Opinion
Civil Action No. 9:06-CV-00401 (FJS/DEP)
08-31-2011
RANDOLPH SMITH, Plaintiff, v. DR. LESTER WRIGHT, Deputy Commissioner for Health Services; DR. PAULANO, Chief Medical Officer, Great Meadows Correctional Facility; DR. SILVERBERG, Physician, Great Meadows Correctional Facility; JANE DOE, Acting Nurse Administrator, Great Meadows Correctional Facility; and JOHN DOE, Director of Ministerial Services, Defendants.
FOR PLAINTIFF: RANDOLPH SMITH, Pro Se FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York OF COUNSEL: CATHY Y. SHEEHAN, ESQ Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF:
RANDOLPH SMITH, Pro Se
FOR DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State
of New York
OF COUNSEL:
CATHY Y. SHEEHAN, ESQ
Assistant Attorney General
HON. DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT, RECOMMENDATION AND ORDER
Pro se plaintiff Randolph Smith, a former New York state prison inmate, brings this action against three named individuals and two unidentified "Doe" defendants pursuant to 42 U.S.C. § 1983 claiming violation of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution as well as the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc. In support of his claims Smith maintains that he was unlawfully placed and kept in medical keeplock based upon his refusal, on religious grounds, to submit to a Purified Protein Derivative ("PPD") test for tuberculosis ("TB").Plaintiff contends that the current version of the controlling prison policy for TB testing, even though it allows for alternative testing of religious objectors, unlike earlier versions, is unconstitutional both as drafted and as was applied to his particular situation since it resulted in his confinement in segregated housing for some seven months due to his religious-based refusal to be tested. As relief, plaintiff's amended complaint seeks both compensatory and punitive damages as well as declaratory relief.
The PPD test involves injection of a TB derivative between layers of the skin. In the event of a reaction to the injection, including skin thickening with a measurable induration, it is determined the individual has most likely been infected with latent tuberculosis, meaning that he or she has been exposed to TB and as a result has contracted the disease even though not necessarily exhibiting its symptoms. See generally Selah v. Goord, 255 F. Supp. 2d 42, 45-46 (N.D.N.Y. 2003). DOCCS inmates are required to undergo PPD testing at three different points: upon entering into prison, annually thereafter, and additionally in the event the inmate is identified as part of a contact trace. Id. at 54.
Currently pending before the court is defendants' motion to dismiss plaintiff's amended complaint for failure to state a claim upon which relief may be granted. At the heart of defendants' motion is their contention that plaintiff's complaint fails adequately to set forth their involvement in the constitutional violations alleged to support a finding of liability.
Having carefully considered both defendants' motion to dismiss and plaintiff's opposition, I recommend a finding that plaintiff has not alleged sufficient facts to state plausible cause of action under the Eighth Amendment and the due process clause of the Fourteenth Amendment, but that his First Amendment and RLUIPA claims are sufficiently pleaded to pass muster under the controlling standard. I also recommend dismissal of certain of plaintiff's claims against the defendants based upon the lack of their involvement in the conduct giving rise to the particular cause of action, of certain claims based upon qualified immunity, and of plaintiff's remaining claims for prospective relief for lack of standing. I. BACKGROUND
In light of the procedural posture of the case, the following recitation of facts has been drawn principally from plaintiff's complaint, Dkt. No. 1, as well as the materials submitted by the plaintiff in opposition to the defendants' motion, Dkt. No. 52, to the extent they are consistent with the allegations set forth in his complaint. See Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.). While plaintiff's amended complaint is the operative pleading and the object of defendants' motion, superceding his earlier filed complaint, see Harris v. City of New York, 186 F.3d 243, 249 (2d Cir. 1999), I have also considered the contents of plaintiff's initial complaint when evaluating the plausibility of his claims. Hale v. Rao, No. 9:08-CV-1612, 2009 WL 3698420, at *3 n.8 (N.D.N.Y. Nov. 3, 2009) (Hurd, D.J. and Lowe, M.J.) ("[I]n cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside the complaint to the extent they are consistent with the allegations in the complaint.)
Prior to September 2010 when, according to publically available information, he was released on parole, plaintiff was an inmate entrusted to the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") (formerly the New York State Department of Correctional Services, or the "DOCS"). At the times relevant to his claims, plaintiff was designated by the DOCCS to the Great Meadows Correctional Facility ("Great Meadows"), located in Comstock, New York. Plaintiff is a practicing Rastafarian. Amended Complaint (Dkt. No. 36) ¶ 11.
See nysdocslookup.docs.state.ny.us (screenshot attached); see also Amended Complaint (Dkt. No. 36) (notifying the court of the plaintiff's present apartment address listed on the docket sheet).
Among the DOCCS policies in effect at the relevant times is a provision, on occasion referred to as DOCCS Health Services Policy No. 1.18, requiring TB testing for DOCCS inmates. See generally Amended Complaint (Dkt. No. 36). Under the DOCCS TB testing policy, as revised effective on June 21, 2004, inmates who refuse PPD testing are put on tuberculin hold and offered testing daily for one week, weekly for one month, and thereafter monthly until acceptance. See DOCCS Health Services Policy No. 1.18 at § IV. Inmates placed on tuberculin hold receive monthly medical assessments and weight checks, and chest x- rays every six months. Id. Inmates whose monthly assessments and chest x-rays are all negative for TB may be released one year after admission to tuberculin hold. See id. While on tuberculin hold, an inmate is required to remain in his or her cell at all times with the exception of one hour of solitary recreation daily and three solitary showers per week. See id.; see also Redd v. Wright, 597 F.3d 532, 533 (2d Cir. 2010).
The DOCCS' Health Services Policy No. 1.18 was submitted to the court in connection with an earlier motion for summary judgment. See Klopf Decl. (Dkt. No. 12-4) Exh. A. Although the policy is not attached as an exhibit to plaintiff's complaint, the court nonetheless may properly take judicial notice of it since it is prominently referenced in and forms an integral part of plaintiff's amended complaint, and in fact appears in the record in this case. See Holowecki v. Federal Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006); Coleman v. B.P. Sulzle, Inc., 402 F. Supp. 2d 403, 417 (N.D.N.Y. 2005).
The DOCCS' TB testing protocol was first established in November of 1991, based upon findings issued by the New York State Department of Health and the Centers for Disease Control of the United States Public Health Service. Jolly v. Couglin, 76 F.3d 468, 471 (2d Cir. 1996). The DOCCS TB testing policy, the centerpiece of which is yearly PPD testing of inmates, was modified somewhat in 1996 in light of the Second Circuit's decision in Jolly. Reynolds v. Goord, 103 F. Supp. 2d 316, 328-331 (S.D.N.Y. 2000).
The policy at issue includes a specific provision for those inmates with religious objections to the PPD testing. DOCCS Health Services Policy No. 1.18 at § VII. Where an inmate refuses the PPD test for this reason, he or she will be placed on tuberculin hold immediately, pending a determination by the DOCCS as to the legitimacy of the objection, which determination is to be made within sixty days. See id. The Chief Medical Officer ("CMO") of the DOCCS is responsible for evaluating the situation, including the results of an investigation that is required to be conducted by the DOCCS Director of Ministerial Services, and determine what accommodation, if any, is possible; the inmate must be informed of that determination within sixty days of the commencement of the TB hold. See id. If it is determined that the inmate's sincerely held religious beliefs precludes his or her submission to PPD testing, the policy allows the CMO to order a blood test as an accommodation, which is to be performed as expeditiously as possible. See DOCCS Health Services Policy No. 1.18 at § VII. The inmate may be released from TB hold when the results of the blood test, chest x-ray, and physical examination do not indicate the presence of latent TB.
Because as a practicing Rastafarian plaintiff's religious beliefs prohibit the injection of foreign substances into his body, apparently as a preemptive measure plaintiff objected to PPD testing on religious grounds through "grievance channels" on January 12, 2006, requesting that alternative procedures be utilized to screen him for the disease. Amended Complaint (Dkt. No. 36) ¶ 11. Plaintiff was formally summoned to the clinic at Great Meadow for TB testing on January 25, 2006, and again on February 24, 2006; on both occasions he refused to be tested on religious grounds and requested alternative testing consistent with his beliefs. Id. at ¶¶ 12-13. Following the second refusal, plaintiff was placed in medical keeplock on TB hold. Id. at ¶ 13.
Plaintiff's original complaint cited February 24, 2006 as the date of his first refusal to be tested. See Complaint (Dkt. No. 1) p. 3.
Generally speaking, keeplock is a form of confinement restricting an inmate to his or her cell, separating the inmate from others, and depriving him or her of participation in normal prison activities. Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989); Warburton v. Goord, 14 F. Supp. 2d 289, 293 (W.D.N.Y. 1998) (citing Gittens); Tinsley v. Greene, No. 95-CV-1765, 1997 WL 160124, at *2 n. 2 (N.D.N.Y. Mar. 31, 1997) (Pooler, D.J. & Homer, M.J.) (citing, inter alia, Green v. Bauvi, 46 F.3d 189, 192 (2d Cir. 1995)). The DOCCS TB testing policy has a specific provision dictating the parameters of TB keeplock. See Health Services Policy No. 1.18 § IV.A.4.c.
While in keeplock plaintiff submitted several grievances and less formal complaints regarding his circumstances, on each occasion emphasizing that he was entitled to alternative testing. See generally Amended Complaint (Dkt. No. 36). Just two days after his placement in medical keeplock, plaintiff submitted a formal complaint to DOCCS Commissioner Glenn Goord, asserting that he was unlawfully being held in keeplock. Id. at ¶ 14. Having received no response to either his January 12, 2006 grievance or his February 26, 2006 complaint to the DOCCS Commissioner, on February 28, 2006 plaintiff filed a second grievance, reiterating his objection to medical keeplock and requesting an alternative procedure for the testing. Id. at ¶ 15.
Former DOCCS Commissioner Goord was originally named as the sole defendant in this action, but was dismissed from the action on motion for summary judgment based upon lack of personal involvement. See Dkt. Nos. 22, 27. That determination was upheld on appeal to the United States Court of Appeals for the Second Circuit, although the matter was remanded with instructions to permit the plaintiff to amend his complaint to assert claims against other defendants more directly responsible for any alleged religious deprivations. See Mandate, dated June 10, 2010 (Dkt. No. 32).
Plaintiff pursued the issue further by submitting a complaint on March 1, 2006 to Stephen Bernardi, the DOCCS Deputy Commissioner for policy and compliance, regarding his circumstances. Amended Complaint (Dkt. No. 36) ¶ 16. Plaintiff followed that with a second formal complaint to Commissioner Goord on March 28, 2006, objecting to the manner in which the DOCCS Health Services Policy No. 1.18 was being administered at Great Meadow, arguing that the plain and unambiguous terms regarding alternative testing for religious objectors was being disregarded. Id. at ¶ 19.
Plaintiff commenced this action on March 29, 2006, complaining of the manner in which Health Services Policy No. 1.18 was being applied in his case. Amended Complaint (Dkt. No. 36) ¶ 20. On that same date, Smith received an answer from the superintendent at Great Meadow, denying his January 12, 2006 grievance. Id. at ¶ 21.
Plaintiff subsequently received a decision from the Central Office Review Committee ("CORC") denying his February 28, 2006 grievance. Amended Complaint (Dkt. No. 36) ¶ 22. The following day, Smith complained to Commissioner Goord regarding the denial, arguing that his grievance was based on two federal court opinions, both finding the practice under Health Services Policy No. 1.18 of holding prisoners in confinement for lengthy periods after exercising religious beliefs in connection with TB testing to be unconstitutional. Id. at ¶ 23.
Although the plaintiff does not specify in his amended complaint the cases referenced in his communication to the Commissioner, it may be that he is relying upon Reynolds v. Goord, 103 F. Supp. 2d 316 (S.D.N.Y. 2000) (denying defendants' motion for summary judgment with regard to the plaintiff's First Amendment challenge to the 1996 health services policy) and Selah v. Goord, 255 F. Supp. 2d 42 (granting the plaintiff's motion for a preliminary injunction preventing the DOCS from administering the PPD test to him during the pendency of that lawsuit based upon his sincerely held religious beliefs and finding that plaintiff may succeed on a First Amendment challenge to the policy as applied to him).
Not satisfied with the responses to his grievances and still in medical keeplock, plaintiff continued to file complaints. On August 1, 2006, plaintiff lodged a complaint with Dr. Lester Wright, the DOCCS Deputy Commissioner for Health Services, complaining that the failure of prison officials to provide him with an alternative testing procedure was infringing on his religious beliefs and demanding immediate intervention and corrective action. Amended Complaint (Dkt. No. 36) ¶ 26. That complaint was referred to Steven Van Buren, the Regional Heath Services Administrator for the DOCCS. Id. at ¶ 27. By letter dated August 22, 2006, Van Buren advised the plaintiff that his complaint regarding misapplication of Health Services Policy No. 1.18 was being denied. Upon receipt of that denial, plaintiff filed a formal complaint with an unnamed member of the Great Meadows medical staff, arguing that he should be released from keeplock since it was clear from x-ray results that he did not pose a risk to the general prison population. Id. at ¶ 28.
On September 11, 2006, plaintiff received a written communication from Steven H. Schwartz, Assistant Attorney General, which included a "declaration of special interest in this action." Amended Complaint (Dkt. No. 36) ¶ 29. That month plaintiff learned that the DOCCS Health Services Policy No. 1.18 had been misapplied in his case apparently as a result of a misinterpretation of the policy by a nurse administrator at Great Meadows. Amended Complaint (Dkt. No. 36) ¶ 29. A second x-ray was taken of plaintiff on September 12, 2006, and an alternative blood test was administered on September 20, 2006. Id. at ¶¶ 29-32. The TB hold of the plaintiff was rescinded on October 6, 2006 by Dr. Paulano, a defendant in the action, and plaintiff was released to general population. Id. at ¶33.
Since this letter is not before the court it is unclear precisely what it contained, and specifically what is meant by the plaintiff when utilizing that phrase.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on March 29, 2006, soon after being confined to medical keeplock, and was thereafter granted leave to proceed in forma pauperis. Dkt. Nos. 1, 6. The only named defendant in Smith's original complaint, which asserted violations of his rights under the RLUIPA and to the free exercise of his religion under the First Amendment, was former DOCCS Commissioner Goord.
Defendant Goord answered the complaint and soon thereafter moved for summary judgment on the ground that plaintiff had not made any showing of his personal involvement in any constitutional deprivations. Dkt. No. 12. The court granted defendant's motion and dismissed the complaint in its entirety. Dkt. Nos. 22, 27. Upon appeal to the United States Court of Appeals for the Second Circuit, however, while the judgment dismissing defendant Goord from the action was affirmed, the Second Circuit remanded the action to this court with instructions to allow plaintiff an opportunity to amend his complaint in effort to state claims against individual staff members at Great Meadows responsible for the alleged misapplication of the controlling DOCCS policy. Dkt. No. 32.
On September 17, 2010, plaintiff filed an amended complaint naming as defendants, in both their official and individual capacities, Dr. Lester Wright, Deputy Commissioner for Health Services for the DOCCS; Dr. Paulano, the chief medical officer at Great Meadows; Dr. Silverberg, plaintiff's primary care provider; John Doe, the DOCCS Director for Ministerial Services; and Jane Doe, an acting nurse administrator at Great Meadows. Dkt. No. 36.
In response to plaintiff's amended complaint, the newly-named defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) for its dismissal on the grounds that 1) the plaintiff has failed to state a cognizable claim under the First, Eighth, or Fourteenth Amendments; 2) plaintiff has failed to establish their personal involvement in the constitutional violations alleged; 3) the state officials sued in their official capacities are entitled to Eleventh Amendment immunity; and 4) the defendants are protected from suit by the doctrine of qualified immunity. Dkt. No. 49. Plaintiff has since responded in opposition to the defendants' motion. Dkt. No. 52.
Defendants' motion is now ripe for determination and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Standard of Review
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, 129 S. Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974).
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.2003), cert. denied, 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y.2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, " 'but whether the claimant is entitled to offer evidence to support the claims.' " Log On Am., Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp. 2d 435, 441 (S.D.N.Y.2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995)) (citations and quotations omitted).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus, 551 U.S. 89, 94 127 S. Ct. 2197, 2200 (2007) (" '[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers' ") (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976) (internal quotations omitted)); Davis v. Goord, 320 F.3d 346, 350 (2d Cir.2003) (citation omitted); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y.2004) (Hurd, J.). In the event of a perceived deficiency in a pro se plaintiff's complaint, a court should not dismiss without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991); see also Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires").
B. Eleventh Amendment Immunity
In their motion defendants' seek dismissal of all claims against them in their official capacities, arguing that as state officials they are entitled to the immunity afforded under the Eleventh Amendment.
The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 3057-58 (1978). This absolute immunity which states enjoy under the Eleventh Amendment extends both to state agencies, and in favor of state officials sued for damages in their official capacities when the essence of the claim involved seeks recovery from the state as the real party in interest. Richards v. State of New York Appellate Division, Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing Pugh and Cory v. White, 457 U.S. 85, 89-91, 102 S. Ct. 2325, 2328-29 (1982)). To the extent that a state official is sued for damages in his official capacity the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S. Ct. 3099, 3105 (1985); Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991). Moreover, it is clear Congress did not abrogate New York's Eleventh Amendment immunity by enacting section 1983. Quern v. Jordan, 440 U.S. 332, 343-45, 99 S. Ct 1139, 1147-49 (1979).
In a broader sense, this portion of defendants' motion implicates the sovereign immunity enjoyed by the State. As the Supreme Court has reaffirmed relatively recently, the sovereign immunity enjoyed by the states is deeply rooted, having been recognized in this country even prior to ratification of the Constitution, and is neither dependent upon nor defined by the Eleventh Amendment. Northern Ins. Co. of New York v. Chatham County, 547 U.S. 189, 193, 126 S. Ct. 1689, 1693 (2006).
By contrast, the Eleventh Amendment does not establish a barrier against suits seeking to impose individual or personal liability on state officials under section 1983. See Hafer, 502 U.S. at 30-31, 112 S. Ct. at 364-65.
Since plaintiff's damage claims against the named defendants in their official capacities are in reality claims against the State of New York, thus exemplifying those against which the Eleventh Amendment protects, they are subject to dismissal. Daisernia v. State of New York, 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.). Those claims are therefore subject to dismissal. The defendants are not, however, necessarily entitled to dismissal of all claims asserted against them in their official capacities; plaintiff's complaint seeks declaratory relief and appropriate equitable relief, which could in theory include an injunction against defendants' implementation of Health Services Policy No. 1.18 in the event that it is found to be unconstitutional as written. To the extent such declaratory and equitable relief may be available to the plaintiff, the defendants are properly named in their official capacities for purposes of effectuating that relief. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S. Ct. 899, 903 (2004) ("[T]he Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law.") (citations omitted).
C. Eighth Amendment Claim
Among the claims raised by the plaintiff is one bottomed on the Eighth Amendment's prohibition against cruel and unusual punishment. That claim is based upon plaintiff's contention that by subjecting him to keeplock confinement for in excess of seven months, exposing him to conditions normally reserved for those committing serious acts of misconduct warranting disciplinary action, he was subjected to cruel and unusual punishment. Defendants now seek dismissal of that claim.
The Eighth Amendment prohibits punishment that involves the "unnecessary and wanton infliction of pain" and is incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle, 429 U.S. at 102, 104, 97 S. Ct. at 290, 291; see also Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981)). To satisfy their obligations under the Eighth Amendment, prison officials must "ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Farmer, 511 U.S. at 832, 114 S. Ct. at 1976 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S. Ct. 3194, 3200 (1984)) (internal quotations omitted).
A claim alleging that prison officials have violated the Eighth Amendment by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, No. 07-CV-2634 (JFB/ARL), 2010 WL 889787, at *7-8 (E.D.N.Y. Mar. 8, 2010). Addressing the objective element, to prevail a plaintiff must demonstrate that the conditions of his confinement result in unquestioned and serious deprivations of basic human needs. Delisser v. Goord, No. 09CV00073FJSGLS, 2003 WL 133271 at *6 (N.D.N.Y. Jan. 15, 2003) (Scullin, S.J. and Sharp, M.J.) (citing Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir.1985)). With respect to the subjective element, a plaintiff must also demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In this instance, plaintiff's complaint does not provide factual context regarding his keeplock confinement. The complaint does not indicate, for example, whether Smith was confined to a regular cell in general population, or instead to a special housing unit ("SHU") cell at Great Meadow during the TB isolation. Nor does his complaint disclose whether he was in a single or double cell, or whether he was afforded the recreation and shower privileges to which he was entitled under the DOCCS TB policy. More importantly, other than the loss of movement and privileges, plaintiff does not allege any condition to which he was subjected that resulted in the deprivation of a basic human need. See Delisser, 2003 WL 133271 at *6; Lee v. Frederick, 519 F. Supp. 2d. 320, 327 (W.D.N.Y. 2007). This omission is fatal, particularly in view of cases holding that confinement in keeplock under normal conditions does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. See, e.g, Bunting v. Nagy, 452 F. Supp.2d 447, 455 (S.D.N.Y. 2006) (citing Ortiz v. McBride, 380 F.3d 649, 655 (2d Cir. 2004)); Harris v. Russett, No. 02 Civ. 6481, 2006 WL 2239693, at *3 (S.D.N.Y. Aug. 4, 2006) (citing Sealey v. Gittner, 197 F.3d 578, (2d Cir. 1999)).
Prisoners may be placed in SHU for a variety of reasons, including though not limited to those relating to discipline. Lee v. Coughlin, 26 F. Supp. 2d 615, 618 (S.D.N.Y. 1998) (quoting, inter alia, 7 N.Y.C.R.R. § 301.6); 7 N.Y.C.R.R. § 301.7. Inmates in SHU are not completely restricted. Husbands v. McClellan, 990 F. Supp. 214, 217 (W.D.N.Y. 1998); see also 7 N.Y.C.R.R. pt. 304. They are allowed two showers per week and one of hour of outdoor exercise per day, are entitled to unlimited legal visits and one non-legal visit per week, have access to counselors and sick call, and additionally can participate in cell study programs and receive books from the library. Id.
Health Services Policy §1.18(IV)(A) (4)(c) provides that "[i]nmates on Tuberculin Hold must remain in their cell at all times except for one hour of solitary recreation per day and three solitary showers per week. Leaving their cell for telephone calls is not permitted. Any exception to the above must be cleared through the Deputy Commissioner/Chief Medical Officer or designee."
In addition to failing to meet the objective prong of the Eighth Amendment test, plaintiff's allegations similarly fail to establish the requisite degree of subjective culpability on the part of the defendants. Plaintiff's complaint, as amended, makes only conclusory allegations of "reckless indifference" in the grievance process, resulting in the denial of his request for alternative testing and, ultimately, his prolonged confinement in medical keeplock. Although reckless indifference could suffice to support an Eighth Amendment claim if coupled with allegations of a subjective awareness of a substantial risk of harm to the inmate, Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (citing Farmer, 511 U.S. at 839-40, 114 S. Ct. 1970), it is clear that this allegation is directed at the procedural remedies within the prison, not the physical conditions experienced while in keeplock. Nothing in the complaint alleges or even suggests that any defendant deliberately misapplied Heath Services Policy No. 1.18 in order to punish Smith, or that such punishment was intended to subject him to an excessive risk of harm. Instead, the pleadings show, at best, only that someone at Great Meadows seemingly failed to properly follow the DOCCS TB testing procedures. For these reasons, I find plaintiff's allegations insufficient to support a plausible cruel and unusual punishment claim under either the objective or subjective prong of the Eighth Amendment test, and therefore recommend that plaintiff's Eighth Amendment claims be dismissed.
To the extent plaintiff's complaint can be read to make a claim under the Eighth Amendment for verbal harassment to which he may have been subjected as a result of his failure to submit to the PPD screening test, it is well-established that such complaints are insufficient to give rise to a constitutional claim. See Moncrieffe v. Witbeck, No. 97-CV-253, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000) (Mordue, J.) (allegations that corrections officer laughed at inmate not actionable under section 1983) (citation omitted); Carpio v. Walker, No. Civ.A.95CV1502, 1997 WL 642543, at *6 (N.D.N.Y. Oct. 15, 1997) (Pooler, J. and DiBianco, M.J.) ("verbal harassment alone, unaccompanied by any injury, no matter how inappropriate, unprofessional, or reprehensible it might seem, does not rise to the level of an Eighth Amendment violation"). Nor do threats amount to a constitutional violation. Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995).
D. Fourteenth Amendment Claim
As a separate cause of action, plaintiff's complaint alleges violations of his right to substantive due process under the Fourteenth Amendment, a claim that defendants argue is also insufficiently stated. The basis for this claim is plaintiff's contention that by arbitrarily and capriciously overlooking the plain terms and language of Health Services Policy No. 1.18, prison medical personnel at the Great Meadows violated his right to substantive due process. When broadly construed, it seems that plaintiff's complaint also alleges a potential procedural due process claim challenging the constitutionality of the procedures outlined in Health Services Policy No. 1.18 with regard to placement in keeplock confinement. Both of these due process claims fail as a matter of law.
1. Substantive Due Process
The due process clause of the Fourteenth Amendment contains both substantive and procedural elements. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975 (1990). The substantive component of the Fourteenth Amendment "bars certain arbitrary and wrongful government action regardless of the fairness of the procedures used to implement them." Id. at 125, 110 S. Ct. at 983 (internal quotations and citation omitted). "Substantive due process protects individuals against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised." Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir.1994) (internal quotations and citations omitted) (citing cases). To establish a violation of substantive due process rights, "a plaintiff must demonstrate that the state action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Okin v. Vil. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S .Ct. 1708 (1998)). The first step in a substantive due process analysis is to identify the constitutional right at stake." Excell v. Woods, No. 9:07-CV0305, 2009 WL 3124424, at *23 (N.D.N.Y. Sept. 29, 2009) (Suddaby, J. and Lowe, M.J.) (citing Lowrance, 20 F.3d at 537). It should be noted, parenthetically, that there are few circumstances arising in the context of prison life that rise to the level of shocking and suffice to state a substantive due process violation. Shuler v. Brown, No. 07-CV-0937, 2009 WL 790973, at *9 (N.D.N.Y. Mar. 23, 2009) (McAvoy, S.J. and Lowe, M. J.).
Placement in medical keeplock for objecting to PPD testing on religious grounds, while potentially within the ambit of the protection afforded under the First Amendment, is not the sort of condition of prison life that implicates substantive due process, nor does Health Policy No. 1.18 create a substantive right to alternative testing. Cf. Barnes v. Craft, No. 9:04-CV-1269, 2008 WL 3884369, at *5 (N.D.N.Y. Aug. 18, 2008) (Mordue, C.J. and Lowe, M. J.) (finding that the DOCCS beard exemption policy did not create a substantive due process right). Moreover, even if the court were to ultimately find that the Health Services Policy No. 1.18 did create a substantive due process right, any attempt to allege a substantive due process violation nonetheless must fail. At best, based upon the allegations in plaintiff's complaint, it seems clear that defendants' failure to follow Health Services Policy No. 1.18 amounts to nothing more than incorrect or ill-advised conduct and falls far short of the type of conscience-shocking behavior that would support a substantive due process claim. See Lowrance, 20 F.3d at 537. For these reasons, I recommend the plaintiff's substantive due process claim under the Fourteenth Amendment be dismissed.
There is yet another reason why a substantive due process claim would fail in the case. The Supreme Court has repeatedly held, "if a constitutional claim is covered by a specific constitutional provision . . . it must be analyzed under the standard appropriate to that specific provision, not under the [more generalized notion] of substantive due process." United States v. Lanier, 520 U.S. 259, 272, n.7, 117 S. Ct. 1219 n.7 (1997) (citing Graham v. Conner, 490 U.S. 386, 394, 109 S. Ct. 1870, 1871 (1989)); see also Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005). Here, plaintiff's claim relating to the denial of alternative testing because of his religious objection to the PPD test is more appropriately analyzed under the First Amendment and the RLUIPA.
2. Procedural Due Process
Although plaintiff's second cause of action specifically claims only a substantive due process violation, when liberally construed the complaint could be interpreted to have embedded within it a procedural due process claim. See, e.g., Amended Complaint (Dkt. No. 36) ¶ 37 (alleging "that the policy's procedures are even inconsistent with the minimum due process requirement afforded . . . for the most serious disciplinary matters calling for the very form of restrictions plaintiff was subject to without due process of law."). As plaintiff notes, subjecting a prison inmate to a period of seven months of disciplinary confinement would ordinarily be deemed a sufficient liberty interest deprivation to trigger procedural due process rights. See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000); Bunting v. Nagy, 452 F. Supp. 2d 447, 455-56 (S.D.N.Y. 2006) (citing cases); Beckford v. Portuondo, 151 F. Supp. 2d 204, 219 (2d Cir. 2001). Similarly, an inmate placed in administrative confinement segregation for such reasons as a need for protection for seven months would also be entitled to basic due process rights, including an initial hearing and periodic reviews. See Davis v. Barrett, 576 F.3d 129 (2d Cir. 2009) (holding that forty-one days in administrative confinement could represent the deprivation of a cognizable liberty interest, depending upon the conditions to which the plaintiff inmate was subjected). Plaintiff's complaint suggests that he, on the other hand, was not afforded the same safeguards despite being placed in keeplock confinement based upon his exercise of his First Amendment rights. This could form the basis for a plausible procedural due process claim.
The concept of procedural due process under the Fourteenth Amendment is a flexible one, with its requirements being dependent upon the nature of the deprivation at issue and the process associated with it. In a prison setting, an inmate who is subject to the deprivation of a constitutionally significant liberty interest is entitled under the Fourteenth Amendment to notice and an opportunity to be heard. Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004). "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965)).
I will assume for the sake of argument that plaintiff's medical keeplock confinement for a period of approximately seven months, with a corresponding loss of privileges, constituted the deprivation of a liberty interest sufficient to trigger the Fourteenth Amendment's due process protections. Plaintiff was therefore entitled to both notice and a meaningful opportunity to be heard with regard to that deprivation. Sira, 380 F.3d at 69.
While some courts have analyzed procedural due process claims stemming from keeplock confinement under principles ordinarily applicable to disciplinary or administrative SHU confinement, e.g., Delisser, 2003 WL 133271, at *7 (N.D.N.Y. Jan. 15, 2003), others have concluded that ordinary keeplock confinement conditions are not sufficiently atypical or significant hardships in relation to the ordinary incidents of prison life to trigger the protections of the Fourteenth Amendment. See, e.g., Luis v. Coughlin, 935 F. Supp. 218, 220-22 (W.D.N.Y. 1996).
Under Health Services Policy No. 1.18, before being placed in keeplock confinement for refusing to be tested for TB, an inmate must "be carefully counseled about the importance of [the] test." Health Services Policy No. 1.18 at § IV.A.4. The policy also requires that inmates on TB hold be offered testing "daily for one week, weekly for one month and monthly thereafter until the inmate accepts testing or prophylaxis" going on to provide that "[i]nmates can agree to testing/prophylaxis at any time." Id. at § IV.A.4.ii.. Accordingly, assuming the validity of Health Service Policy No. 1.18 - a matter that has yet to be determined - "the requirements of due process were met, in that plaintiff had both notice of the reason for his keeplock confinement and the means of ending it." Rossi v. Goord, No. 9:00-CV-1521, 2006 WL 2811505, at *8 (N.D.N.Y. Sep. 28, 2006) (Kahn, J. and Peebles, M.J.). Under these circumstances, no reasonable factfinder could conclude that plaintiff was denied procedural due process in connection with its medical keeplock confinement. Accordingly, I recommend dismissal of plaintiff's procedural due process claim .
E. Plaintiff's Religious Freedom Claims
The centerpiece of plaintiff's complaint is his claim that he was deprived of his religious liberties deriving from two different sources - the RLUIPA and the First Amendment. In their motion defendants appear to focus their argument solely upon the First Amendment claim and fail to address the sufficiency of plaintiff's claim under the RLUIPA.
That amendment provides, in pertinent part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. The RLUIPA, provides, in pertinent part, that
no government shall impose 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 demonstrates that imposition of a burden on that person - 1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.42 U.S.C. § 2000cc-1(a). To establish a violation of the RLUIPA a plaintiff must prove that prison officials, through their actions, have substantially burdened his or her religious exercise through actions not found to promote a compelling governmental interest advanced through the least restrictive means. Pilgrim v. Artus, No. 07-cv-1001, 2010 WL 3724883, at *10 (N.D.N.Y. Mar. 18, 2010) (Treece, M.J.), report and recommendation adopted, 2010 WL 3724881 (N.D.N.Y. Sep. 17, 2010) (Sharpe, J.). The RLUIPA places a higher burden on the defendants than does the First Amendment, which requires only a burden that is "reasonably related to legitimate penological interests." Id.
Defendants' contention that plaintiff's First Amendment claim lacks merit, see Defendants' Memorandum (Dkt. No. 49-1) at p. 6, which is presented in two succinct paragraphs, does not appear to invite the court at this early stage to weigh the proprietary of DOCCS Health Services Policy No. 1.18, either as drafted or as applied to the plaintiff, under the First Amendment or the RLUIPA. Instead, the focus of the defendants' argument is upon the alleged lack of personal involvement on the part of the four named defendants in the constitutional deprivations alleged.
Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282 (1978)). As the Supreme Court has noted, a defendant may only be held accountable for his or her actions under section 1983. Iqbal, 129 S. Ct. at 1952. In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). That requirement may be satisfied by showing that the defendant 1) directly participated in the alleged violation; 2) after being informed of the violation through a report or appeal, was in a position to remedy the wrong, and failed to do so; 3) created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; 4) was grossly negligent in supervising subordinates who committed the wrongful acts; or 5) exhibited deliberated indifference to others' rights by failing to act on information indicating that unconstitutional acts were occurring. Barnes v. Fedele, 760 F. Supp. 2d 296, 304 (W.D.N.Y. 2011) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)) (other citation omitted).
Although in their motion defendants have not actively challenged the plaintiff's RLUIPA claims, it should be noted that the Second Circuit has yet to address whether personal involvement is a prerequisite to a claim under the RLUIPA. Pilgrim, 2010 WL 37224883 at *14. Courts in this district and elsewhere have held that it is. Id. (citing Joseph v. Fischer, No. 08 Civ. 2824, 2009 WL 3321011, at *18 (S.D.N.Y. Oct 8, 2009) (concluding that the "personal involvement of a defendant in the alleged substantial burden of plaintiff's exercise of religion is a prerequisite to stating a claim under RLUIPA") (citing cases)); Hamilton v. Smith, No. 9:06-CV-0805, 2009 WL 3199520, at *9 (N.D.N.Y. Sept. 30, 2009) (Suddaby, J.) (dismissing RLUIPA claim for want of personal involvement on the part of defendants); Jacobs v. Strickland, 2009 WL 2940069, at *2 (S.D.Ohio Sept. 9, 2009) (finding no clear error of law in magistrate judge's holding that personal involvement is a necessary element of RLUIPA claims) (citing Greenberg v. Hill, No. 2:07-CV-1076, 2009 WL 890521, *3 (S.D. Ohio Mar. 31, 2009); Alderson v. Burnett, No. 1:07-CV-1003, 2008 WL 4185945, at *3 (W.D. Mich. Sep. 8, 2008)); see also Keesh v. Smith, 9:04-CV-799, 2011 WL 1135931, at *11 (N.D.N.Y. Feb. 2, 2011) (Baxter, M.J.) (citations omitted), report and recommendation adopted, 2011 WL 1135929 (Mar. 25, 2011) (Mordue, C.J.).
Before evaluating the level of personal involvement for each of the named defendants it is important to understand the extent of plaintiff's claims. Plaintiff's complaint alleges that the current version of the DOCCS Health Services Policy No. 1.18, while since 2004 incorporating an alternative procedure for religious objectors, nonetheless still impinges upon the rights of objecting inmates under the First Amendment and the RLUIPA by virtue of the testing procedures specified. See Amended Complaint (Dkt. No. 36) ¶¶ 40-41. Smith also alleges that the policy was unconstitutionally applied to him since the alternative testing for religious objectors available under the testing policy was not provided to him by local prison officials at Great Meadows. Id. at ¶¶ 43-46. These two claims are conceptually distinct for purposes of analysis of the level of participation of the four named defendants.
1. Dr. Lester Wright
Plaintiff's amended complaint names Dr. Wright, the DOCCS Deputy Commissioner for Health Services and the agency's CMO, as a defendant. Dr. Wright's alleged involvement includes having developed the current DOCCS TB policy and maintaining responsibility for its enforcement. As was stated in the court's prior report and recommendation, all indications show that Dr. Wright did hold primary authority and responsibility for protecting the health of inmates and administering DOCCS health policies. Indeed, as was noted, it is Dr. Wright's signature that appears on the TB testing policy now at issue. See Fox v. Poole, No. 06CV148, 2008 WL 1867939, at *8 (W.D.N.Y. Apr. 24, 2008). Accordingly, to the extent the plaintiff asserts that the DOCCS policy is unconstitutional as drafted, Dr. Wright is open to exposure on that claim, for purposes of both declaratory and injunctive relief and for damages, subject to his claim of entitlement to qualified immunity.
Turning to plaintiff's claim that the policy is unconstitutional as was applied to him, the basis for asserting liability against Dr. Wright stems from a complaint sent by Smith to defendant Wright on August 1, 2006 placing him on notice that Smith had been on TB hold since February of that year and requesting immediate intervention. Investigation into the matter was apparently delegated by Dr. Wright to Steven Van Buren, the DOCCS Regional Health Services Administrator, who responded to plaintiff's complaint. It is well-established that the receipt by a high ranking DOCCS official of correspondence from an inmate complaining of a constitutional deprivation and the forwarding of that correspondence to an appropriate staff member for investigation and response is insufficient to trigger a finding of personal involvement. See Barnes, 760 F. Supp. 2d at 305.
Plaintiff also alleges, in conclusory fashion, that by virtue of his position Dr. Wright has the responsibility to enforce the TB testing policy and to ensure that the policy is properly carried out. This broad allegation is similarly insufficient to establish a plausible claim against Dr. Wright as relates to the policy as applied to Smith. See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); see also Wright, 21 F.3d at 501 (a supervisor cannot be liable for damages under section 1983 solely by virtue of being a supervisor; there is no respondeat superior liability under that provision).
In sum, I find that Dr. Wright is entitled to dismissal of plaintiff's claims regarding the application of the DOCS TB testing policy to his circumstances, but not with regard to his contention that the policy, as presently drafted, remains constitutionally infirm.
2. Dr. Silverberg
Plaintiff's amended complaint names Dr. Silverberg, his primary health care provider during the relevant times, as a defendant. Amended Complaint (Dkt. No. 36) ¶ 9. Dr. Silverberg's involvement in the constitutional deprivation allegedly included a responsibility to provide, upon request, the alternative procedures to test plaintiff for TB. Id. Plaintiff alleges he was taken for an examination by Dr. Silverberg on March 24, 2006, and that later, on September 14, 2006, he was again sent to see Dr. Silverberg to discuss alternative testing. Id. at ¶¶ 18, 131. Plaintiff does not allege any other specific facts regarding his interaction with Dr. Silverberg.
I find that at this early procedural juncture, these allegations are sufficient to establish the existence of a plausible constitutional claim against Dr. Silverberg insofar as plaintiff has alleged that the DOCS TB testing policy, as applied to his circumstances, violated his rights under the First Amendment and the RLUIPA. There is no basis, however, to conclude that Dr. Silverberg bears responsibility for development of Health Services Policy No. 1.18, and he therefore lacks responsibility with regard to plaintiff's claim that the policy is unconstitutional as drafted.
3. Dr. Paulano Plaintiff's amended complaint identifies Dr. Paulano as the "head doctor" at Great Meadows. Amended Complaint (Dkt. No. 36) ¶ 8. Dr. Paulano's involvement in the violations alleged included supervising and training the medical staff in the Great Meadows medical unit and implementing the TB testing policy through his medical staff. Id. Plaintiff alleges that on October 6, 2006 Dr. Paulano discussed with him the results of the Quanteferon Blood Test administered to Smith and released him from TB Hold. Id. at ¶ 33. Dr. Paulano also informed plaintiff that the procedure would be repeated the following year. Id. The plaintiff does not allege any other specific facts concerning his interaction with Dr. Paulano. These allegations are insufficient to establish Dr. Paulano's personal involvement in either the drafting of the allegedly unconstitutional TB testing policy or its application to plaintiff's circumstances.
F. Qualified Immunity
Seizing upon the lack of clarity regarding the interplay between the DOCCS TB testing policy and the rights guaranteed to inmates under the First Amendment and the RLUIPA, in the alternative defendants seek a finding that they are entitled to qualified immunity from suit in this action. Failing to appreciate the distinction between claims for damages, which may properly be dismissed based upon qualified immunity, and claims seeking other forms of relief including declaratory and injunctive, which are not, defendants assert that "all claims against the defendants" are subject to dismissal on the basis of qualified immunity. See Defendants' Memorandum (Dkt. No. 49-1) p. 11.
Qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982) (citations omitted). "In assessing an officer's eligibility for the shield, 'the appropriate question is the objective inquiry whether a reasonable officer could have believed that [his or her actions were] lawful, in light of clearly established law and the information the officer[ ] possessed." Kelsey v. County of Schoharie, 567 F.3d 54, 61 (2d Cir. 2009) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S. Ct. 1692 (1999)). The law of qualified immunity seeks to strike a balance between the need to hold government officials accountable for irresponsible conduct and the need to protect them from "harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009).
In Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), the Supreme Court "mandated a two-step sequence for resolving government official's qualified immunity claims." Pearson, 555 U.S. at 232, 129 S. Ct. at 816. The first step required the court to consider whether, taken in the light most favorable to the party asserting immunity, the facts alleged show that the conduct at issue violated a constitutional right, Kelsey, 567 F.3d at 61, with "the second step being whether the right is clearly established", Okin v. Village of Cornwall-On-Hudson Police Dept., 577 F.3d 415, 430 n.9 (citing Saucier). Expressly recognizing that the purpose of the qualified immunity doctrine is to ensure that insubstantial claims are resolved prior to discovery, the Supreme Court recently retreated from the prior Saucier two-step mandate, concluding in Pearson that because "[t]he judges of the district courts and courts of appeals are in the best position to determine the order of decisionmaking [that] will best facilitate the fair and efficient disposition of each case", those decision makers "should be permitted to exercise their sound discretion in deciding which of the . . . prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." Pearson, 555 U.S. at 236, 242, 129 S. Ct. at 818, 821. In other words, as recently emphasized by the Second Circuit, the courts "are no longer required to make a 'threshold inquiry' as to the violation of a constitutional right in a qualified immunity context, but we are free to do so." Kelsey, 567 F.3d at 61 (citing Pearson, 129 S. Ct. at 821) (emphasis in original).
In making the threshold inquiry, "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201, 121 S. Ct. 2151.
In Okin, the Second Circuit clarified that the "'objectively reasonable' inquiry is part of the 'clearly established' inquiry", also noting that "once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for the [government] officer who violated the clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful." Okin, 577 F.3d at 433 n.11 (citation omitted).
Indeed, because qualified immunity is "an immunity from suit rather than a mere defense to liability. . .", Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 (1985), the Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation." Pearson, 555 U.S. at 231, 129 S.Ct. at 815 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 524 (1991) (per curiam)).
For courts engaging in a qualified immunity analysis, "the question after Pearson is 'which of the two prongs . . . should be addressed in light of the circumstances in the particular case at hand.'" Okin, 577 F.3d 430 n.9 (quoting Pearson). "The [Saucier two-step] inquiry is said to be appropriate in those cases where 'discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.'" Kelsey, 567 F.3d at 61 (quoting Pearson, 129 S. Ct. at 818).
The Second Circuit has instructed that for purposes of the qualified immunity inquiry, the constitutional right at stake must be defined narrowly. McCarroll v. Federal Bureau of Prisons, No. 08-CV-1343, 2010 WL 4609379, at *5 (N.D.N.Y. 2010) (Lowe, M.J.) (citing Redd, 597 F.3d at 532). Generally speaking, the right at issue in connection with both of plaintiff's claims is Smith's right under the First Amendment and the RLUIPA to a religious exemption from the PPD test requirement under Health Services Policy No. 1.18. The most recent Second Circuit decision to address the issue, involving events that occurred in 2001, held that the right to religious exemption from such testing was not well-established at that time. Redd, 597 F.3d at 536; see also McCarroll, 2010 WL 4609379, at *5-6 (holding that the right to submit a saliva or hair sample rather than a blood sample was not clearly established or foreshadowed by any Second Circuit or Supreme Court ruling).
In Redd, the plaintiff was placed in TB hold in 2001 after refusing to undergo a PPD test on religious grounds. Redd, 597 F.3d at 534. The 1996 policy then in effect, unlike the 2004 version, did not contain a religious objector exception. Id. The district court determined that the 1996 policy was unconstitutional as applied, but held that the defendants in that case were entitled to qualified immunity and dismissed plaintiff's First Amendment and RLUIPA claims. Id. The court reasoned that conflict among the state and lower federal courts on the issue demonstrated that the right at issue was not clearly established. Id.
"The district court also concluded in a footnote that the 1996 Policy violated the RLUIPA, which 'imposes a standard of strict scrutiny upon burdens on the free exercise of religion of incarcerated persons in state prisons.' " Redd, 597 F.3d at 534-35 (quoting Redd v. Wright, No. 9:04-CV-00401(N.D.N.Y. filed Aug. 9, 2006) at 7 n.9).
Unlike plaintiff's complaint in this action, Redd's complaint sought only money damages and did not request declaratory or injunctive relief. Redd, 597 F.3d at 534.
On appeal, the Second Circuit declined the opportunity to determine whether Redd's rights were violated under the First Amendment and RLUIPA. Id. at 536 (citing Pearson, 121 S. Ct at 808). Instead, the court held that at the time Redd was confined, it had not been clearly established that the 1996 policy, or any substantially similar policy, was invalid under either the First Amendment or RLUIPA. Redd, 597 F.3d at 536. Moreover, the court held that its earlier decision in Jolly had not clearly foreshadowed a holding that the 1996 policy would be facially invalid under either the First Amendment or the RLUIPA, and furthermore, that neither Jolly nor the district court decision in Reynolds had signaled that the 1996 policy, as applied to Redd, violated Redd's free exercise right under the RLUIPA or the First Amendment. Id. at 537-38. Accordingly, the Second Circuit affirmed the district court's determination that the defendants were entitled to qualified immunity with regard to Redd's claims under the First Amendment and the RLUIPA.
Though the events giving rise to plaintiff's complaint occurred some five years later than those in Redd, the Second Circuit's decision in that case dictates the same result here. Presumably to accommodate the potential First Amendment and RLUIPA concerns of religious objectors, in 2004 the DOCCS amended its TB testing policy to include an alternative testing provision for religious objectors. Having reviewed that policy against the backdrop of existing caselaw, I conclude that no reasonable prison official could have understood the policy, as currently drafted, as unlawfully impinging upon the First Amendment and RLUIPA rights of inmates. In this regard the law has not matured significantly since Redd. No decision of the Supreme Court or Second Circuit issued prior to 2006, when plaintiff was relegated to TB hold, would have alerted someone such as Dr. Wright to any alleged First Amendment or the RLUIPA violation associated with the 2004 testing policy. In fact, Redd, in which the court expressly declined to address whether the earlier version of the policy violates the First Amendment or the RLUIPA, was not decided until some three years later and seems, at this time, to be the last word on this issue. Accordingly, I recommend a finding that Dr. Wright, the only defendant potentially exposed with regard to the as-written claim, be entitled to qualified immunity exempting him from liability for damages, though not for equitable relief potentially awardable against him in his official capacity.
Despite exhaustive research, the court has not identified a more recent decision within the Second Circuit, even at the district court level, addressing the validity of either the1996 or the 2004 policy on free exercise grounds.
Turning to plaintiff's as-applied challenge, unlike the policy at issue in Redd, the more recent 2004 policy provides for accommodation for those with religious objections to the PPD test, requiring that an inmate be advised within sixty days of being placed in TB hold as to what accommodation, if any, will be made. While it is undisputed that this provision of the 2004 policy was not followed with regard to plaintiff, that failure in and of itself is insufficient to support a constitutional challenge.Moreover, like the plaintiff in Redd, Smith "can point to no relevant case law declaring the [2004] Policy, or any substantially similar policy, invalid under either the First Amendment or RLUIPA", nor has any case clearly foreshadowed that result. Redd, 597 F.3d at 536. Accordingly, I conclude that defendant Silverberg, the only named defendant potentially exposed to liability for damages with regard to the as-applied claim, should be afforded qualified immunity.
A violation of a state law or regulation, in and of itself, does not give rise to liability under 42 U.S.C. § 1983." Cusamano v. Sobek, 604 F. Supp. 2d 416, 482 (N.D.N.Y. 2009) (Suddaby, J.) (collecting cases). "Furthermore, the violation of a DOCS Directive, alone, is not even a violation of a New York State Law or regulation (much less of 42 U.S.C. § 1983)." Cabassa v. Gummerson, 01-CV-1039, 2008 WL 4416411, at *6 n.24 (N.D.N.Y. Sept. 24, 2008) (Hurd, J.) (internal quotation marks and citation omitted). Notably, with regard to the policy at issue, even where it is determined that the inmate's religious belief forbidding the PPD testing is sincerely held, the policy does not require alternative testing. Instead, to the extent the policy provides that the CMO "may" order a blood test, it appears to be in the discretion that DOCCS official to allow that to occur. In light of the discretion afforded the CMO, it is not at all clear in this case that the delay in providing plaintiff with an alternative test violated Health Service Policy No. 1.18.
As the Redd court observed, "the factual predicate that led the court to grant a preliminary injunction in Jolly-Jolly's confinement for three and a half years, . . . significantly differs from the facts in this case", Redd, 597 F.3d at 532 (citation omitted), in which Smith was held in keeplock for less than eight months. "Jolly specifically declined to draw a line as to the length of confinement beyond which a constitutional violation would occur." Id. (citing Jolly, 76 F.3d at 478 n.5). Likewise, Reynolds did not "foreshadow a ruling that DOCCS lacked a compelling interest in implementing a TB hold policy", in that it did not address "the compelling interest in administering an effective TB program or compiling health information on inmates." Id. at 537-38 (citing Reynolds, 103 F. Supp. 2d at 340).
G. Standing
In view of the foregoing, all that remains of plaintiff's claims is his cause of action against Dr. Wright alleging that the current DOCCS TB testing policy is unconstitutional on its face and seeking declaratory and injunctive relief. Although not raised by defendants in their motion, it appears that since he has been released from prison, plaintiff lacks standing to pursue this claim.
"In every federal case, the party bringing the suit must establish standing to prosecute the action." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S. Ct. 2301, 2308 (2004). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S .Ct. 2197, 2205 (1975). The standing requirement is born partly of " 'an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.' " Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315 (1984) (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-1179 (D.C. Cir. 1982) (Bork, J., concurring)). "Standing 'is an essential and unchanging part of the case-or-controversy requirement of Article III.' " Central States Southeast and Southwest Areas Heath and Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 197 (2d Cir. 2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130 (1992)). As such, standing directly implicates the court's subject matter jurisdiction, and may therefore be raised by the court sua sponte. Id.
To establish standing to pursue injunctive or declaratory relief, a plaintiff must show that he or she has sustained or is in danger of immediately sustaining an injury as a result of the challenged official conduct. MacNamara v. City of New York, No. 04 Civ. 9216 (RJS)(JCF), 2011 WL 1991144, at *11 (S.D.N.Y. May 19, 2011) (citing Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004)) (other citation omitted). "[The s]tanding doctrine. . .generally precludes a § 1983 plaintiff from obtaining injunctive relief unless she can demonstrate that she is likely to be subjected to the same conduct in the future, a showing that can be very difficult to make." Ciraolo v. City of New York, 216 F.3d 236, 248 (2d Cir. 2000) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S. Ct. 1660 (1893)).
In this case, plaintiff is no longer within the custody of the DOCCS, having been released from prison in September 2010 and therefore is no longer subject to Health Services Policy No. 1.18 and the requirement that he undergo PPD testing. Because Smith is no longer incarcerated and does not face the likelihood of being subjected to this policy in the future, his request for declaratory and prospective injunctive relief must be dismissed for lack of standing. Brown v. City of New York, No. 09 CV 1809(RJD)(MG), 2010 WL 60914, at * 2 (E.D.N.Y. Jan. 8, 2010) (citing Shain, 356 F.3d at 215); Thomas v. New York State Dep't of Corr. Servs., No. 00 Civ. 7163(NRB), 2006 WL 435718, at *1 n.2 (S.D.N.Y. Feb. 23, 2006) (citing Shain).
H. Motion to Stay Discovery
In addition to seeking dismissal of plaintiff's claims, defendants also move order pursuant to Federal Rule of Civil Procedure Rule 26(c)(1) for a protective order staying discovery pending the resolution of defendants' motion to dismiss. Rule 26(c)(1) of the Federal Rules of Civil Procedure provides, in relevant part, that
[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending . . . The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery.Fed. R. Civ. P. 26(c)(1). When exercising the discretion conferred under Rule 26(c), in response to a motion to stay discovery during the pendency of a dismissal motion, a court must determine whether the party seeking the stay has established the existence of "good cause" for the requested delay. Chesney v. Valley Stream Union Free Sch. Dist., 236 F.R.D. 113, 115 (E.D.N.Y. 2006); Spencer Trask Software & Info. Servs., LLC v. RPost Int'l Ltd., 206 F.R.D. 367, 368 (S.D.N.Y. 2002). The mere filing of a dismissal motion, without more, does not guaranty entitlement to such a stay. Spencer Trask, 206 F.R.D. at 368 (citations omitted); see Moran v. Flaherty, No. 92 Civ. 3200, 1992 WL 276913, at *1 (S.D.N.Y. Sept. 25, 1992) ("[D]iscovery should not be routinely stayed simply on the basis that a motion to dismiss has been filed.").
Among the factors which inform the analysis of whether to grant a stay of discovery, in the face of a dispositive motion, are the burden of responding to the contemplated discovery, and the strength of the dispositive motion forming the basis for the stay request. Chesney, 236 F.R.D. at 115; Spencer Trask, LLC, 206 F.R.D. at 368. The court must also consider any unfair prejudice which may be suffered by the party seeking to engage in discovery during the pendency of the dismissal motion. OMG Fidelity, Inc. v. Sirius Techs., Inc., 239 F.R.D. 300, 304-305 (N.D.N.Y. 2006) (citing Chesney, 236 F.R.D. at 115).
Here, defendants have filed a persuasive motion which warrants a stay of discovery. Issue has not been joined in the action, and the court has not yet to issue its standard Rule 16 pretrial scheduling order in the case. Moreover, there is no indication that plaintiff has sought to commence discovery in the last six months. It therefore appears unlikely that prejudice will result from staying discovery pending the final determination of this motion. I therefore grant defendant's motion to stay discovery pending the final determination of this motion.
IV. SUMMARY AND CONCLUSION
Clearly the DOCCS has a strong, legitimate interest in containing contagious diseases, including TB, within its facilities. See Lee v. Frederick, 519 F. Supp. 2d at 326 (citing Word v. Croce, 230 F. Supp. 2d at 511 ("[T]here is no dispute that NYDOCS has a legitimate interest, in containing Tuberculosis.") and Jolly v. Coughlin, 76 F.3d at 477 (correctional officials have an affirmative obligation to protect inmates from infectious diseases)). Plaintiff maintains, however, that the means by which the DOCCS has chosen to address TB in its prisons has resulted in his experiencing constitutional deprivations and denial of his rights under the RLUIPA.
Plaintiff's complaint in this action asserts multiple constitutional challenges to both the current DOCCS TB testing protocol, despite its inclusion of an alternative provision for religious objectors, and the application of the policy to him, resulting in TB hold for seven months and a significant delay in offering the alternative procedure to him, claiming violations of the First, Eighth, and Fourteenth Amendments to the United States Constitution as well as the RLUIPA. Having carefully reviewed plaintiff's complaint, I conclude that it fails to state plausible Eighth Amendment and due process claims, but that it does assert potentially viable First Amendment and RLUIPA causes of action against all or some of the named defendants. Nonetheless, I find that all defendants other than Dr. Wright are entitled to dismissal with regard to the plaintiff's facial challenge to Health Services Policy No. 1.18. With regard to plaintiff's as-applied challenge to that policy, Drs. Wright and Paulano are entitled to dismissal of those claims based upon lack of personal involvement, and Dr. Silverberg is entitled to qualified immunity. I further find that Dr. Wright is entitled to a finding of good faith immunity precluding all claims for damages against him individually, but that he is not entitled to dismissal of plaintiff's declaratory and potential injunctive claims against him in his official capacity on that basis; those claims for prospective relief, however, are subject to dismissal due to plaintiff's lack of standing.
Ordinarily, when a pro se action is dismissed sua sponte, the plaintiff should be allowed to amend his or her complaint. See Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). However, an opportunity to amend is not required where "the problem with [plaintiff's] causes of action is substantive" such that "[b]etter pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (finding that repleading would be futile) (citation omitted); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.") (affirming, in part, dismissal of claim with prejudice) (citation omitted); cf. Gomez, 171 F.3d at 796 (granting leave to amend is appropriate "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim."). Here, for the reasons discussed above, I find that the deficiencies with plaintiff's claim are substantive, and that providing an opportunity to amend would therefore be futile.
Accordingly, it is hereby respectfully
RECOMMENDED, that plaintiff's motion to dismiss (Dkt. No. 49) be GRANTED and that plaintiff's complaint be DISMISSED in its entirety; and it is further
ORDERED that pending final disposition of this motion, all discovery in this action be and hereby is STAYED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the Clerk of the Court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is further hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
David E. Peebles
U.S. Magistrate Judge
Dated: August 31, 2011
Syracuse, NY