Opinion
9:16-cv-1229 (FJS/TWD)
10-16-2018
HARRY L. FRANKLIN, Plaintiff, v. NATHAN YORK and WARREN COUNTY, Defendants.
APPEARANCES: HARRY L. FRANKLIN Plaintiff, pro se 17 LaClaire Street Hudson Falls, NY 12839 MURPHY BURNS, LLP Counsel for Defendants 407 Albany Shaker Road Loundonville, NY 12211 OF COUNSEL: THOMAS K. MURPHY, ESQ.
APPEARANCES: HARRY L. FRANKLIN
Plaintiff, pro se
17 LaClaire Street
Hudson Falls, NY 12839 MURPHY BURNS, LLP
Counsel for Defendants
407 Albany Shaker Road
Loundonville, NY 12211 OF COUNSEL: THOMAS K. MURPHY, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER
I. INTRODUCTION
This pro se civil rights action, brought under 42 U.S.C. § 1983, has been referred for a report and recommendation by the Hon. Fredrick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule ("L.R.") 72.3(c). Plaintiff Harry Franklin alleges violations of his First Amendment rights to free exercise of his religion and to the free flow of mail while incarcerated at Warren County Correctional Facility ("WCCF" or the "facility"). (Dkt. No. 12.) Defendants are Warren County Sheriff Nathan York ("Sheriff York") and Warren County. Id.
Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 25.) Plaintiff has not opposed Defendants' motion despite the Court granting an extension of time within which to do so. (Dkt. Nos. 27, 28.) For the reasons discussed below, the Court recommends that Defendants' motion be granted.
II. BACKGROUND
Plaintiff identifies as Muslim and has practiced the religion of Islam since 2007. (Dkt. No. 25-9 at 35-36.) From April 15, 2016, through October 19, 2016, Plaintiff was incarcerated at WCCF. Id. at 8-19. Plaintiff claims he was not allowed to have a prayer rug and his religious meals were not served at the times consistent with his religious beliefs. (Dkt. No. 12 at 2-5.) Plaintiff alleges Sheriff York was aware of Plaintiff's problems with his religious meals but failed to correct the problems. Id. at 3-4. Plaintiff also claims he was denied access to some of his personal mail, including mail which contained his prayer schedules. Id. at 2-3. Plaintiff attributes the wrongdoing alleged in the amended complaint to policies that Warren County put in place and that Sheriff York carried out. Id. at 2-5. Plaintiff seeks monetary damages. Id. at 5.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs.
A. Grievance Program
In order to provide an effective and impartial procedure for the timely resolution of inmate complaints, the WCCF maintains a grievance program that is consistent with the regulations governing the New York State Commission of Corrections ("NYSCC"). (Dkt. No. 25-12 at ¶ 6.) An inmate wishing to register a complaint must file a grievance, which is investigated by the Grievance Coordinator, who then issues a determination denying the grievance or accepting the grievance and taking corrective action. Id. at ¶ 7. If the inmate does not accept the determination of the Grievance Coordinator, the inmate may appeal the determination to the facility's Corrections Administrator. Id. at ¶ 8. Within five business days of receiving the grievance appeal, the Corrections Administrator issues a written determination which is provided to the inmate. Id. at ¶ 11. Within five days of receipt of the appeal determination, the inmate may appeal to the NYSCC Citizen's Policy and Complaint Review Council ("CPCRC"). Id. at ¶ 12. The CPCRC reviews the appeal and issues a written determination within forty-five days of receipt of it. Id. at ¶ 13. The CPCRC may make a determination in favor of the inmate, directing the facility to supply an appropriate remedy, or the CPCRC may deny the grievance, sustaining the action taken by the facility's administration. Id.
At all relevant times, non-party Officer Ryan Tourge ("Tourge") served as the Grievance Coordinator and Sheriff York served as the Correction Administrator at the WCCF. Id. at ¶ 9; see also Dkt. No. 25-10; No. 25-11.
B. Prayer Rug
Plaintiff alleges he was not allowed to have a prayer rug. (Dkt. No. 12 at 2.) On April 20, 2016, Plaintiff asked a corrections officer "if personal prayer rugs could be brought into the facility," and the officer replied, "no, because there is a possibility that drugs could be smuggled into the facility by way of the prayer rug." Id. On April 22, 2015, Plaintiff spoke to a sergeant "regarding his prayer rug being brought in" and the sergeant stated he "would look into it" and "get back" to Plaintiff. Id. Plaintiff alleges that as of May 13, 2016, he had not heard from the sergeant or "anyone from administration." Id.
On May 4, 2016, Plaintiff filed an inmate grievance (No. 2016-0456) stating:
I have been asking for permission to have a prayer rug. I wrote the Jail Admin asking if I could have my prayer rug from my home or if one needs to be sent in from a vendor. I made this request at least a week ago with no response as of yet. I kneel and my face has to touch the ground and without it I can't make my prayers.(Dkt. No. 25-2 at 1.) On May 5, 2016, WCCF Grievance Coordinator Tourge advised Plaintiff that he was allowed to have a prayer rug the same size as allowed by the New York State Department of Corrections and Community Supervision ("DOCCS"), and that the prayer rug must come from a vendor whose normal business is selling and shipping such an item. (Dkt. No. 25-11 at ¶¶ 1, 5.) Tourge further advised Plaintiff that he would have to keep the prayer rug in his cell. Id. at ¶ 5. Plaintiff signed and "voided" the grievance. (Dkt. No. 25-2 at 1.)
C. Prayer Schedules
Plaintiff claims he was denied access to some of his personal mail, including mail which contained his prayer schedules. (Dkt. No. 12 at 2.) According to Plaintiff, on May 13, 2016, "prayer schedules were withheld by the [WCCF] that were sent to [him] via United Postal Service. [The] [r]eason given was that mail was downloaded from the Internet and that it could be laced or tainted with drugs." Id. Plaintiff also claims he was "given a Mail Rejection/Disposition Notice with no definitive reason for withholding [the mail]." Id. at 3.
According to Tourge, his review of WCCF's records indicated that on May 13, 2016, the facility received mail for Plaintiff "consisting of four pages of material copies from the internet. That material was prohibited under the facility's policy regarding correspondence." (Dkt. No. 25-11 at ¶ 13.) The relevant portion of the facility's policy provides:
Computer generated correspondence containing typed text only shall be accepted. Any computer generated correspondence containing images, or anything other than typed text, shall be retained with the inmate's secured property for return upon the
inmate's release or destroyed. This does not apply to legal privileged correspondence.Id. Pursuant to the facility's policy, Plaintiff received a Mail Rejection/Disposition Notice identifying the reason the material was withheld. Id. On May 14, 2016, Plaintiff signed the Notice acknowledging receipt. (Dkt. No. 25-8 at 1.) Tourge states Plaintiff did not file a grievance with respect to any complaint involving his mail being withheld. (Dkt. No. 25-11 at ¶ 13.)
D. Religious Meals
Plaintiff claims his religious meals were not served at the times consistent with his religious beliefs. (Dkt. No. 12 at 3-4.) On June 3, 2016, Plaintiff requested permission to receive religious meals in accordance with his Islamic faith during Ramadan, from sundown June 6, 2016, through sundown July 5, 2016. Id. at 3; see also Dkt. No. 25-5 at 5-8. Plaintiff signed a "Religious Diet Inmate Acknowledgement" form on June 8, 2016. (Dkt. No. 25-5 at 7.)
1. Grievance No. 2016-0623
On June 13, 2016, Plaintiff filed a grievance stating, "The hot meals I received at my dinner time have been grossly overcooked. I brought this to the officers on the Pods attention for the last couple of nights." (Dkt. No. 25-3 at 1.) Tourge investigated the matter, accepted the grievance, and proper food handling instructions were communicated to staff. (Dkt. No. 25-11 at ¶ 6; Dkt. No. 25-3 at 1.) Plaintiff accepted the decision by signing Part II of the grievance form. (Dkt. No. 25-3 at 1.)
2. Grievance No. 2016-0638
On June 16, 2016, Plaintiff filed a grievance because his breakfast meal was served "long after dawn." (Dkt. No. 25-4 at 1.) Tourge conducted an investigation and determined Plaintiff had not received his morning meal at the appropriate time, approximately 3:45am. (Dkt. No. 25- 11 at ¶ 7.) Tourge accepted the grievance and reminded staff of the time Ramadan meals need to be served. (Dkt. No. 25-4 at 1.) Plaintiff accepted the decision by signing Part II of the grievance form. Id.
3. Grievance No. 2016-0700
On June 29, 2016, at approximately 4:30am, Plaintiff filed a grievance stating, "Food—breakfast was old and overcooked. Again." (Dkt. No. 25-6 at 9.) As relief, Plaintiff requested "to end religious meals and eat when the rest of the population eats." Id. Tourge investigated the grievance and denied it on the merits because the breakfast complained of was replaced by staff in a timely manner and accepted by Plaintiff. (Dkt. No. 25-11 at ¶ 9.) Plaintiff appealed to Sheriff York, who affirmed the determination on July 7, 2016. (Dkt. No. 25-6 at 12.) On July 8, 2016, Plaintiff appealed to the CPCRC. Id. By letter dated August 11, 2016, the CPCRC advised it had reviewed Plaintiff's grievance and voted to "deny" the grievance stating, "t]he Council sustains the action taken by the facility administration." Id. at 1.
4. Grievance No. 2016-0703
Plaintiff filed a second grievance on June 29, 2016, at approximately 2:30pm, stating:
The facility is trying to dictate how I observe my religious holiday. I asked to eat when the rest of the pod was eating and was denied. I asked the unit officer to call his superior officer to make sure and was denied my lunch. I have other grievances of the same nature. All concerning the practicing of my faith. The same thing happened at dinner also.(Dkt. No. 25-2 at 2.) On July 5, 2016, Tourge denied the grievance on the merits because Plaintiff "requested and was approved to participate in Ramadan. As such his morning meal is given before dawn and his lunch and dinner meal are held until after sunset." Id. During the investigation, Tourge spoke with the facility's Chaplain regarding Plaintiff's request to practice Ramadan by eating when all other inmates eat and the "Chaplain indicated that the practice would go against the fasting requirement of Ramadan." (Dkt. No. 25-11 at ¶ 8.) Plaintiff appealed to Sheriff York, who affirmed the determination on July 7, 2016. (Dkt. No. 25-5 at 3.) On July 8, 2016, Plaintiff appealed to the CPCRC. Id. By letter dated August 11, 2016, the CPCRC advised it had reviewed Plaintiff's grievance and voted to deny the grievance stating, "the Council sustains the action taken by the facility administration." Id. at 1.
I would like this grievance and all other grievances by me to be sent to Inmate Grievance at the Commission of Corrections in Albany. These problems are recurring and nothing is being done. It's cruel and unusual punishment and also a violation of constitutional rights.
5. Grievance No. 2016-0707
On July 4, 2016, Plaintiff filed a grievance stating:
This facility's blatant disregard of my Constitutional rights. On more than one occasion. That is to practice my religion without interference. Which is a God given right and to interfere is a violation of the First Amendment of the United States Constitution.(Dkt. No. 25-7 at 2.) As relief, Plaintiff requested "submission of this grievance and all other grievances on my behalf to the Commissioner of Corrections in Albany, N.Y. Also notice of intent for legal action. Forwarding to my attorney[.]" Id. During the investigation, Plaintiff claimed the facility was "not taking his religion seriously" and he referred to his previous complaints regarding his overcooked meals and the occasion when a morning meal was delivered late. (Dkt. No. 25-11 at ¶ 10.) Tourge denied the grievance on the merits, finding Plaintiff's claim was not supported by evidence. (Dkt. No. 25-7 at 2.) Plaintiff appealed to Sheriff York, who affirmed the decision. Id. at 3. Plaintiff appealed to the CPCRC on July 8, 2016, and by letter dated August 11, 2016, the CPCRC advised it had reviewed Plaintiff's appeal and voted to deny the grievance, sustaining the action taken by Sheriff York and Tourge. Id. at 1.
III. APPLICABLE LEGAL STANDARD
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). In Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff."
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and quotation marks omitted). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
When a party fails to respond to a motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1) determine what material facts, if any, are undisputed in the record; and (2) assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the moving party. Id.; see also Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").
IV. PLAINTIFF'S FAILURE TO COMPLY WITH L.R. 7.1(A)(3)
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). In this case, Plaintiff has failed to respond to Defendants' statement of material facts as required under L.R. 7.1(a)(3).
L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's statement of material facts. Under the rule, the response "shall mirror the movant's statement of material facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises."
Where a party has failed to respond to the movant's statement of material facts, the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to comply with the requirements of Rule 56(e) and L.R. 7.1. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." But see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Plaintiff was provided with the requisite notice of the consequences of his failure to respond to Defendants' summary judgment motion. (Dkt. No. 26.)
This Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute where a nonmovant willfully fails to respond to a properly filed summary judgment motion. Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002). However, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record.
V. ANALYSIS
A. First Amendment Right to Free Exercise of Religion
"Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause." Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). The Second Circuit has held that the Free Exercise Clause protects an inmate's right to participate in religious services, Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993), and "includes their right to meals that comport with religious requirements." Williams v. Doe, 639 F. App'x 55, 56 (2d Cir. 2016).
Those rights, however, are not without limits, and the task of defining the contours requires striking a balance between the rights of prison inmates and the legitimate interests of prison officials responsible for maintaining prison security. O'Lane v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987); Ford, 352 F.3d at 588 (prisoner's free exercise rights are "[b]alanced against . . . the interests of prison officials charged with complex duties arising from administration of the penal system") (quotation marks omitted). Accordingly, a prison inmate's Free Exercise claims are "judged under a reasonableness test less restrictive than that ordinarily applied to the alleged infringements of constitutional rights." Id.
To succeed on a claim under the Free Exercise Clause, the plaintiff must make a threshold showing that the challenged conduct "substantially burdens his sincerely held religious beliefs." Salahuddin, 467 F.3d at 274-75 (citing Ford, 352 F.3d at 591). In determining whether religious beliefs are sincere, "an individual . . . need only demonstrate that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." Ford, 352 F.3d at 588. "[A] substantial burden exists where the state puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." Jolly v. Coughlin, 76 F.3d 468, 476-77 (2d Cir. 1996). Inconvenience alone is insufficient to establish a substantial burden. Singh v. Goord, 520 F. Supp. 2d. 487, 498 (S.D.N.Y. 2007) (citation omitted). Id. Furthermore, the substantial burden test presupposes that some inconveniences may be so minor that they do not amount to a violation. See McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004) (discussing in a footnote the applicability of the "time-honored maxim 'de minimis non curat lex'"). However, the court should not attempt to engage in resolving disputes as to whether a particular practice is "central" or "mandatory" to a particular religion in determining whether a burden was substantial. See Ford, 352 F.3d at 593-94.
Although the Second Circuit has applied the "substantial burden" test in its most recent prison free exercise cases, it has done so while explicitly refusing to adopt or endorse the test. See Williams, 639 F. App'x at 56 ("We have not yet decided whether a prisoner asserting a free-exercise claim must, as a threshold requirement, show that the disputed conduct substantially burdened his sincerely held religious beliefs."); Holland v. Goord, 758 F.3d 215, 220-21 (2d Cir. 2014) (declining to decide whether a prisoner must show, as a threshold matter, that the defendants' conduct substantially burdened his sincerely held religious beliefs in connection with a First Amendment free exercise claim). In the absence of any controlling precedent to the contrary, courts in this District have continued to apply the substantial burden test. See, e.g., Wright v. Stallone, No. 9:17-CV-0487 (LEK/TWD), 2018 WL 671256, at *9 (N.D.N.Y. Jan. 31, 2018) (applying substantial burden test); Berisha v. Farrell, No. 9:13-CV-1191 (LEK/ATB), 2016 WL 1295178, at *3 (N.D.N.Y. Mar. 8, 2016) (same); Skates v. Shusda, 9:14-CV-1092 (TJM/DEP), 2016 WL 3882530, at *4 & n.6 (N.D.N.Y. May 31, 2016) (same). This Court will do the same.
Once a plaintiff establishes that a sincerely held religious belief has been substantially burdened by a practice of prison officials infringing upon the religious belief, "[t]he defendants then bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct; the burden remains with the prisoner to show that these articulated concerns were irrational." Salahuddin, 467 F.3d at 275 (quoting Ford, 352 F.3d at 595) (punctuation omitted). To make that determination, a court must consider:
whether the challenged official action has a valid, rational connection to a legitimate governmental objective; whether prisoners have alternative means of exercising the burdened right; the impact on guards, inmates, and prison resources of accommodating the right; and the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.Holland, 785 F.3d at 222-23 (quoting Salahudin, 467 F.3d at 274, citing Turner v. Safley, 482 U.S. 78, 89-91 (1987)). 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, 467 F.3d at 272 n.4 ("An individualized decision to deny a prisoner the ability to engage in religious exercise is analyzed in the same way as a prison regulation denying such exercise.").
Here, Plaintiff identifies as Muslim and has practiced the religion of Islam since 2007. (Dkt. No. 25-9 at 35-36.) Plaintiff claims he was denied a prayer rug, prayer schedules, and religious meals in violation of his First Amendment rights to free exercise of his religion and free flow of mail while confined at the WCCF. (Dkt. No. 12 at 2-5.) Defendants do not challenge the sincerity of Plaintiff's religious beliefs. Rather, they argue Plaintiff cannot establish Defendants substantially infringed upon Plaintiff's ability to practice his religion while confined at the WCCF. (Dkt. No. 25-13 at 5-12.)
1. Prayer Rug
Plaintiff alleges he was denied a prayer rug at the WCCF. (Dkt. No. 12 at 2.) The record belies his claim. Defendants have submitted evidence that Plaintiff was expressly instructed on how to procure a prayer rug from an approved vendor and, that once obtained, he would need to keep it in his cell at all times. (Dkt. No. 25-2 at 1; 25-11 at ¶ 4.) Subsequently, Plaintiff voided his "prayer rug" grievance (No. 2016-0456). (Dkt. No. 25-2 at 1.) During his deposition, Plaintiff clarified that he "didn't ask for permission for a prayer rug, I asked for permission for my prayer rug." (Dkt. No. 25-9 at 41, emphasis added.) Plaintiff admitted, however, that he was informed personal prayer rugs could not be brought into the facility due to safety issues. Id. at 41-42; see also Dkt. No. 12 at 2.
The Court notes at least one other court has upheld a jail's restriction on personal prayer rugs, where, inter alia, the plaintiff acknowledged that "absent his personal prayer rug, he was afforded other opportunities and accommodation to practice his faith[.]" See Shelton v. El Paso Cty., No. EP-O8-CV-26-DB-ML, 2010 WL 3503511, at *3 (W.D. Tex. Sept. 1, 2010).
Even viewed in the light most favorable to Plaintiff, a rational trier of fact could not reasonably find in favor of Plaintiff on this issue based on the evidence in the record. See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (an inmate bears the burden of showing that a correctional institution's policy substantially burdens his ability to exercise his religion). Therefore, the Court recommends that Defendants' motion be granted as to this claim.
2. Religious Meals
Plaintiff also claims his religious needs were not met during Ramadan. (Dkt. No. 12 at 3-4.) Specifically, Plaintiff claims (1) evening meals were "overcooked" on or about June 13, 2016; (2) one morning meal was delivered late on June 16, 2016; and (3) one morning meal was "old" and "overcooked" on June 29, 2016. Id. While a prisoner has a constitutional right to a "diet consistent with his or her religious scruples," Ford, 352 F.3d at 597, "isolated deprivations of a religious meal have historically been found to impose only de minimis burdens on an inmate's free exercise rights." Wells v. McKoy, No. 9:16-CV-405 (GTS/ATB), 2018 U.S. Dist. LEXIS 77516, at *24 (N.D.N.Y. May 7, 2018) (citing McEachin, 357 F.3d at 203 ("[t]here may be inconveniences so trivial that they are most properly ignored")), report-recommendation adopted by 2018 U.S. Dist. LEXIS 162429 (N.D.N.Y. Sept. 24, 2018); see, e.g., Washington v. Afify, 968 F. Supp. 2d 532, 538-39 (W.D.N.Y. Sept. 3, 2013) (holding denial of three consecutive Ramadan meals, including two breakfasts and one evening meal, does not violate the First Amendment); Jean-Laurent v. Los, No. 12-CV-132S(F) (WMS/LGF), 2015 WL 1015383, at *6-7 (W.D.N.Y. Mar. 9, 2015) ("missing two of the Ramadan meals . . . does not constitute a violation of Plaintiff's First Amendment right to the free exercise of his religion"); see also Odom v. Dixion, No. 04-CV-889 (LGF), 2008 WL 466255, at *10-12 (W.D.N.Y. Feb. 15, 2008) (holding failure to provide kosher meals on seven occasions was not a substantial burden to establish a First Amendment claim).
The Court is cognizant of the Second Circuit's recent decision which criticized the line of cases holding that an inmate's allegation that he was deprived of five religious meals over the course of the month plausibly alleged a substantial burden on his religious practice. See Williams, 639 F. App'x at 57. The case at bar is readily distinguishable from Williams. First, Plaintiff has not alleged he was outright denied meals during Ramadan. Rather, Plaintiff claims two meals were ill prepared and one was delivered "late." (Dkt. No. 12 at 2-3.) More significantly, Williams involved a motion to dismiss, whereas Defendants have moved for summary judgment in this case after the completion of discovery. As a result, the record in this case is well developed regarding the burden, if any, imposed on Plaintiff's observance of Ramadan as described in his deposition testimony.
In this case, out of the approximately fifty-nine meals served during Ramadan, Plaintiff alleges only one breakfast was brought to him after dawn. (Dkt. No. 12 at 3.) As such, the Court finds Plaintiff suffered, at most, de minimis harm. As to the other meals Plaintiff takes issue with, Plaintiff complains only that his meals were overcooked and the record demonstrates Tourge investigated each reported incident and issued a written directive and verbal instructions to the WCCF staff regarding heating and delivering religious meals. Id.; Dkt. No. 25-11 at ¶¶ 6-7. Even when viewed in the most favorable light, Plaintiff has failed to show a substantial burden on his religious beliefs. Therefore, the Court recommends that Defendants' motion be granted as to this claim.
3. Prayer Schedule
Plaintiff alleges Defendants interfered with his religious practice by denying his constitutional right to personal correspondence, which contained prayer schedules. (Dkt. No. 12 at 5.) Specifically, Plaintiff testified he was unable to complete his five daily prayers because he was denied his prayer schedules. (Dkt. No. 25-9 at 47.) Defendants argue that withholding Plaintiff's prayer schedule did not substantially infringe on his ability to practice his religion as he was free to obtain one in a different format. (Dkt. No. 25-13 at 9.)
"[A] substantial burden on religious exercise exists when an individual is required to 'choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion . . . on the other hand.'" Smith v. Goord, 541 F. App'x 133, 134 (2d Cir. 2013) (quoting Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007)). According to Plaintiff, he was aware that a prayer schedule was acceptable so long as it did not contain images downloaded from the internet. (Dkt. No. 25-9 at 56-57.) Plaintiff testified that he made no other attempts to obtain a prayer schedule while incarcerated at the WCCF. Id. at 56-57.
Even when viewed in the most favorable light, Plaintiff has failed to show a substantial burden on his religious beliefs. See Neal v. Byrne, No. 06-CV-6250 (CJS), 2009 WL 3254908, at *15-17 (W.D.N.Y. Oct. 7, 2009) (finding plaintiff could not establish a substantial burden on his religious practice when prison officials banned him from receiving oils via mail as they remained available to him through other sources). Therefore, the Court recommends that Defendants' motion be granted as to this claim.
B. First Amendment Right to Free Flow of Non-Legal Mail
It is clear that a prisoner's First Amendment rights are implicated when the "free flow of incoming and outgoing mail" is hindered. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). However, the right to the free flow of mail does not provide for the unfettered free flow of mail. Id. Reasonable restrictions to the free flow of mail are allowed, provided the restrictions "further[ ] one or more of the substantial governmental interests of security, order, and rehabilitation . . . and must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Id. (quoting Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986)).
"To establish a claim for interference with regular, non-legal mail in violation of the First Amendment, an inmate 'must show a pattern and practice of interference that is not justified by any legitimate penological concern.'" Singleton v. Williams, No. 12 Civ. 02021 (LGS), 2014 WL 2095024, at *3 (S.D.N.Y. May 20, 2014) (citation omitted). The Second Circuit has stated that an "isolated incident of mail tampering is usually insufficient to establish a constitutional violation." Id. (quoting Davis v. Goord, 320 F.3d at 351).
Here, Plaintiff fails to demonstrate a pattern and practice of interference with his incoming, non-legal mail. Indeed, Plaintiff complains of a single instance of mail being withheld on May 13, 2016. (Dkt. No. 12 at 2.) Therefore, the Court recommends granting Defendants' motion for summary judgment on this claim. See, e.g., Cancel v. Goord, No. 00-CIV-2942 (LMM), 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001) (finding that neither one instance of interference with incoming, non-legal mail nor two instances of mail interference with incoming, legal mail amount to a pattern and practice of mail interference).
C. Supervisory Liability
Plaintiff brings a supervisory liability claim against Sheriff York. (Dkt. No. 12 at 3-4.) He is the duly elected Sheriff for Warren County, having first been elected in 2007. (Dkt. No. 25-10 at ¶ 1.) The Warren County's Sheriff's Office operates a civil division, provides law enforcement services on a County-wide basis and operates the WCCF pursuant to State mandate. Id. at ¶ 2. As Sheriff, he manages and oversees the Sheriff's Office delegating the day-to-day operations of the separate division to subordinate officers. Id. at ¶ 3. The operation of the WCCF is the responsibility of a Division Commander and a staff consisting of approximately seventy-five corrections officers. Id. at ¶ 4.
The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (noting that a defendant may not be held liable in a § 1983 action merely because he or she held a high position of authority). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where:
(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 of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
The Second Circuit has thus far expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
Here, because the Court finds Plaintiff's underlying First Amendment claims are without merit, "none of the above bases for supervisory liability are applicable." Thompson v. Carlsen, No. 9:08-CV-487 (TJM/RFT), 2010 WL 843872, at *7 (N.D.N.Y. Mar. 10, 2010) (citing Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir. 1999) ("Of course, for a supervisor to be liable under Section 1983, there must have been an underlying constitutional deprivation.")). Therefore, the Court recommends that Defendants' motion be granted as to this claim.
D. Municipal Liability
Plaintiff brings a claim against Warren County for municipal liability under Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, (1978). It is well established that a Monell claim cannot lie in the absence of an underlying constitutional violation. See Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) ("Monell does not provide a separate cause of action . . . it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.") (emphasis in original). Thus, "[a]bsent an underlying constitutional violation, a Monell claim cannot lie." Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *6 (S.D.N.Y. July 3, 2013); see also Bolden v. Cty. of Sullivan, 523 F. App'x 832, 834 (2d Cir. 2013) (summary order) ("[B]ecause the district court properly found no underlying constitutional violation, its decision not to address the [c]ounty defendants' liability under Monell was correct.").
Here, inasmuch as the Court finds Plaintiff's underlying First Amendment claims are without merit, there is no basis for extending liability to Warren County. Therefore, the Court recommends that Defendants' motion be granted as to this claim.
E. Qualified Immunity
Sheriff York also contends he is entitled to qualified immunity. (Dkt. No. 25-13 at 12-13.) Inasmuch as the Court is recommending that Defendants' motion for summary judgment be granted in its entirety, it finds it unnecessary to reach the qualified immunity argument.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 25) be GRANTED; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
SO ORDERED. Dated: October 16, 2018
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge