Opinion
21-CV-10152 (LJL) (BCM)
03-09-2023
TREVOR FORREST, Plaintiff, v. CITY OF NEW YORK, WARDEN RENEE, and CAPTAIN CARTER, Defendants.
TO THE HON. LEWIS J. LIMAN
REPORT AND RECOMMENDATION
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Trevor Forrest, a/k/a Shaikh Abdullah Faisal, was a pretrial detainee at Rikers Island, awaiting trial on terrorism charges, when he commenced this pro se action against the New York City Department of Correction (DOC), Warden Renee, and Captain Carter. Plaintiff alleges that as a result of his "court order[ed] lockdown status," he has been barred from attending Jumu'ah services and from receiving visits from the imam at his cell, in violation of his right to freely exercise his religion. See Compl. (Dkt. 2) at 4. Plaintiff further alleges that, due to the court order placing him on lockdown status (the Lockdown Order), he is required to receive medical and mental health treatment in his cell instead of visiting the clinic, in violation of his right to medical privacy. Id. at 5.
Now before me for report and recommendation (see Dkt. 34) is defendants' motion (Dkt. 25), made pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss all of plaintiff's claims. I construe the Complaint as asserting (i) a claim pursuant to 28 U.S.C. § 1983 for violation of plaintiff's rights under the Free Exercise Clause of the First Amendment, made applicable to the states through the Fourteenth Amendment; (ii) a claim pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., for imposing a substantial burden on his religious exercise; and (iii) a claim pursuant to § 1983 for violation of his right to medical privacy under the Due Process Clause of the Fourteenth Amendment.
As discussed in more detail below, the Lockdown Order, issued by the Supreme Court of the State of New York, New York County, and (insofar as the record reflects) unchallenged in that forum, shows that defendants had a valid penological reason for prohibiting plaintiff from attending congregate religious services or visiting the medical clinic, and a compelling governmental interest in doing so, thus defeating his claims based on those restrictions. Moreover, plaintiff cannot recover money damages under any theory. His damages claims under § 1983 are barred by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), because he alleges only emotional injury, while damages are unavailable altogether under RLUIPA. However, the Lockdown Order does not justify the alleged prohibition on plaintiff receiving religious instruction at his cell, and his Complaint can be construed as seeking injunctive relief to remedy that violation, which is ongoing. I therefore recommend, respectfully, that defendants' motion be denied insofar as plaintiff seeks prospective injunctive relief to remedy defendants' alleged refusal to allow him to be visited by an imam, and otherwise granted.
I. BACKGROUND
A. Facts Alleged by Plaintiff
For the purposes of defendants' motion to dismiss, the following facts are accepted as true. Forrest is of Muslim faith. Compl. at 4. While detained at the George R. Vierno Center (GRVC) on Rikers Island awaiting trial, he desired to practice his faith by attending services and by consulting an imam. Id. Instead, he (and another Muslim detainee, Kwaine Thompson) were "told that we can't practice our belief by Warden Renee and Ca[p]tain Carter since our court order[ed] lockdown status prevents the ima[m] from visiting our housing area," and because of a lack of "manpower to bring" the imam to see plaintiff. Id. Although plaintiff's faith dictates that it is "mandatory to pray in the masjid" on Fridays, rather than in his cell, he was not allowed to attend Jumu'ah services. He and Thompson were specifically informed that they "can't go to the masjid" and that their "court order[ed] lockdown status does not allow [them] to have the imam come visit [them]." Id. Later filings by plaintiff assert that these restrictions remained in effect as late as October 2022. See Pl. 10/11/22 Ltr. (Dkt. 47); Pl. 10/3/22 Ltr. (Dkt. 48). Plaintiff further alleges that "the policy that [defendants] establish on [him] . . . is not being im[]plemented on the rest of the Muslim community inside this jail." Compl. at 4. The denial of access to the masjid and to an imam caused him mental and emotional harm because he could not "consult with [his] spiritual advisor." Id.
The Complaint names "Warden Renee," but the waiver of service filed on behalf of this defendant by the DOC (Dkt. 19), identifies the Warden as "Rene," as does defendants' Notice of Motion. (Dkt. 25.) Various public sources reflect that the Deputy Warden at the GRVC when this action was filed was Jean Rene. However, plaintiff's misspelling does not affect the Court's analysis.
Plaintiff also alleges that he is not allowed to go to the clinic if he feels sick. Instead, "the doctors talk to [him] at [his] cell door[ ], breaking the HIPPA [sic] laws by not being confidential" because the other detainees can hear "exactly what [he's] discussing privately with the doctors." Compl. at 5. Similarly, Forrest states that he could not go to the clinic to speak to mental health personnel there when he wanted to "talk personally about what's ailing [him]." Id. This has caused him "great stress and anxiety," to the point where he has considered suicide due to the "daily struggle." Id. He also requested "daily mental health check-ups," to "no avail." Id. He does not allege any physical injuries.
The Complaint references, but does not attach, Forrest's medical records and the Lockdown Order. Id. at 4-5. Plaintiff seeks $2 million in damages for his emotional distress. Id.
B. Procedural History
Forrest filed the Complaint on November 30, 2021, on behalf of himself and Thompson, who was allegedly subject to similar treatment. Compl. at 2. On December 6, 2021, the Hon. Laura Taylor Swain, Chief United States District Judge, severed Thompson's claims and -because the Complaint was unsigned - ordered Forrest to submit a declaration attesting, inter alia, that the Complaint met the requirements of Fed.R.Civ.P. 11(b). (Dkt. 7 at 4.) Forrest submitted the required declaration on December 16, 2021. (Dkt. 9.) On December 27, 2021, the Hon. Alison J. Nathan, United States District Judge, issued an Order of Service dismissing plaintiff's claims against the DOC (which "is not an entity that can be sued") and requesting that the City of New York, Warden Renee, and Captain Carter waive service of summons. (Dkt. 14.) The waivers of service (including, oddly, one from the DOC) were filed on January 18 and 27, 2022. (Dkts. 19-20.) On December 29, 2021, Judge Nathan referred this matter to me for general pretrial management. (Dkt. 17.)
On May 8, 2022, defendants filed their motion to dismiss, supported by a memorandum of law (Def. Mem.) (Dkt. 26). Defendants argued, among other things, that plaintiff failed to make a threshold showing that he "sincerely held" the religious beliefs that defendants allegedly burdened, as required for a Free Exercise claim. Def. Mem. at 8-9. They also argued that the Lockdown Order referenced in the Complaint supplied a "legitimate penological interest" for the restrictions alleged, see id. at 1, 8-10, but did not submit a copy of that order.
On July 11, 2022, the Hon. Lewis J. Liman, United States District Judge, to whom this action was reassigned, expanded my reference to include report and recommendation on the motion to dismiss. (Dkt. 34.) The next day, the Court received a letter from plaintiff, which he labeled his "Amended Complaint," and which provided additional detail regarding his sincerely held religious beliefs. Pl. Opp. Ltr. (Dkt. 35) at ECF p. 1. Plaintiff explained that he converted to Islam in 1979, holds a degree in Islamic studies, and has worked "as an imam, teacher, author and arbitrator to adjudicate in the disputes of Muslims." Id. Plaintiff added that "because [he] embraced Islam at the tender age of 16," he "take[s] to [his] religion seriously," praying five times a day and fasting during Ramadan. Id. He also requested summary judgment, citing RLUIPA and arguing, "there's no dispute that the defendants refused to allow plaintiff to pray in congregation at Jumu'ah and this refusal substantially burden[s] my religious belief and practice[.]" Id. at 2.
Because plaintiff's letter appeared intended, in part, to address defendants' argument concerning the asserted deficiencies in his Free Exercise allegations, the Court construed it as his opposition to the motion to dismiss, and ordered defendants to reply. (Dkt. 36.) On July 18, 2022, the Court received another letter from plaintiff, dated July 9, 2022, which informed the Court that Eid was on July 9, but that he was "not taken to the Mosque to pray Eid in congregation," which "[he] cannot [] perform by [himself]. It has to be performed in congregation." Pl. 7/9/22 Ltr. (Dkt. 37) at ECF p. 1. On August 11, 2022, defendants filed their reply brief, arguing again that the Lockdown Order "made lawful" the restrictions of which plaintiff complained. Def. Reply Mem. (Dkt. 40) at 2.
On November 9, 2022, the Court received two more letters from plaintiff, dated October 3 and 11, 2022, each of which reiterated that he was still not permitted to attend religious services. See Pl. 10/3/22 Ltr.; Pl. 10/11/22 Ltr.
On January 12, 2023, I directed defendants to file a copy of the referenced Lockdown Order. (Dkt. 50.) By letter dated January 19, 2023, defendants explained that the Lockdown Order, "by its express terms, was sealed by the Supreme Court of the State of New York, County of New York, and provides that copies may only be provided to specific persons/entities." (Dkt. 51 at 1.) Defendants therefore requested an extension of time to "permit Defendants . . . to investigate whether the lockdown order may be directly provided to this Court (under seal) without violating the sealing order." Id. at 2. I granted the application in part, requiring defendants to either "submit the lockdown order (with or without a sealing request) or explain why it cannot be provided," no later than January 27, 2023. (Dkt. 52 at 2.)
On January 26, 2023, after a jury trial in the Supreme Court of the State of New York, New York County, plaintiff was convicted of soliciting or providing support for an act of terrorism in the first degree, in violation of N.Y. Penal Law § 490.15, and related charges.
See Manhattan District Attorney's Office, D.A. Bragg Announces All-Count Trial Conviction of Radical Cleric Shaikh Faisal for Recruiting Supporters and Facilitating Efforts to Join ISIS, https://www.manhattanda.org/d-a-bragg-announces-all-count-trial-conviction-of-radical-cleric-shaikh-faisal-for-recruiting-supporters-and-facilitating-efforts-to-join-isis/ (last visited February 1, 2023). Forrest has been remanded to Rikers Island pending sentencing, which is scheduled for February 27, 2023. See New York State Unified Court System eCourts: WebCriminal, Defendant Search, https://iapps.courts.state.ny.us/webcrimattorney/DefendantSearch (last visited February 1, 2023).
On January 27, 2023, defendants filed the Lockdown Order under seal (Dkt. 54-1), along with a letter-motion requesting continued sealing. (Dkt. 53.) The letter-motion attaches an Order dated January 26, 2023, signed by the Hon. Maxwell J. Wiley, Justice of the Supreme Court of the State of New York, directing that "the 'lockdown' order under Indictment No. 957/2017 be unsealed and disclosed for the express and exclusive purpose of providing it to the court and parties in connection with" this action. (Dkt. 53-1 at 2.)
C. The Lockdown Order
The Lockdown Order, dated August 14, 2020, is also signed by Justice Wiley under Indictment No. 957/2017. The order recites that "the Court has been presented with evidence of a compelling government necessity [in] that the defendant's history of encouraging, soliciting, aiding, and conspiring with others to commit acts of terrorism creates a legitimate government concern for the public's safety and the orderly administration of justice." Lockdown Order at ECF p. 2. Justice Wiley found that "imposition of each of the restrictive conditions of confinement on the defendant that are delineated in this Order is reasonably related to the legitimate government purpose of ensuring public safety and the orderly administration of justice[.]" Id. Those "restrictive conditions" include, as relevant here:
(a) That plaintiff be housed in a "highly secure area" in "a twenty-three (23) hour lockdown area on lock-in feed-in status, by any means necessary, to be separated from all other inmates in the area in such a manner to prevent him, to the extent possible, from communicating with or passing materials to other inmates." Lockdown Order ¶ 1.
(b) That plaintiff "may be provided with a period of recreation each day that he is not attending court, in an area outside his cell where he is not able to have contact with any other inmates and poses no security risk." Id. ¶ 20.
(c) That, "[i]f requested by [plaintiff], . . . religious services shall be brought to him in his cell, to the extent that such services would ordinarily be available to him if he were not in lock-down feed-in status, and can be reasonably provided to him in his housing area." Id. ¶ 21.
(d) That "[m]edical services will be provided to [plaintiff] as necessary under the direct supervision of a corrections officer." Id. ¶ 22.
The Lockdown Order further directs that "when any civilian personnel (i.e., an imam or medical worker) must enter the housing area where [plaintiff] is housed, said person shall be accompanied at all times by Department of Correction personnel[.]" Lockdown Order at ECF pp. 8-9.
In addition to these provisions, the Lockdown Order contains other restrictions not directly relevant to this action, including limits on plaintiff's ability to have visits or phone calls (except with his attorney or consular officers from the Jamaican Consulate); extra security whenever plaintiff is transported within the facility or to court, including one-on-one supervision, separate vehicles, and separate holding pens (to "assure, to the extent possible, that he is unable to converse with other inmates or to pass any messages through other inmates"); daily cell searches; and review of all of his outgoing mail (except to his attorney or the Jamaican Consulate). Lockdown Order ¶¶ 2-11, 15-16.
II. LEGAL STANDARDS
When faced with a motion made pursuant to Rule 12(b)(6), the court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). However, those factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted) (quoting Twombly, 550 U.S. at 555, 557). The courts will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79.
In addition to the facts alleged in the complaint itself, a court faced with a Rule 12(b)(6) motion may consider "any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). The court may also consider any matters of which it may take judicial notice, including the proceedings of other courts of record - "not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991); see also Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008) ("Matters judicially noticed by the District Court are not considered matters outside the pleadings.").
As relevant here, the Court may take judicial notice of plaintiff's indictment and the state court proceedings on that indictment, including the Lockdown Order. See, e.g., Perkins v. New York City, 2019 WL 4736950, at *2 (E.D.N.Y. Sept. 27, 2019); McLennon v. New York City, 2015 WL 1475819, at *4 (E.D.N.Y. Mar. 31, 2015); Pinero v. Casey, 2012 WL 832509, at *5 n.7 (S.D.N.Y. Mar. 13, 2012), report and recommendation adopted, 2012 WL 1059674 (S.D.N.Y. Mar. 29, 2012). The existence and contents of the Lockdown Order may also be considered, without converting the motion into one for summary judgment, because it is alleged to be the source of the restrictions that the plaintiff challenges and is thus "integral" to the Complaint. L-7 Designs, 647 F.3d at 422.
B. Pro Se Parties
Courts "afford a pro se litigant 'special solicitude' by interpreting a complaint filed pro se 'to raise the strongest claims that it suggests.'" Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). This mandate "applies with particular force when a plaintiff's civil rights are at issue." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009). Thus, although ordinarily "a plaintiff may not shore up a deficient complaint through extrinsic documents submitted in opposition to a defendant's motion to dismiss," Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 122-23 (S.D.N.Y. 2010), in a pro se case the court may, in its discretion, consider factual allegations made in the plaintiff's opposition papers "as supplementing the Complaint, at least to the extent they are consistent with the allegations in the Complaint." George v. Pathways to Hous., Inc., 2012 WL 2512964, at *6 n.7 (S.D.N.Y. June 29, 2012); accord Adeniji v. New York State Off. of State Comptroller, 2019 WL 4171033, at *2 (S.D.N.Y. Sept. 3, 2019); Elliott v. Nestle Waters N. Am. Inc., 2014 WL 1795297, at *7 (S.D.N.Y. May 6, 2014) (finding it "appropriate to consider" documents attached to a plaintiff's opposition in light of his pro se status). In this case, I have exercised my discretion to consider the factual allegations made in plaintiff's opposition letter, concerning his sincerely held religious beliefs, as supplementing the Complaint. I have also exercised my discretion to consider plaintiff's letters dated July 9, 2022 and October 3, 2022, as supplementing his allegations concerning the duration of the challenged restrictions and the relief requested.
Pro se status, however, "does not exempt a party from compliance with relevant rules of procedural and substantive law." Maisonet, 640 F.Supp. at 348. A Pro se plaintiff, like any other, "must state a plausible claim for relief," Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013), and the court cannot "invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
C. Section 1983
Section 1983 permits civil suits against those who, acting "under color" of state law, have deprived a plaintiff of "any rights, privileges, or immunities secured by the Constitution" or laws of the United States. 42 U.S.C. § 1983. "Section 1983 does not create any federal rights; rather, it provides a mechanism to enforce rights established elsewhere." Soberanis v. City of New York, 244 F.Supp.3d 395, 400 (S.D.N.Y. 2017) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002)). To state a claim under § 1983, "a plaintiff must allege that (1) the defendant was a state actor, i.e., acting under color of state law, when he committed the violation and (2) the defendant deprived the plaintiff of 'rights, privileges or immunities secured by the Constitution or laws of the United States.'" Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citation omitted). Here, it is undisputed that Warden Renee and Captain Carter were "acting under color of state law" in connection with the restrictions imposed upon plaintiff at the GRVC.
"[I]n order to establish a defendant's individual liability" under § 1983, "a plaintiff must show []the defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138-39 (2d Cir. 2013). "[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. In order to establish municipal liability, the plaintiff must show that a municipal "policy or custom" caused the deprivation of a constitutional right. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978); see also Torcivia v. Suffolk Cnty., New York, 17 F.4th 342, 354-55 (2d Cir. 2021).
D. The Free Exercise Clause and RLUIPA
The First Amendment, applicable to the States through the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. "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), including the right "to participate in congregate religious services." Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). "A prisoner's right to practice his religion is, however, not absolute," id. at 308, and the law in this area "must take account of both the rights of prisoners to religious liberty and the security needs inherent in prison administration." Green Haven Prison Preparative Meeting of Religious Soc'y of Friends v. New York State Dep't of Corr. & Cmty. Supervision, 16 F.4th 67, 83 (2d Cir. 2021), cert. denied sub nom. Green Haven Preparative Meeting v. New York State Dep't of Corr. & Cmty. Supervision, 142 S.Ct. 2676 (2022).
To prevail on a Free Exercise claim, "a plaintiff must show that he has a sincerely held religious belief, that it was substantially burdened, and that defendants' conduct was not reasonably related to some legitimate penological interest." Barnes v. Furman, 629 Fed.Appx. 52, 55 (2d Cir. 2015) (summary order); accord Holland v. Goord, 758 F.3d 215, 220-23 (2d Cir. 2014). Courts must evaluate four factors in making the reasonableness determination, derived from Turner v. Safley, 482 U.S. 78, 89-90 (1987):
[W]hether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; whether prisoners have alternative means of exercising the burdened right; the impact on guards, inmates, and prison resources of accommodating the right; and the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.Green Haven Prison Preparative Meeting, 16 F.4th at 84 (quoting Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006)).
RLUIPA protects the exercise of religion by institutionalized individuals, including prisoners. Under RLUIPA, "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution" unless the government demonstrates that imposition of the 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." Green Haven Prison Preparative Meeting, 16 F.4th at 80 (alteration in original) (quoting 42 U.S.C. § 2000cc-1(a)).
"[W]hether a prisoner sufficiently pleads a substantial burden on a sincerely held religious belief under RLUIPA involves the same threshold analysis as under the First Amendment." Bryant v. Capra, 2020 WL 508843, at *5 (S.D.N.Y. Jan. 31, 2020); see also Powell v. City of New York, 2016 WL 4159897, at *6 (S.D.N.Y. July 14, 2016), report and recommendation adopted, 2016 WL 4147203 (S.D.N.Y. Aug. 3, 2016). Once that threshold is cleared, "RLUIPA provides a more stringent standard than does the First Amendment, barring the government from imposing a substantial burden on a prisoner's free exercise unless the challenged conduct or regulation 'further[s] a compelling governmental interest and [is] the least restrictive means of furthering that interest." Holland, 758 F.3d at 224 (alternation in original) (quoting Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010)).
E. Right to Privacy
"The Fourteenth Amendment's due process clause protects individuals from arbitrary governmental intrusions into their medical records." Talarico v. Port Auth. of New York & New Jersey, 367 F.Supp.3d 161, 169 (S.D.N.Y. 2019) (quoting Hancock v. Cty. of Rensselaer, 882 F.3d 58, 65 (2d Cir. 2018)). However, the Constitution "does not guarantee that a medical examination of a prisoner must be conducted in private." Pena v. Downstate Corr. Facility Med. Dep't, 2020 WL 1467372, at *3 (S.D.N.Y. Mar. 25, 2020). "A constitutional violation only occurs when the individual's interest in privacy outweighs the government's interest in breaching it." Hancock, 882 F.3d at 65; see also Williams v. City of New York, 2021 WL 4267736, at *3 (S.D.N.Y. Sept. 20, 2021) (prison officials can impinge on the right to medical privacy "to the extent that their actions are reasonably related 'to legitimate penological interests'") (quoting Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999)); Arroyo v. Does #1-#4, 2022 WL 161478, at *4 (S.D.N.Y. Jan. 18, 2022) (same).
Moreover, "[T]he interest in the privacy of medical information will vary with the condition." Powell, 175 F.3d at 111. "Those medical conditions entitled to confidentiality are conditions that are (i) 'excruciatingly private and intimate [in] nature' and (ii) 'likely to provoke both an intense desire to preserve one's medical confidentiality, as well as hostility and intolerance from others.'" Swinson v. City of New York, 2022 WL 142407, at *7 (S.D.N.Y. Jan. 14, 2022) (alteration in original) (quoting Matson v. Bd. of Educ. of City Sch. Dist. of New York, 631 F.3d 57, 64 (2d Cir. 2011)) (collecting cases). Courts "have declined to recognize a claim for violation of medical privacy with regard to disclosure of mental health disorders because such disclosure was not likely to expose an inmate to discrimination or intolerance." Flores v. City of New York, 2022 WL 4705949, at *22 (S.D.N.Y. Aug. 8, 2022) (collecting cases), report and recommendation adopted, 2022 WL 4592892 (S.D.N.Y. Sept. 30, 2022).
Plaintiff accuses defendants of "breaking the HIPPA [sic] laws," Compl. at 5, referring to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996). However, "there is no private right of action under HIPAA, express or implied." Meadows v. United Servs., Inc., 963 F.3d 240, 242 (2d Cir. 2020).
F. Money Damages and Injunctive Relief
Section 1997e(e) of the PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury[.]" 42 U.S.C. § 1997e(e). Thus, a plaintiff suing for damages pursuant to § 1983 must plead and prove a physical injury that is "more than de minimis" before he may pursue damages for mental or emotional injuries. Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999). "Cases asserting emotional harm, unaccompanied by a claim of physical harm, are routinely dismissed." Greene v. D.O.C., 2012 WL 694031, at *3 (S.D.N.Y. Mar. 5, 2012) (collecting cases).
Since the Eleventh Amendment "does not preclude suits against state officers in their official capacity for prospective injunctive relief to prevent a continuing violation of federal law," Henrietta D. v. Bloomberg, 331 F.3d 261, 287 (2d Cir. 2003) (citing Ex parte Young, 209 U.S. 123, 155-56 (1908)), a plaintiff suing under § 1983 may pursue prospective injunctive relief against the state officials who "had personal involvement in the violations of [their] rights." Pugh v. Goord, 571 F.Supp.2d 477, 517 (S.D.N.Y. 2008) (permitting plaintiffs to seek prospective relief against prison officials who allegedly burdened their First Amendment rights by failing to mandate separate Friday prayer services for Shi'ite and Sunni inmates); see also Dixon v. Santiago, 2015 WL 9582729, at *3 (D. Conn. Dec. 30, 2015) (dismissing plaintiff's damages claims under § 1983 but permitting him to pursue "official-capacity" claims for declaratory and prospective injunctive relief against prison officials involved in subjecting him to allegedly unconstitutional strip searches).
Money damages are not recoverable under RLUIPA, regardless of the nature of the injury alleged. See Holland, 758 F.3d at 224 ("RLUIPA does not authorize claims for monetary damages against state officers in either their official or individual capacities."). Thus, "a plaintiff may only obtain injunctive or declaratory relief as a remedy for a RLUIPA violation." Shakur v. Elders, 2021 WL 4711484, at *13 (D. Conn. Oct. 8, 2021); see also Bryant, 2020 WL 508843, at *3-4 ("plaintiffs may seek injunctive relief under [RLUIPA]").
G. Qualified Immunity
Qualified immunity is an affirmative defense to a § 1983 claim for damages. It "shields federal and state officials from money damages unless [the] plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir. 2019) (alteration in original) (internal citations omitted) (quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016)). However, qualified immunity is not a defense to a claim for prospective injunctive relief. Vincent v. Yelich, 718 F.3d 157, 177 (2d Cir. 2013); see also Dixon, 2015 WL 9582729, at *3 (permitting claims for injunctive relief to proceed against prison officials after dismissing damages claims on qualified immunity grounds).
III. DISCUSSION
A. Plaintiff's Free Exercise and RLUIPA Claims
Thanks to his opposition letter, Pl. Opp. Ltr. at ECF p. 2, plaintiff has adequately alleged that defendants' refusal to take him to religious services or bring an imam to his cell "substantially burdens his sincerely held religious beliefs." Green Haven Prison Preparative Meeting, 16 F.4th at 84. He has also adequately alleged that Warden Renee and Captain Carter were personally involved in the deprivations of which he complains. But he concedes that the restrictions on his religious exercise and healthcare delivery were imposed (at least in part) to implement a court order, Compl. at 4, which in turn was premised on specific findings, made by the judge presiding over his criminal case, that plaintiff had a "history of encouraging, soliciting, aiding, and conspiring with others to commit acts of terrorism." Lockdown Order at ECF p. 2. Justice Wiley also found that "imposition of each of the restrictive conditions of confinement on the defendant that are delineated in this Order is reasonably related to the legitimate government purpose of ensuring public safety and the orderly administration of justice[.]" Id.
The questions for this Court remain the same as in other Free Exercise and RLUIPA cases, including whether the restrictions imposed were "reasonably related to some legitimate penological interest," Barnes, 629 Fed.Appx. at 55, and/or imposed "in furtherance of a compelling governmental interest," Green Haven Prison Preparative Meeting, 16 F.4th at 80. In this case, however, those questions "must be analyzed bearing in mind that [plaintiff] was subject to a court issued Lockdown Order" that presumptively supplies the required interest. Anduze v. City of New York, 2022 WL 4586967, at *8 (S.D.N.Y. Aug. 8, 2022) (reasoning that "a penological purpose for the restrictions - the implementation of a state court lockdown order - is presumptively valid, at least insofar as the [restrictions imposed by jail officials] are consistent with [that order]"), report and recommendation adopted, 2022 WL 4547420 (S.D.N.Y. Sept. 29, 2022); see also Engebretson v. Mahoney, 724 F.3d 1034, 1042 (9th Cir. 2013) ("prison officials . . . charged with executing facially valid court orders enjoy absolute immunity from § 1983 liability for conduct prescribed by those orders"); Avery v. Turn Key Health Clinics, LLC, 2020 WL 714176, at *9 (W.D. Ark. Feb. 12, 2020) (noting that "enforcement of a court's orders" is a "legitimate penological interest[]," and dismissing First Amendment claim based on the prison official's "decision to obey the state court's order" suspending inmate's communication privileges), aff'd, 839 Fed.Appx. 26 (8th Cir. 2021); Pickford v. Lake Cnty. Cmty. Corr., 2015 WL 3822262, at *2 (N.D. Ind. June 19, 2015) ("Since the four LCCC defendants fully complied with the valid state court order, Pickford has not stated a plausible claim against any of the LCCC defendants.").
Paragraph 1 of the Lockdown Order places plaintiff on "lock-in feed-in status" so as to separate him from all other inmates, while paragraph 21 specifies that religious services, if requested, are to be "brought to him in his cell." Because it was the presumptively valid Lockdown Order that prevented plaintiff from attending religious services in the company of other inmates - and because he has made no effort to show that the "articulated concerns were irrational," Salahuddin, 467 F.3d at 275 (cleaned up) (quoting Ford, 352 F.3d at 595) - his Free Exercise and RLUIPA claims, to the extent based on defendants' refusal to permit plaintiff to attend congregate religious services, should be dismissed. See Anduze, 2022 WL 4586967, at *8; Pickford, 2015 WL 3822262, at *2.
The Lockdown Order does not, however, justify defendants' alleged refusal to bring an imam to plaintiff's cell to meet with him there. According to the Complaint, plaintiff and Thompson were told that their "lockdown status prevents the imam from visiting our housing area." Compl. at 4. They were also told that the imam "won't be escorted because they don't have the manpower to bring him to us." Id. In fact, the Lockdown Order specifically provides that religious services are to be brought to plaintiff in his cell, "to the extent that such services would ordinarily be available to him if he were not on lock-in feed-in status, and can be reasonably provided to him in his housing area." Lockdown Order ¶ 21. It further specifies that "any civilian personnel," including an imam, must "be accompanied at all times by [DOC] personnel." Id. at ECF pp. 8-9. Since nothing in the Lockdown Order "prevents the imam from visiting [plaintiff's] housing area," Compl. at 4, the Lockdown Order does not furnish a valid penological reason, much less a compelling government interest, that would justify defendants' alleged refusal to permit visits by clergy. See Flores, 2022 WL 4705949, at *19 (to the extent a prison regulation "is overbroad and inconsistent with the goal of the Lockdown Order, there may be a valid [constitutional] claim"); cf. Anduze, 2022 WL 4586967, at *8 (restrictions are "presumptively valid" insofar as they are "consistent with the state court's Lockdown Order").
Defendants do not identify any other reason for denying plaintiff access to an imam in his cell. While it is possible that there was a lack of manpower at the GRVC, and that the deficit was so severe that the facility could not provide the necessary escort for an imam without jeopardizing safety or security elsewhere, nothing in the Complaint compels that conclusion. Thus, the mere fact that the individual defendants told plaintiff and Thompson that "they don't have the manpower to bring [the imam] to us," Compl. at 4, is insufficient to establish that their conduct was justified by a legitimate penological interest, as required by the Free Exercise Clause, much less that the deprivation of was "in furtherance of a compelling government interest" and was the "least restrictive means" of achieving that end, as required by RLUIPA, 42 U.S.C. § 2000cc-1(a). Defendants' motion should therefore be denied, and plaintiff should be permitted to pursue his § 1983 and RLUIPA claims against Warden Renee and Captain Carter, to the extent those claims are based on the individual defendants' refusal to allow an imam to visit plaintiff at his cell.
However, nothing the Complaint suggests that Warden Renee and Captain Carter were following a municipal "policy or custom," Monell, 436 U.S. at 691, when they told plaintiff that an imam could not visit his cell. Consequently, while plaintiff has plausibly pled a limited claim under the Free Exercise Clause and RLUIPA as against the individual defendants, he has not stated a claim for municipal liability against the City of New York.
B. Plaintiff's Privacy Claim
Plaintiff has not pled a cognizable privacy claim against any defendant. He alleges that if he felt ill, the doctors came to his cell, such that he was required to "talk personally about what's ailing [him]" in a non-confidential setting, where other inmates could overhear. Compl. at 5. But he does not allege that either Warden Renee or Captain Carter was personally involved in the alleged deprivation of his right to privacy, and therefore has not stated a § 1983 claim against either of them on this basis. See Walker, 717 F.3d at 123 n. 4 (affirming "the dismissal of [plaintiff's] claims against [the director and deputy director of the Bureau of Prisons] because he did not assert that they were personally involved in the alleged constitutional violations"). Nor does Forrest allege any facts suggesting that his in-cell medical care resulted from a municipal policy or custom. To the contrary: as discussed below, it resulted from the Lockdown Order, which was issued in plaintiff's criminal case and names only him. He has therefore failed to plead any privacy claim against any of the defendants he has named in this action.
Even if plaintiff had identified one or more prison officials who were personally involved in the alleged privacy infringement, his claim would fail, because he pleads no "facts about the nature of the medical information that he wished to keep confidential," Arroyo, 2022 WL 161478, at *5, making it impossible for the Court to evaluate "the strength of his privacy interest." Id. (dismissing detainee's § 1983 claim based on allegations that prison officials wrongfully disclosed unspecified medical information).
Moreover, prison officials can "permissibly impinge" on the right to medical privacy if "their actions are 'reasonably related to legitimate penological interests.'" Arroyo, 2022 WL 161478, at *4 (quoting Powell, 175 F.3d at 112). Here, although the Lockdown Order does not prohibit plaintiff from visiting the clinic for medical care, it does require that all medical services be provided to him "under the direct supervision of a corrections officer." Lockdown Order ¶ 22. Some impingement on his medical privacy is thus mandated by the Lockdown Order, giving defendants a legitimate penological interest in the challenged restrictions. See Rodriguez v. Heit, 2018 WL 3121626, at *5 (N.D.N.Y. Mar. 30, 2018) ("There are obvious security reasons" for a prison policy requiring correction officers to escort inmates to medical appointments and "remain with the inmates" throughout the procedure), report and recommendation adopted, 2018 WL 2316687 (N.D.N.Y. May 22, 2018). Additionally, the Lockdown Order contemplates that "medical worker[s]" will enter plaintiff's housing area, "accompanied by [DOC] personnel who shall ensure that [plaintiff] is not given any materials other than those needed for medical treatment[.]" Id. at ECF pp. 8-9.
Since plaintiff has failed to plead that any of the named defendant deprived him of his constitutional right to medical privacy, has failed to describe the nature of the medical information at issue, and has failed to allege any facts suggesting that his in-cell medical care was not related to defendants' "legitimate penological interest" or that his personal information was disclosed gratuitously, see Williams, 2021 WL 4267736, at *3, he has failed to state a cognizable claim based on his constitutionally-protected right to privacy.
C. Available Relief
Forrest seeks monetary damages, in the amount of $2 million, based on the mental and emotional damage he suffered as a result of defendants' alleged violations. Compl. at 5. Having pled no physical injury, however, plaintiff is barred under the PLRA from recovering money damages for that claimed mental suffering. Defendants assert that this bar on monetary recovery merits dismissal of plaintiff's claims altogether, because he "alleges only emotional and mental injuries and does not appear to allege any physical injuries." Def. Reply Mem. at 7. However, plaintiff has not disclaimed injunctive relief, and in his recent correspondence appears to request it, albeit not by name. See, e.g., Pl. 7/9/22 Ltr. (informing the Court that he was still being denied access to the religious services); Pl. 10/3/22 Ltr. ("There's no need to deny me my Friday prayers because I am of noble character. I do not abuse staff members or fellow inmates, verbally or physically."). Thus, affording "special solicitude" to plaintiff as a Pro se litigant, as required, Hartford Pub. Works Dep't, 879 F.3d at 489, I construe the Complaint as seeking a mandatory injunction compelling defendants to, inter alia, bring an imam to his housing area for religious instruction, counseling, and/or prayer.
D. Opportunity to Amend
While leave to amend a complaint should be freely given "when justice so requires," Fed.R.Civ.P. 15(a)(2), it is "within the sound discretion of the district court to grant or deny leave to amend." McCarthy, 482 F.3d at 200. Here, plaintiff does not seek leave to amend and - despite his multiple post-briefing submissions - has never described any facts that, if pled, would render viable any of the claims that I recommend be dismissed. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (affirming denial of leave to amend where the Pro se plaintiff "suggested no new material she wishes to plead"). As to those claims, moreover, it is difficult to imagine facts that could overcome the obstacle posed by the Lockdown Order. Consequently, I do not recommend that plaintiff be granted leave to amend his pleading.
IV. CONCLUSION
For the foregoing reasons, I recommend, respectfully, that the motion to dismiss (Dkt. 26) be GRANTED IN PART, and that all of plaintiff's claims against the City of New York, as well as his claims based on the individual defendants' alleged refusal to allow him to attend congregate religious services or visit the health clinic, be DISMISSED. However, the motion should be DENIED as to plaintiff's § 1983 and RLUIPA claims against Warden Renee and Captain Carter insofar as (i) those claims are based on these defendants' alleged refusal to bring an imam to his cell for religious instruction, counseling, and prayer, and (ii) plaintiff seeks injunctive relief rather than damages.
I now turn to defendants' application for continued sealing of the Lockdown Order. I have significant doubts as to whether defendants can meet the standards set out in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), and its progeny, particularly since similar state court orders, which in some cases were also sealed in state court, have been filed on the public docket in other federal cases and/or discussed in detail in the resulting opinions, without any apparent difficulties. See, e.g., Williams, 2022 U.S. Dist. LEXIS 140969, at *7; Flores, 2022 WL 4705949, at *2; Anduze, 2022 WL 4586967, at *2; Weston v. Capra, 2022 WL 1811161, at *3 (S.D.N.Y. Apr. 13, 2022), report and recommendation adopted, 2022 WL 2914506 (S.D.N.Y. July 25, 2022), appeal dismissed, 2022 WL 18207319 (2d Cir. Dec. 15, 2022).
Here, defendants' sealing application relies entirely on the fact that the Lockdown Order was under seal in state court. They make no effort to show that continued sealing, in this Court, would be consistent with the presumption in favor of public access to judicial documents described in Lugosch, 435 F.3d at 119-20. Consequently, defendants must submit a supplemental letter-brief, no later than February 8, 2023, addressing the federal sealing standards.
In the meantime, the Clerk of Court is respectfully directed to file this Report and Recommendation under seal at the "selected parties" viewing level, such that only the attorneys appearing for the parties, the pro se plaintiff, and court personnel may view it.
If defendants withdraw their sealing request, or if the Court denies it, the Lockdown Order and this Report and Recommendation will be unsealed. If defendants substantiate their sealing request, and the Court grants it, defendants will be given an opportunity to submit proposed redactions before this Report and Recommendation is filed in public view.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Lewis J. Liman, United States District Judge, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Liman. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).