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finding the "[d]eprivation of only two meals over a two-day period" did not rise to level of Eighth Amendment violation
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9:08-cv-264 (GLS/DRH).
October 13, 2010
KEITH TERRELL BUTLER, Pro Se, Dannemora, NY, Attonrey for the plaintiff.
ADELE M. TAYLOR-SCOTT, Assistant Attorney General, HON. ANDREW M. CUOMO, New York State Attorney General, The Capitol, Albany, NY, Attonrey for the defendants.
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Keith Terrell Butler, an inmate at Clinton Correctional Facility, brings this action under 42 U.S.C. § 1983 against defendants J. Hogue and J. Hyde. (Compl., Dkt. No. 1.) Butler alleges that during his incarceration at Upstate Correctional Facility, Hyde and Hogue violated his First, Eighth, and Fourteenth Amendment rights by serving Butler a contaminated kosher meal on one occasion and soup in a defective container the following day. ( Id.; see also Pl. Objections, Dkt. No. 48.) Butler moved for summary judgment and Hogue and Hyde cross-moved for judgment on the pleadings. (Dkt. Nos. 36, 40.) On February 4, 2010, Magistrate Judge David R. Homer issued a Report and Recommendation Order (R R) recommending that Butler's motion be denied, that Hogue and Hyde's cross-motion for judgment on the pleadings be converted into a cross-motion for summary judgment, and that the cross-motion be granted, dismissing Butler's complaint in its entirety. (Dkt. No. 46.) Pending are Butler's objections to the R R. (Dkt. No. 48.) For the reasons that follow, the R R is adopted in its entirety.
II. Standard of Review
Before entering final judgment, this court routinely reviews all report-recommendations in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
III. Discussion
Based on Bulter's submission of various documents outside the pleadings in support of his summary judgment motion and defendants' consequent reference to and reliance on those documents, Judge Homer recommended that Hogue and Hyde's Rule 12(c) cross-motion to dismiss be converted into a motion for summary judgment. ( See R R at 5, Dkt. No. 46.) Hogue and Hyde raise no objections to the R R or the conversion of their motion. The court finds no error in this conversion.Butler raises no objection to Judge Homer's conclusion that any infringement on his First Amendment rights was de minimis and that Butler's complaint therefore fails to state any First Amendment claim as to which relief can be granted. ( Id. at 7-9.) The court concurs in that conclusion. Butler also does not protest the denial of his motion to amend his statement of material facts. ( Id. at 2 n. 3.) Because no reason was given for the request, the court affirms the denial of the motion.
Construing Butler's objections liberally, they specifically challenge Judge Homer's conclusion that his Eighth and Fourteenth Amendment rights were not violated. Consequently, those conclusions must be reviewed de novo. Insofar as the court can consider the challenges without straying too far from the documents provided prior to the filing of the objections, Butler's arguments are without merit. The objections themselves contain new information relating to Butler's medical condition of diabetes, previously unmentioned and not suggested by the submissions, which this court declines to consider for the first time at this late stage. ( See Pl. Objections at 2, Dkt. No. 48.) Although a district court has the option to "receive further evidence" when reviewing a magistrate judge's report and recommendation de novo, the court will not do so unless the presenting party offers a sufficient justification for admission. FED. R. CIV. P. 72(b)(3); see Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1999) ("[W]e have upheld the exercise of the district court's discretion in refusing to allow supplementation of the record upon the district court's de novo review." (italics omitted)). Plaintiff has offered no justification for the delay in presenting this evidence and thus the court declines to consider this new claim.
Butler raises other additional, and more recent, allegations in his objections. He claims, for example, that he has been retaliated against, that his legal files were stolen, and that he was beaten by correction officers on December 30, 2009. ( See Pl. Objections at 2-3, Dkt. No. 48.) Again, these claims are beyond the scope of the present cause of action and will not be addressed here.
A. Fourteenth Amendment Claims
Turning to Butler's Fourteenth Amendment due process claims, the R R observes that it is "unclear how Butler determined that his Fourteenth Amendment rights have been violated." (R R at 2, Dkt. No. 46.) Whatever the claim's genesis, Judge Homer correctly determined that even taking as true all Butler's pleaded facts and all reasonable inferences drawn therefrom, Butler cannot show that his due process or equal protection rights have been violated and that he is entitled to judgment as a matter of law.
In order for a prisoner to show that his procedural due process rights have been violated, he must first establish that he possessed a protected liberty interest in avoiding the hardship. See Sandin v. Conner, 515 U.S. 472, 484 (1995). To show a protected liberty interest, a prisoner must show that the alleged harm "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. Butler has pleaded no facts and benefits from no inferences that meet the significant hardship requirement. The absence of any viable liberty interest at stake also compels the conclusion that Hogue and Hyde are entitled to judgment as a matter of law.
The court further notes that Butler can have no substantive due process claim independent of his Eighth Amendment claims. Where there is an explicit textual source of constitutional protection relevant to a claim, that source, rather than substantive due process, governs the analysis. Graham v. Connor, 490 U.S. 386, 395 (1989); see also County of Sacramento v. Lewis, 523 U.S. 833, 842-843 (1998). In light of Butler's incarceration, any substantive due process claim would be subsumed in the Eighth Amendment claims present in Butler's submissions.
Butler's Fourteenth Amendment equal protection claims fare no better than his due process claims. To establish an equal protection claim, a plaintiff must show that "he was treated differently from others similarly situated as a result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (citation omitted). As the R R points out, nowhere in Butler's submissions is there any evidence of how other similarly-situated inmates were treated with regard to either medical care or the regularity of the provision of meals. At best, Butler can point to one sentence in his affidavit in support of his motion for summary judgment: "plaintiff is entitled to The Equal protection Clause in which I am intentionally being treated differently." (Pl. Mot. at 3, Dkt. No. 36.) This conclusory allegation is insufficient to salvage his equal protection claim. Consequently, Butler's Fourteenth Amendment equal protection claims fail.
B. Eighth Amendment Claims
Butler objects to the dismissal of his Eighth Amendment claims. Disregarding those objections which present new evidence, his remaining objections are wholly without merit. Butler's submissions prior to his objections contain no allegations that he suffered any physical injury, of any magnitude, as a consequence of the deprivation of the meals. Thus, Butler relies in error on Hudson v. McMillian, 503 U.S. 1 (1992). Although Hudson rejects a bright-line minimum amount of force required to show excessive force, it also holds that de minimis force fails to establish a constitutional claim unless the particular use of force is "repugnant to the conscience of mankind." Id. at 10 (citation and internal quotation marks omitted). Because no physical force or injury is even alleged, no claim based upon excessive force can be sustained. As the R R rightly points out, "allegations of verbal harassment alone, without physical injury, are not actionable pursuant to § 1983." (R R at 10, Dkt. No. 46 (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1996)).)
Butler's pleadings do not support an Eighth Amendment claim for medical indifference. To establish such a claim, "a plaintiff must prove that the defendant was deliberately indifferent to a serious medical need." Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (citing Farmer v. Brennan, 511 U.S. 825, 834-40 (1994)). No evidence of a serious medical need exists in the submissions under review. The properly pleaded facts bear out, at most, a chronic sore throat for which Butler was provided medical treatment on nine separate occasions in the month that followed the provision of the contaminated meals. ( See Pl. Mot. at 12-16, Dkt. No. 36.) Even if a reasonable jury could find that Butler's sore throat met the serious medical condition requirement, the requisite mental state of deliberate indifference is clearly absent. First, a defendant must "know of and disregard[] an excessive risk" to the plaintiff's health or safety. Farmer, 511 U.S. at 837. There is no evidence or allegation in Butler's submissions that either defendant was aware of Butler's medical conditions. Consequently, Butler's Eighth Amendment medical indifference claim fails.
Butler also claims an Eighth Amendment violation due to unsanitary prison conditions stemming from a failure to provide nutritious food. ( See Pl. Mot. at 3, 5, Dkt. No. 36.) Prisons are required under the Eighth Amendment to provide for the basic human needs of those incarcerated, including "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (per curium) (citation and internal quotation marks omitted). The deprivation must be sufficient to create a serious danger to the health of the inmate. See, e.g., Beckford v. Portuondo, 151 F. Supp. 2d 204, 213 (N.D.N.Y. 2001) (finding deprivation of two of three meals per day for eight days created an issue of material fact sufficient for Eighth Amendment claim to survive summary judgment); Moss v. Ward, 450 F. Supp. 591, 596-597 (W.D.N.Y. 1978) (finding denial of food for four consecutive days and reduced food for three days thereafter sufficient to violate prisoner's Eighth Amendment rights). Where a particular diet is medically required, denial of a smaller number of meals may be sufficient in some circumstances. See Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 180 (N.D.N.Y. 1996) (citing Robles, 725 F.2d at 15-16). However, the scope of the deprivation of food required to constitute cruel and unusual punishment is significantly greater than the deprivation present here. Deprivation of only two meals over a two-day period is insufficient to make out a constitutional claim. Therefore, the Eighth Amendment claims based on denial of sanitary food fails.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David R. Homer's February 4, 2010 Order (Dkt. No. 46) is ADOPTED in its entirety; and it is further
ORDERED that Hogue and Hyde's motion (Dkt. No. 40) is GRANTED in all respects and the complaint dismissed; and it is further
ORDERED that Bulter's motion (Dkt. No. 36) is DENIED; and it is further
ORDERED that the Clerk provide copies of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
October 13, 2010
Albany, New York
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
Plaintiff pro se Keith Terrell Butler ("Butler"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, two DOCS employees, violated his constitutional rights under the First, Eighth, and Fourteenth Amendments. Compl. (Dkt. No. 1). Presently pending are (1) Butler's motion for summary judgment pursuant to Fed.R.Civ.P. 56 (Dkt. No. 36), and (2) defendants' cross-motion for judgement on the pleadings pursuant to Fed.R.Civ.P. 12(c) (Dkt. No. 40). Butler has also requested to amend his Statement of Material Facts. Dkt. No. 44. For the following reasons, it is recommended that Butler's motions be denied and that, converted to a motion for summary judgement, defendants' cross-motion be granted.
It is unclear how Butler determined that his Fourteenth Amendment rights have been violated. Liberally construing the complaint, however, such contentions are meritless. To establish a protected liberty interest, a prisoner must satisfy the standard set forth in Sandin v. Conner, 515 U.S. 472, 483-84 (1995). This standard requires a prisoner to establish that the confinement or condition was atypical and significant in relation to ordinary prison life. See Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996). While deprivations of meals may result in a due process violation, in the current case, as discussed infra, Butler's deprivation was only de minimis. See Ross v. Coughlin, 669 F. Supp. 1235, 1241-42 (S.D.N.Y. 1987) (stating that a prison's refusal to "provide dietary laws that would not violate kosher requirements . . ." in contravention of their duty to provide inmates with a sufficient diet could result in possible due process violations). Such deprivations, being de minimis, fail to fulfill the requirements of the Sandin test, and thus, are not actionable.
Additionally, to the extent Butler claims that his Equal Protection rights were violated, such contentions are also meritless. Essential to that protection is the guarantee that similarly situated persons be treated equally. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In order to establish an equal protection violation, the plaintiff must show that "he was treated differently than others similarly situated as the result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). Butler has failed to demonstrate, or even allege facts which establish, that he was treated differently than anyone else, or that he was treated differently based upon intentional and purposeful discrimination. All that is proffered are conclusory allegations, which are insufficient to state a claim on this ground. Accordingly, defendants should be granted judgment on all claims asserted under the Fourteenth Amendment.
As the Statement of Material facts is merely a recitation of the papers submitted in support of a motion for summary judgment, amendment of such is unnecessary as the Court has read and relied upon the actual exhibits upon which the Statement is based. See N.D.N.Y.L.R. 7.1(a)(3) ("The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits."). Accordingly, Butler's motion to amend his Statement is denied.
I. Background
The facts are related herein in the light most favorable to Butler.
At all relevant times, Butler was incarcerated at Upstate Correctional Facility ("Upstate"). Compl. ¶ 2. On November 7, 2007, defendant Hyde, a corrections officer, served Butler a kosher meal which was infested with little black bugs. Id. ¶ 6. Defendant Hogue, another corrections officer, made a joke about the bugs and then began laughing with Hyde. Id. On November 8, 2007, Hyde served Butler kosher soup, which had two pen holes in the cup. Dkt. No. 36 at 22. Hyde refused to give him a new cup of soup. Id. at 22.
Butler filed a grievance on November 15, 2007 concerning his insect-contaminated soup. Dkt. No. 36 at 23. The grievance was denied by the superintendent as "no evidence was found to support [Butler's] . . . allegations. . . ." Id. at 23. The grievance was appealed, and affirmed by the Central Office Review Committee, again noting that there was "no indication that [Butler's] soup was contaminated or tampered with. . . ." Id. at 25. Additionally, during November and December of 2007, Butler authored multiple letters regarding the events of November 7 and 8. Id. at 31 (letter to Inspector General), 32 (letter to rabbi concerning the events of November 7), 35 (letter to New York State Police regarding the events of November 7), 38 (letter to Food Administration Services regarding events of November 7), 39 (letter to Inmate Grievance Program regarding prior grievances and the events of November 7).
Two days after receiving the contaminated meal, Butler went to sick call complaining of a sore throat. Dkt. No. 36 at 16. He was examined and noted to have no indication for treatment, no patches, and no swelling.Id. Butler was scheduled to see a physician for complaints of a chronic sore throat. Id. From November 20, 2007 until November 30, 2007, Butler was seen by medical staff with complaints of a sore throat six times. Id. at 12-14. Butler was continually told to gargle with salt water, given medication to lessen his symptoms, told to increase his level of hydration, and rest his voice. Id. at 12-14. This action followed.
II. Discussion
Butler moves for summary judgment based upon the fact that defendants served him an insect-infested religious meal and a soup cup with holes in it. Defendants move for judgment on the pleadings on the grounds that (1) the failure to provide two religious meals fails to establish a First Amendment violation and (2) defendants' alleged obnoxious or demeaning comments were insufficient to sustain a § 1983 claim.
A. Legal Standard
In this case, in response to Butler's motion for summary judgment, defendants filed a motion for judgment on the pleadings. At the close of the pleadings, a request for dismissal for failure to state a claim may be brought as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). See generally Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983)). "The test for evaluating a 12(c) motion is the same as that applicable to a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Irish Lesbian Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Burke v. New York, 25 F. Supp. 2d 97, 99 (N.D.N.Y. 1998) (Munson, J.). On a motion under Rule 12(c), a determination must be made based solely on the allegations of the complaint and answer and any documents necessarily incorporated therein by reference. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006).
Butler has submitted various documents outside the pleadings in support of his motion, seeking summary judgment. Those documents have been referenced by defendants and considered by the Court. Thus, since defendants' motion has moved beyond consideration of the complaint and answer, that motion must be converted to one for summary judgment. Cleveland, 448 F.3d at 521 ("A court may indeed convert a motion for judgment on the pleadings into a motion for summary judgment if matters outside the pleadings are presented to and not excluded by the court.") (internal quotation marks and citation omitted). Generally, a district court should give parties specific notice of its intent to convert a motion to dismiss into a motion for summary judgment unless "the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment. . . ." See e.g., In re G. A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985). For example "where only the party moving . . . has submitted extrinsic material . . . the opposing party may be deemed to have had adequate notice that the motion . . . would be converted." Id. (citations omitted). In this case, defendants received Butler's motion six weeks before they filed their own.See Dkt. Sheet. Butler's motion was titled and docketed as a motion to dismiss and it included extrinsic evidence as exhibits. Thus, defendants were fully aware of the potential for the Court to convert the motion, and should have reasonably expected as much.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law.Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
When, as here, a party seeks dismissal or summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006); see also Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.
B. First Amendment
Butler alleges that his First Amendment right to the free exercise of his religion was violated when defendants failed to provide him with two individual kosher meals for two days.
"The First Amendment . . . guarantees the right to the free exercise of religion." Johnson v. Guiffere, No. 04-CV-57 (DNH), 2007 WL 3046703, at *4 (N.D.N.Y. Oct. 17, 2007) (citing Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). "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)). This right "is not absolute or unbridled, and is subject to valid penological concerns. . . ." Johnson, 2007 WL 3046703, at * 4.
The Free Exercise Clause extends "into other aspects of prison life including . . . that of an inmate's diet. . . ." Id. The Second Circuit has held that it is "clearly established that a prisoner has a right to a diet consistent with his or her religious scruples. . . ." Ford, 352 F.3d at 597 (citations omitted). Therefore, to "deny prison inmates the provision of food that satisfies the dictates of their faith . . . unconstitutionally burden[s] their free exercise rights."McEachin v. McGuinnis, 357 F.3d 197, 203 (2d Cir. 2004).
A party asserting a free exercise claim bears the initial burden of establishing that the disputed conduct infringes on his or her sincerely held religious beliefs. . . . [T]he burden then shifts to the defendant to identify a legitimate penological purpose justifying the decision . . . [and i]n the event such a[n] interest is articulated, its reasonableness is then subject to analysis under . . . Turner. . . .Johnson, 2007 WL 3046703, at * 4-5 (citations omitted).
In this case, defendants do not argue the sincerity of Butler's religious beliefs. Subscription to a kosher diet constitutes a material tenet of religion consistently found entitled to protection under the Free Exercise Clause. See, e.g., Jackson v. Mann, 196 F.3d 316, 320-21 (2d Cir. 1999) (denying government's motion for summary judgment on claim for denial of kosher meals for Jewish prisoner because, inter alia, prisoners are "entitled to a reasonable accommodation of [their] religious beliefs . . . includ[ing their] religious dietary beliefs . . . [mandating] prison officials [to] provide a prisoner a diet that is consistent with his religious scruples.") (internal quotations and citations omitted). However, "[t]here may be inconveniences so trivial that they are most properly ignored . . . [thus] the time-honored maxim de minimis non curat lex applies." McEachin v. McGuinnis, 357 F.3d 197, 203 n. 6 (2d Cir. 2004); see also Rapier v. Harris, 172 F.3d 999, 1006 n. 6 (7th Cir. 1999) ("De minimis burdens on the free exercise of religion are not of constitutional dimension.")
This phrase translates as "the law does not concern itself with trifles." Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625, 632 (S.D.N.Y. 2008).
In this case, there are no allegations, nor would the record support conclusions, that defendants' actions precluded Butler from receiving kosher meals. Butler's allegations state that on November 7 one meal was infested with bugs and that on November 8 his meal was delivered in a tampered soup cup. Thus, he contends that two of his six meals over two consecutive days were inadequate. He makes no proffer that he missed other meals on those two days, that he regularly received meals which had been compromised, or that there was a routine or blanket practice of giving him inadequate meals.
Such isolated events in the context of regular daily meals constitute a de minimis interference with Butler's First Amendment rights. Such interference fails to support a First Amendment claim as a matter of law. See Ford v. McGinnis, 352 F.3d 582, 594 n. 12 (2d Cir. 2003) (holding that a meal associated with a large religious feast "is unique in its importance within [the religion] to distinguish the present case from those in which the mere inability to provide a small number of meals commensurate with a prisoner's religious dietary restrictions was found to be a de minimis burden) (citations omitted); Rapier v. Harris, 172 F.3d at 1006 n. 4 (affirming summary judgment because "the unavailability of a non-pork tray . . . at three meals out of 810 does not constitute more than a de minimis burden . . . [as there] has [been] no[] alleg[ation of] a routine or blanket practice of denying him pork-free meals."); Evans v. Albany County Corr. Facility, No. 05-CV-1400, 2009 WL 1401645, at *8 (N.D.N.Y. May 14, 2009) (holding that providing one wrong meal a week for approximately eighteen weeks was de minimis); Tafari v. Annets, No. 06-CV-11360 (GBD/AJP), 2008 WL 2413995, at * 17 (S.D.N.Y. June 12, 2008) (denial of kosher meals on four occasions over a multiple year period constitutes a de minimis burden on plaintiff's religious beliefs); Thomas v. Picio, No. 04-CV-3174, 2008 WL 820740, at *6 n. 8 (S.D.N.Y. March 26, 2008) (finding that the denial of all kosher meals for one or two days was "not a substantial burden" which was actionable). Much like Thomas, Butler was denied two out of six meals in a two day period, with no other complaints of meal problems before, or after, during his tenure at Upstate. Such complications resulted in a de minimis burden on Butler's religious practice. As such, he has failed to state a First Amendment claim.
Accordingly, defendants' motion as to this claim should be granted.
B. Eighth Amendment
To the extent Butler attempts to allege that his Eighth Amendment rights to medical treatment were violated, such claims are meritless. A prisoner advancing an Eighth Amendment claim for denial of medical care must allege and prove deliberate indifference to a serious medical need. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Hathaway, 37 F.3d at 66. First, Butler has failed to name any medical personnel as defendants or established how either defendant caused or contributed to his medical need. Second, allegations of a sore throat, and nothing more, are insufficient to establish a serious medical need. See Griffin v. DeRobertis, 557 F. Supp. 302, 306 (N.D. Ill. 1983) (holding that complaints of aches and a sore throat alone fail to satisfy the objective prong, but "becom[ing] ill to the point of spitting up blood," elevate the symptoms into the category of serious medical need). Third, the submitted medical records show that Butler was persistently treated for his chronic sore throats. In ten days he saw medical personnel and received medical treatment six times. Dkt. 36 at 12-14. Such actions belie any claims of deliberate indifference. Accordingly, any such claims would fail to satisfy the requirements for such an Eighth Amendment claim.
Accordingly, even if Hogue made jokes about the bugs in Butler's meals, such comments, while distasteful and cruel, are insufficient to state a claim. Butler has failed to make any allegations of a physical injury. Thus, he has not been subjected to cruel and unusual punishment and defendants should be granted judgment on these claims. See Carlson v. Parry, No. 06-CV-6621P, 2007 WL 1112702, at *1 (W.D.N.Y. Apr. 9, 2007) ("Plaintiff makes no allegation of any physical injury whatsoever arising out of the incidents described in the complaint, and therefore his complaint does not allege a violation of his right to be free from cruel and unusual punishment.").
Therefore, defendants' motion should be granted on this ground.
III. Conclusion
For the reasons stated above, it is hereby RECOMMENDED that:
1. Butler's motion for summary judgment (Dkt. No. 36) be DENIED; and
2. Defendants' cross-motion for summary judgment (Dkt. No. 40) be GRANTED in all respects and judgment be entered for both defendants on all claims; and
IT IS ORDERED that Butler's motion to amend his Statement of Facts (Dkt. No. 44) is DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
Dated: February 4, 2010
Albany, New York