff should not be given leave to amend.
/s/_________
SARAH NETBURN
United States Magistrate Judge DATED: August 5, 2019
New York, New York CC: Nagibe Al-Haj (By Chambers)
ID No. 702987
Kirby Forensic Psychiatric Center
Ward's Island Complex 4 West
600 East 125th Street
New York, NY 10035-6095
Nagibe Al-Haj (By Chambers)
ID No. 702987
Kirby Forensic Psychiatric Center
Ward's Island Complex 2 East
600 East 125th Street
New York, NY 10035-6095
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Caproni. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).