Hamlin v. Smith

Full title: JOJO HAMLIN, Plaintiff, v. CHERYL SMITH, Assistant Warden, CURTIS…

Court: United States District Court, D. Colorado

Date published: Jul 12, 2010

Civil Action No. 07-cv-01058-CBS-KMT (D. Colo. Jul. 12, 2010)

Opinion

Civil Action No. 07-cv-01058-CBS-KMT.

July 12, 2010

MEMORANDUM OPINION AND ORDER

CRAIG SHAFFER, Magistrate Judge

This civil action comes before the court on "Defendants' Renewed Motion for Summary Judgment" (filed April 30, 2010) (doc. # 115). On October 8, 2009, the above-captioned case was referred to Magistrate Judge Craig B. Shaffer to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73, and D.C. COLO. LCivR 72.2. ( See doc. # 91). The court has reviewed the Motion, the exhibits and affidavits, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

The events forming the basis of this civil action occurred at the Fort Lyon Correctional Facility ("FLCF") of the Colorado Department of Corrections. Mr. Hamlin is currently incarcerated in the Bent County Correctional Facility ("BCCF"). Proceeding pro se, Mr. Hamlin filed his initial 19-page Complaint on or about May 21, 2007 pursuant to 42 U.S.C. § 1983, alleging eight claims against Cheryl Smith, Curtis Robinette, Alan Trujillo, Rae Timmie, Daniel Barbero, Lou Archuleta, and Aristedes Zavaras. ( See doc. # 3). At the court's direction ( see doc. # 10), Mr. Hamlin filed his 25-page Amended Complaint on July 13, 2007, against all of the same Defendants except Defendant Barbero. ( See doc. # 11). Mr. Hamlin alleged denial of his right to practice his religion, in violation of his rights under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc- 2000cc-5, the Colorado Constitution, and the United States Constitution.¹ Mr. Hamlin seeks various forms of relief, including monetary damages "for pain and suffering." ( See id.).

1 RFRA does not apply to state actors such as the Defendants here. On June 25, 1997, the Supreme Court invalidated RFRA as it applied to the states, holding that Congress had exceeded its powers under the Fourteenth Amendment's enforcement clause. City of Boerne v. Flores, 521 U.S. 507, 536 (1997). In September 2000, Congress responded with RLUIPA, 42 U.S.C. §§ 2000cc to cc-5. RLUIPA does not change the holding of City of Boerne, 521 U.S. at 507.
To the extent Mr Hamlin alleges violation of the Colorado Constitution, "Section 1983 does not . . . provide a basis for redressing violations of state law, but only for those violations of federal law done under color of state law." Jones v. City County of Denver, Colo., 854 F.2d 1206, 1209 (10th Cir. 1988); see also Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994) (It is well established that a claim cannot be brought under § 1983 for an alleged violation of state law.).

On August 27, 2008, Magistrate Judge Tafoya filed a "Recommendation of United States Magistrate Judge" on Defendants' Motion to Dismiss Plaintiff's Amended Complaint. ( See doc. # 53). After no party objected, on September 10, 2008, District Judge Nottingham granted in part and denied in part Defendants' Motion. District Judge Nottingham dismissed with prejudice Mr. Hamlin's claims against all Defendants in their official capacities as barred by the Eleventh Amendment, dismissed with prejudice Claims Two, Six, Seven, and Eight as barred by the Eleventh Amendment, dismissed Defendant Smith in her individual capacity from Claim Four for failure to allege personal participation, dismissed Defendants Timmie, Archuleta, and Zavaras from the Amended Complaint for failure to allege personal participation, dismissed with prejudice all Defendants in their individual capacities under RLUIPA, dismissed with prejudice Mr. Hamlin's damages claims under RLUIPA, dismissed with prejudice Mr. Hamlin's state law claims for lack of jurisdiction, and permitted this action to proceed as to Claims One, Three, Four, and Five for injunctive relief and an award of nominal damages in the sum of one dollar pursuant to § 1983 and RLUIPA. ( See "Order Accepting Magistrate Judge's Recommendation" (doc. # 54)).

On October 31, 2008, upon the resignation of District Judge Nottingham, this case was reassigned to District Judge Krieger. ( See doc. # 65). On October 8, 2009, District Judge Krieger determined that while the parties' consent to the availability of a Magistrate Judge to exercise jurisdiction was untimely, "the parties have unanimously expressed their desire to proceed before a Magistrate Judge." ( See doc. # 91). Judge Krieger referred this case to Magistrate Judge Watanabe "for all purposes pursuant to 28 U.S.C. § 636(c) and D.C. COLO. LCivR 72.2." ( See id.). On October 27, 2009, Magistrate Judge Watanabe issued his "Order Directing Reassignment to Another Magistrate Judge," based on his assignment to the case between July 26, 2007 and January 9, 2008 ( See doc. # 95). On October 28, 2009, the case was reassigned to Magistrate Judge Shaffer. This civil action is proceeding on the Amended Complaint (doc. # 11), as modified by the court's Order (doc. # 54), to the extent that Mr. Hamlin may be entitled to injunctive relief and/or an award of nominal damages pursuant to § 1983 based on his First Amendment rights against Defendants in their individual capacities and pursuant to RLUIPA against Defendants in their official capacities on: (1) Claim One against Defendants Robinette and Trujillo; (2) Claim Three against Defendants Smith, Robinette, and Trujillo; (3) Claim Four against Defendants Robinette and Trujillo; and (4) Claim Five against Defendants Smith, Robinette, and Trujillo.

Mr. Hamlin alleges he started practicing the Wiccan Faith in 2003, prior to his incarceration at FLCF. ( See Amended Complaint ("AC") (doc. # 11) at p. 4 of 25). Mr. Hamlin's remaining claims all relate to his inability to practice his religion, alleging violation of his rights under the First Amendment and RLUIPA. ( See doc. # 11). In Claim One, Mr. Hamlin alleges he "has been denied his constitutional right to practice his religion due to the Defendants' failure to post notice" of the Wiccan services. ( See id. at p. 8 of 25). Mr. Hamlin alleges that Defendants Smith and Robinette were to ensure he had the opportunity to participate in the practice of his religion by publishing a schedule of the group services as required by AR 800-01. ( See id. at ¶¶ 34-35).

In Claim Three, Mr. Hamlin alleges he "has been placed under fear and threat that if he exercises his constitutional right to practice his religion he will suffer a penalty." ( See doc. # 11 at p. 12 of 25). Mr. Hamlin asserts that Defendant Trujillo led him to believe he will be retaliated against for practicing his religion. ( See id. at ¶ 83). Mr. Hamlin alleges the Wiccan congregation was strip-searched and given drug tests at the conclusion of a service on September 16, 2006. ( See id. at ¶ 19). Mr. Hamlin contends the Wiccan Faith Group is being treated differently than other religious groups at FLCF that have not been strip-searched or subjected to urinalysis at the conclusion of their services. ( See id. at ¶¶ 84, 86).

In Claim Four, Mr. Hamlin alleges he "has been denied his constitutional right to practice his religion by being denied ritual tools and supplies." ( See doc. # 11 at p. 13 of 25). Mr. Hamlin states he has been denied chalk, candles, quarters, a wand, and charcoal, all used to practice his religion. ( See id. at ¶¶ 89-99).

In Claim Five, Mr. Hamlin alleges that to attend Wiccan services, he is required "to endure the harsh, unhealthy weather conditions." ( See id. at p. 14 of 25). Mr. Hamlin alleges that the Wiccan Faith Group was given an indoor faith group area, but after a couple of meetings Defendants Trujillo and Robinette informed the group that they could no longer burn herbs and oils indoors. ( See id. at ¶¶ 105, 107). Mr. Hamlin states his inability to tolerate cold has forced him to miss several Wiccan services and denied him the ability to practice his religion. ( See id. at ¶¶ 109, 110).

Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56 on all of Mr. Hamlin's remaining claims.

II. Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

To meet the burden of production required to support summary judgment, the movant need only point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law. Summary judgment will then lie if the movant establishes entitlement to judgment as a matter of law given [the] uncontroverted, operative facts. . . . Factual disputes that are irrelevant or unnecessary will not be counted.

Where a movant has met the initial burden required to support summary judgment, the non-movant then must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56(e) or explain why he cannot . . . under Rule 56(f). Conclusory allegations made by a non-movant will not suffice. Instead, sufficient evidence (pertinent to the material issue) must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.

Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674-75 (10th Cir. 2002) (citations omitted).

At a hearing on April 30, 2010, with Mr. Hamlin present via telephone, the court directed that Mr. Hamlin's response to Defendants' Renewed Motion for Summary Judgment be filed on or before May 24, 2010. ( See Courtroom Minutes/Minute Order (doc. # 113)). As of this date, Mr. Hamlin has not filed any response to Defendants' Motion. Fed.R.Civ.P. 56(e) specifically contemplates the consequences of failing to oppose a summary judgment motion:

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided by this rule — set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

See also Adickes v. S.H. Kress Co., 398 U.S. 144, 160-61 (1970) (the burden on the nonmovant to respond arises only if the summary judgment motion is properly "supported" as required by Rule 56(c)), superseded on other grounds by Celotex Corp v. Catrett, 477 U.S. 317 (1986). "Accordingly, summary judgment is 'appropriate' under Rule 56(e) only when the moving party has met its initial burden of production under Rule 56(c)." Murray v. City of Tahlequah, Oklahoma, 312 F.3d 1196, 1200 (10th Cir. 2002). "If the evidence produced in support of the summary judgment motion does not meet this burden, summary judgment must be denied even if no opposing evidentiary matter is presented." Id. (internal quotation marks and citation omitted). "If the nonmoving party fails to respond, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and the moving party is entitled to judgment as a matter of law." Id. See also Barton v. City and County of Denver, 432 F. Supp. 2d 1178, 1188 (D. Colo. 2006) (although plaintiff's failure to make a substantive response constituted a confession of facts asserted by defendants, it remained incumbent upon the court to make the specific determinations required under Rule 56(c)).

As Mr. Hamlin submitted the AC sworn under penalty of perjury ( see doc. # 11 at p. 19 of 25), the court may treat it as an affidavit. Green v. Branson, 108 F.3d 1296, 1301 n. 1 (10th Cir. 1997). See also Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988) ("Although a nonmoving party may not rely merely on the unsupported or conclusory allegations contained in his pleadings, a verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Rule 56(e)."). "Rule 56(e) requires that the affidavit be based on personal knowledge, contain facts which would be admissible at trial, and show that the affiant is competent to testify on the matters stated therein." Conaway, 853 F.2d at 792. Where the court treats a verified complaint as an affidavit, whether a party's affidavit in opposition to summary judgment is "sufficient to create a genuine issue of material fact must be evaluated in light of the principle that 'conclusory allegations without specific supporting facts have no probative value.'" Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990) (quoting Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985)). "[T]here may be cases where the sole reliance on a verified complaint would be insufficient to meet a nonmoving party's burden . . ., especially when the allegations contained in the pleading are merely conclusory." Conaway, 853 F.2d at 792-93. The court must determine whether Mr. Hamlin has met his burden of presenting specific facts to overcome Defendants' Motion.

III. Analysis A. Claim One

Mr. Hamlin alleges that Defendants Robinette and Trujillo denied his constitutional right to practice his religion due to their failure to post notice of Wiccan services according to Colorado Department of Corrections ("CDOC") Administrative Regulations on February 7, 2006, March 3, 2006, March 20, 2006, May 1, 2006, November 2006, January 2007, and March of 2007. ( See AC (doc. # 11) at ¶¶ 6, 32-35). Defendants argue that Mr. Hamlin's allegations fail to state and the evidence fails to show a violation under either the First Amendment or RLUIPA.

"It is well-settled that '[i]nmates . . . retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion.'" Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)). "Yet such protections are not without reasonable limitations." Kay, 500 F.3d at 1218. "The Supreme Court has cautioned that prison inmates are also subject to the 'necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.'" Kay, 500 F.3d at 1218 (quoting O'Lone, 482 U.S. at 348). See also Overton v. Bazzeta, 539 U.S. 126, 131 (2003) ("An inmate does not retain rights inconsistent with proper incarceration."). "Accordingly, the Court has held that a prison regulation imping[ing] on inmates' constitutional rights . . . is valid if it is reasonably related to legitimate penological interests." Kay, 500 F.3d at 1218 (internal quotation marks and citation omitted). See also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) ("What constitutes a reasonable opportunity is determined in reference to legitimate penological objectives.") (internal quotation marks and citation omitted); Hammons v. Saffle, 348 F.3d 1250, 1254-55 (10th Cir. 2003) ("Inmates' free exercise rights are . . . subject to prison restrictions rationally related to legitimate penological interests."). Prison administrators, not the courts, should "make the difficult judgments concerning institutional operations. . . ." Turner v. Safley, 482 U.S. 78, 89 (1987). See also Shaw v. Murphy, 532 U.S. 223, 229-30 (2001) (in the First Amendment context "some rights are simply inconsistent with the status of a prisoner or 'with the legitimate penological objectives of the corrections system'") (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).

"Thus, in order to allege a constitutional violation based on a free exercise claim, a prisoner-plaintiff must survive a two-step inquiry." Kay, 500 F.3d at 1218. "First, the prisoner-plaintiff must first [sic] show that a prison regulation 'substantially burdened . . . sincerely-held religious beliefs.'" Kay, 500 F.3d at 1218 (quoting Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir. 2007)). "Second, prison officials-defendants may 'identif[y] the legitimate penological interests that justif[ied] the impinging conduct.'" Kay, 500 F.3d at 1218 (quoting Boles, 486 F.3d at 1182). "The burden then returns to the prisoner to 'show that these articulated concerns were irrational.'" Kay, 500 F.3d at 1219 n. 2 (quoting Salahuddin v. Goord, 467 F.3d 263, 275 (2d Cir. 2006)).

"At that point, courts balance the factors set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987), to determine the reasonableness of the regulation: (1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner's rights.

Kay, 500 F.3d at 1219 (citation omitted).

To proceed with his RLUIPA claim, Mr. Hamlin "must demonstrate he wishes to engage in (1) a religious exercise (2) motivated by a sincerely held belief, which exercise (3) is subject to a substantial burden imposed by the government." Abdulhaseeb, 600 F.3d at 1312 (citations omitted).

[A] religious exercise is substantially burdened under [RLUIPA] when a government (1) requires participation in an activity prohibited by a sincerely held religious belief, or (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief, such as where the government presents the plaintiff with a Hobson's choice-an illusory choice where the only realistically possible course of action trenches on an adherent's sincerely held religious belief.

Abdulhaseeb, 600 F.3d at 1315 (citations omitted). If Mr. Hamlin fails to demonstrate a substantial burden, the inquiry ends. Even if Mr. Hamlin meets the substantial burden test, "it does not necessarily follow that [he] has established a RLUIPA violation." Abdulhaseeb, 600 F.3d at 1318. "Rather, the burden of proof shifts to the Defendants to show the substantial burden results from a compelling governmental interest and that the government has employed the least restrictive means of accomplishing its interest." Abdulhaseeb, 600 F.3d at 1318 (internal quotation marks and citation omitted).

First, to the extent that Mr. Hamlin alleges violation of his constitutional rights based on Defendants' failure to comply with CDOC Administrative Regulations regarding posting of notices for services, violation of a prison regulation does not state a constitutional claim under § 1983. See Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993) ("failure to adhere to administrative regulations does not equate to a constitutional violation"). See also Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) ("[t]o the extent [plaintiff] seeks relief for alleged violations of state statutes and prison regulations, . . . he has stated no cognizable claim under § 1983") (citations omitted).

Second, the evidence indicates that written notices specifically naming Mr. Hamlin were posted and that postings and notification were sent over the television titler device at FLCF. ( See Affidavit of Curtis Robinette, Defendants' Exhibit A to Motion (doc. # 115-1) at pp. 3 of 114, ¶¶ 7-9; Exhibit A-4 (doc. # 115-1 at pp. 10-89 of 114); Exhibit A-5 (doc. # 115-1 at pp. 90-99 of 114); Exhibit A-6 (doc. # 115-1 at pp. 100-09 of 114)). Mr. Hamlin has alleged that Defendants failed to post notices for services for Imbolc Sabat and the Full Moon Rite on February 7, 2006 and for the Full Moon Rite on March 3, 2006. ( See AC (doc. # 11) at ¶ 6). The CDOC's calendar indicates that Imbolc Sabat was on February 2, 2006 and the Full Moon Rite was on February 13, 2006 and March 14, 2006. ( See doc. # 115-1 at pp. 31, 56, 91 of 114). Mr. Hamlin has not presented any evidence regarding the significance of the other dates he alleges in the AC. Defendants have also presented evidence that notices were posted on March 6, 2006 for Ostara Sabat on March 20, 2006, on April 27, 2006 for Beltane Sabat on May 1, 2006, on October 23, 2006 for the Full Moon Rite on November 5, 2006, on December 26, 2006 for the Full Moon Rite on January 3, 2007, and on February 27, 2007 for the Full Moon Rite on March 3, 2007. ( See doc. # 115-1 at pp. 2-3, 33, 58, 82, 90, 92-95, 100, 102, 105-06 of 114). Mr. Hamlin has not refuted Defendants' evidence that the notices were posted. The court concludes that Mr. Hamlin does not state or establish a violation of either the First Amendment or RLUIPA in Claim One.

B. Claim Three

Mr. Hamlin alleges that Defendant Trujillo has led "Mr. Hamlin to firmly believe he will be retaliated against for practicing his religion with other Wicca Members" by subjecting the Wicca Faith Group to strip search and drug testing. ( See AC (doc. # 11) at ¶¶ 81-87). Mr. Hamlin makes no allegations in Claim Three regarding any other Defendants. As noted above, in order to establish a constitutional violation of his right to free exercise of religion, the plaintiff bears the burden of demonstrating that the restriction substantially burdened his sincerely-held religious beliefs. Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir. 2007).

This claim lacks evidentiary support. While Defendant Trujillo had two offenders searched and drug screened because he detected an odor of marijuana immediately following a Wicca service, Mr. Hamlin was not at the service and was not searched or tested. ( See Affidavit of Albert Trujillo, Exhibit B to Defendants' Motion (doc. # 115-2 at ¶¶ 6-7). No searches or drug tests of Wicca Faith Group members have since occurred. ( See id.). Thus, Mr. Hamlin fails to establish a substantial burden on his religious practices.

Further, verbal harassment or threats, without some reinforcing act accompanying them, fail to state a constitutional claim. Maclean v. Secor, 876 F. Supp. 695, 699 (E.D. Pa. 1995) (citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) ("Verbal harassment or abuse of the sort alleged in this case [sheriff threatened to hang prisoner] is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.")). Finally, Mr. Hamlin's allegations are conclusory. In order to state a valid claim of retaliation, a plaintiff must "allege specific facts showing retaliation [on account] of the exercise of the prisoner's constitutional rights," Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir. 1990), and "prove that 'but for' the retaliatory motive, the incidents to which [the inmate] refers, . . . would not have taken place." Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990). Mr. Hamlin has not alleged or produced evidence that but for retaliatory motivation the complained-of conduct would not have occurred. Nor has Mr. Hamlin alleged or demonstrated a chronology of events from which retaliation may plausibly be inferred. The court concludes that Mr. Hamlin does not state or establish a violation of either the First Amendment or RLUIPA in Claim Three.

C. Claim Four

Mr. Hamlin alleges that Defendants Trujillo and Robinette denied his constitutional right to practice his religion by denying ritual tools and supplies. ( See AC (doc. # 11) at ¶¶ 88-102).

Mr. Hamlin alleges that he was not provided with a wand. ( See doc. # 11 at ¶ 93 ("Mr. Hamlin's ability to perfect his Wicca practice is obstructed by CDOC not permitting him access to obtain a wand for his use."); see also ¶¶ 11 ("[t]he wand Mr. Hamlin is required to purchase from CDOC . . . is not acceptable . . . CDOC does not give Mr. Hamlin the ability to purchase wands made of rowan, ash, willow, oak, maple, etc.")). Prison regulations permit Mr. Hamlin to possess a wand. ( See doc. # 115-1 at pp. 30, 34, 55, 59, 81, 89 of 114). However, prisons do not have an affirmative duty to provide religious materials or other religious articles free of charge to inmates. See Cutter v. Wilkinson, 544 U.S. 709, 720 n. 8 (2005) ("RLUIPA does not require a State to pay for an inmate's devotional accessories."). RLUIPA does not require governments to affirmatively subsidize religion. Abdulhaseeb, 600 F.3d at 1321 (citing Mayweathers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir. 2002) (holding RLUIPA constitutional under the Establishment Clause because "[i]t does not impose affirmative duties on states that would require them to facilitate or subsidize the exercise of religion")). While Mr. Hamlin's preference is for a different type of wand, he does not present evidence suggesting that his religious practice is substantially burdened by type of the wand that is available for purchase in the prison canteen. Mr. Hamlin has not shown that being denied the type of wand of his choosing caused him to be subjected to a deprivation that significantly hampered his religious practice. See Smith v. Allen, 502 F.3d 1255, 1277 (11th Cir. 2007) ("to constitute a substantial burden under RLUIPA, the governmental action must significantly hamper one's religious practice"). As to his allegations that he was denied a proper wand, Mr. Hamlin has failed to demonstrate a violation of the First Amendment or RLUIPA because he has not shown that the practice of his religious beliefs was substantially burdened.

Mr. Hamlin also alleges that he was not permitted to chalk his circle on an indoor carpet floor, but was instead told to chalk a circle on a large piece of cardboard. ( See doc. # 11 at ¶¶ 89-91). FLCF provides space and time for services for all religious preferences and the facility needs to keep the rooms neutral for all uses. ( See doc. # 115-2 at ¶ 13). Inmates who were participating in the Wicca celebration were not allowed to use chalk to mark the carpet because chalk was difficult to remove from the carpet, and other religious services were planned to be held in the same room. ( See id. at ¶ 10). The Wicca group was provided with a large piece of cardboard so that they could draw a chalk circle on the cardboard rather than drawing it on the carpet. ( See id. at ¶ 11).

Mr. Hamlin must show that Defendants' conduct imposed a substantial burden on his religious practice. Abdulhaseeb, 600 F.3d at 1312-15 (applying RLUIPA); Gallagher v. Shelton, 587 F.3d at 1069-70 (applying Free Exercise Clause). "[A]t a minimum the substantial burden test requires . . . more than an inconvenience to one's religious practice." Abdulhaseeb, 600 F.3d at 1316. See also Smith v. Allen, 502 F.3d 1255, 1277 (11th Cir. 2007) ("We have previously defined a substantial burden as being significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly . . . [I]n order to constitute a substantial burden on religious practice, the government's action must be more than . . . incidental and must place more than an inconvenience on religious exercise.") (internal quotation marks and citation omitted).

Mr. Hamlin has not presented evidence that casting a circle with chalk is significant enough to Wiccan practitioners that any limitation necessarily imposed a substantial burden on his religious exercise. See Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (a substantial burden is one that bears a direct, primary and fundamental responsibility for rendering religious exercise effectively impracticable). The evidence shows no more than an inconvenience. All that is required is a reasonable opportunity to practice one's religion and the evidence does not support a claim that Defendants denied Mr. Hamlin such an opportunity. The evidence does not establish that the limitation that the Wiccans cast their circle with chalk on a large piece of cardboard rather than the carpet substantially burdened Mr. Hamlin's exercise of his religion.

Mr. Hamlin further alleges that Wiccans were denied charcoal for two services, on "June 10" and "June 20th." ( See doc. # 11 at ¶ 97). In 2007, a change in policy occurred regarding inmates' possession of charcoal. The Swift-Lite Charcoal Tablets ordered from the religious catalog had been on the canteen list and inmates could take them to their cells. ( See doc. # 115-1 at p. 4 of 114, ¶ 12). In June 2007, Swift-Lite Charcoal Tablets ordered from the religious catalog were determined to be contraband and were not to be allowed in the possession of inmates due to the incendiary capabilities. ( See id. at pp. 4, 109-112 of 114). The charcoal tablets were in the individual inmates' possession for use in the June 10, 2007 service. ( See id. at p. 4 of 114, ¶ 13). On June 11, 2007, the Warden requested that Defendant Robinette investigate which inmates had charcoal tablets in their possession. ( See id. at p. 4 of 114, ¶ 11). Mr. Hamlin was not one of the two inmates who had charcoal tablets. ( See id. at p. 4 of 114, ¶ 11). The charcoal tablets were confiscated from the two inmates on June 11, 2007. ( See id. at p. 4 of 114, ¶ 13). The inmates donated the tablets to the Wicca Faith Group for use at scheduled services. ( See id. at pp. 4, 112 of 114). The charcoal tablets are an allowable faith group item and are required to be stored with other faith group property. ( See id. at p. 4 of 114, ¶ 12). A locked storage area was established to store Wicca Faith Group property. ( See id. at p. 4, ¶ 14; pp. 111-12 of 114).

The evidence indicates that the charcoal tablets were in the possession of individual Wiccan Faith Group members for use in the June 10, 2007 service. ( See doc. # 115-1 at p. 4 of 114, ¶ 13). Mr. Hamlin's allegation that the Wiccan Faith Group was denied the charcoal for the June 20th service fails to state a claim. This single isolated incident is not sufficient to implicate the Constitution or substantially burden Mr. Hamlin's exercise of his religion. See White v. Glantz, 986 F.2d 1431 (10th Cir. 1993) (finding that an isolated occurrence did not violate a Muslim inmate's First Amendment rights). See also Hankins v. NYS Dept. of Correctional Services, 2008 WL 2019655 * 6 (N.D.N.Y. 2008) ("Courts have found that causing a prisoner to miss one religious service does not constitute a violation of RLUIPA.").² Mr. Hamlin does not argue or demonstrate that the deprivation of charcoal on one occasion on June 20, 2007 prevented him from exercising his religious beliefs.³

2 Copies of unpublished decisions cited are attached to this Recommendation.

3 Mr. Hamlin has not presented any allegations or evidence of the significance of candles and quarters, such that any limitation on those items imposed a substantial burden on his religious exercise.

In sum, Mr. Hamlin has not established a violation of either the First Amendment or RLUIPA in Claim Four.

D. Claim Five

Mr. Hamlin alleges that due to prohibitions on burning "herbs/oils to cleanse the service/worship area," the Wicca Faith Group did not have access to the indoor worship area during certain periods of inclement weather. ( See AC (doc. # 11) at ¶¶ 26, 103-110). Mr. Hamlin alleges that inclement weather "coupled with Mr. Hamlin[']s inability to tolerate cold, caused Mr. Hamlin to miss the Full Moon Esbats for November 2006, December 2006, January 2006, February 2006, and March 2006, the Yule Sabat in December, the Imbolc Sabat in February, and the Wicca monthly study service from November 2006 to March 2007." ( See AC (doc. # 11) at ¶ 109). Mr. Hamlin alleges that "[n]ot having access to an environmentally safe indoor Wiccan Service area, has denied Mr. Hamlin the ability to practice his religion." ( See AC (doc. # 11) at ¶ 110).

Again, Mr. Hamlin must show that Defendants' conduct imposed a substantial burden on his religious practice. Abdulhaseeb, 600 F.3d at 1312-15; Gallagher v. Shelton, 587 F.3d at 1069-70. FLCF provides a room designated for religious services to be used by all faith groups. ( See doc. # 115-2 at p. 3 of 9, ¶ 13). FLCF does not have sufficient rooms and space to have separate facilities for each religion. ( See id.). AR 800-01 provides that the Wiccan Faith Group prefers to gather outdoors for Holy Day observances, but that indoor observances are also appropriate. ( See doc. # 115-1 at pp. 3, 30, 55, 81, of 114; see also p. 5 of 114, ¶ 18). When Holy Day observances take place in cold weather, the Shift Commander had the authority to move the group inside. ( See doc. # 115-1 at p. 3 of 114, ¶ 19). "When the group is moved inside for the Holy Day observance, there would be no burning of herbs allowed because of the prohibition on burning in state buildings." ( See doc. # 115-1 at p. 5 of 114, ¶ 19).

Mr. Hamlin has not refuted the evidence that Wiccan Faith Group observances were permitted to take place indoors in inclement weather, albeit without burning any herbs or oils. To the extent that Mr. Hamlin alleges that he missed several Wiccan observances in 2006 and 2007, he alleges nothing more than occasional and insubstantial inconveniences to his practice of his religion due to the weather, the ban on burning indoors, and his "inability to tolerate cold." There were numerous other Wiccan observances available to him in 2006 and 2007. ( See doc. # 115-1 at pp. 31-33, 56-58, 82-87 of 114). "In addition to the services provided for in AR 800-01, FLCF also provides two hours per month for Wiccan participants to gather." ( See doc. # 115-1 at p. 3 of 114, ¶ 10). Mr. Hamlin's allegations do not support and he has not presented any evidence to establish a substantial burden on his religious practice. See, e.g., Smith v. Graziano, 2010 WL 1330019 at * 9 (N.D.N.Y. 2010) ("[T]he cancellation of two religious services is a de minimis, or insubstantial, burden on an inmate's ability to freely exercise his religion.") (citations omitted). Mr. Hamlin has not alleged or demonstrated that the Wiccan observances did not take place, only that burning was not permitted at indoor observances and that he did not attend some outdoor observances due to cold weather. The court concludes that Mr. Hamlin has not established a violation of either the First Amendment or RLUIPA in Claim Five.

E. Claim for Injunctive Relief

Defendants argue that Mr. Hamlin's claim for injunctive relief is moot because he was transferred from FLCF to BCCF and is no longer under the custody or control of any of the Defendants.

Article III delimits the jurisdiction of federal courts, allowing us to consider only actual cases or controversies. [A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. In deciding whether a case is moot, the crucial question is whether granting a present determination of the issues offered will have some effect in the real world. When it becomes impossible for a court to grant effective relief, a live controversy ceases to exist, and the case becomes moot.

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (internal quotation marks and citations omitted). Because Mr. Hamlin has been transferred away from FLCF, "it appears that . . . injunctive relief will not be available" against the FLCF Defendants. Abdulhaseeb, 600 F.3d at 1311 (citations omitted). Mr. Hamlin's claim for injunctive relief is moot.

F. Qualified Immunity

Defendants assert the defense of qualified immunity. In an action brought under § 1983, the doctrine of qualified immunity protects government officials who perform discretionary government functions from liability for civil damages and the obligation to defend the action. See Johnson v. Fankell, 520 U.S. 911, 914 (1997) ("officials performing discretionary function[s], generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known") (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "When the defense of qualified immunity is raised in a summary judgment motion, the Plaintiff bears the burden to show both that each Defendant's action violated a constitutional right, and that that right was clearly established at the time of the conduct." Murphy v. Gardner, 413 F. Supp. 2d 1156, 1162 (D. Colo. 2006). Although a plaintiff must ultimately establish both elements to avoid application of the doctrine, the court has discretion to consider the elements in any order. See Pearson v. Callahan, 129 S.Ct. 808, 818 (2009); Green v. Post, 574 F.3d 1294, 1299 (10th Cir. 2009).

As to Mr. Hamlin's constitutional claims, because the court has concluded in this Recommendation that the evidence, even viewed in the light most favorable to Mr. Hamlin, is insufficient to establish that Defendants violated his constitutional rights, Defendants in their individual capacities are entitled to qualified immunity from Mr. Hamlin's claims brought pursuant to § 1983. See Wilder, 490 F.3d at 815 (instructing district court on remand to enter judgment in favor of defendant on basis of qualified immunity, where plaintiff failed to carry his burden to show violation of a constitutional right).

Because the court previously concluded that RLUIPA does not permit a claim against Defendants in their individual capacities ( see doc. # 54), the court need not address the secondary question of whether they would be entitled to a defense of qualified immunity as to the RLUIPA claim. See Sossamon, 560 F.3d at 327 ("if no private right of action exists against the defendants in their individual capacities, then a qualified immunity . . . analysis would be unnecessary."); Smith v. Allen, 502 F.3d at 1275 (stating that the qualified immunity defense only applies when the defendant is sued individually)).

Accordingly, IT IS ORDERED that "Defendants' Renewed Motion for Summary Judgment" (filed April 30, 2010 (doc. # 115) is GRANTED. Judgment shall enter on all remaining claims in the Amended Complaint (doc. # 11) in favor of Defendants and against Plaintiff.

Westlaw.

Not Reported in F.Supp.2d, 2008 WL 2019655 (N.D.N.Y.)

(Cite as: 2008 WL 2019655 (N.D.N.Y.))

Only the Westlaw citation is currently available.

United States District Court, N.D. New York. Jamile HANKINS, Plaintiff, v. NYS DEPARTMENT OF CORRECTIONAL SERVICES; Brian Fischer, Commissioner, NYS Docs; Lucien LeClaire, Former Commissioner, NYS Docs; John Doe # 1, "Mess Hall" Corrections Officer at Shawangunk Correctional Facility; and John Doe # 2, Corrections Sergeant/Hearing Officer at Shawangunk Correctional Facility, Defendants. No. 9:07-CV-0408 (FJS/GHL). March 10, 2008.

Jamile Hankins, Napanoch, NY, pro se.

Hon. Andrew M. Cuomo, Attorney General for the State of New York, Adele M. Taylor-Scott, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT-RECOMMENDATION

GEORGE H. LOWE, United States Magistrate Judge.

*1 This pro se prisoner civil rights action has been referred to me for Report and Recommendation by the Honorable Frederick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court. Generally, Jamile Hankins ("Plaintiff") brings this action under two statutes: (1) 42 U.S.C. § 1983 (for a violation of his rights under the First, Eighth and Fourteenth Amendments); and (2) the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1 et seq. ^FN1 More specifically, Plaintiff's Complaint alleges that, while he was incarcerated at Shawangunk Correctional Facility ("Shawangunk C.F.") in 2004, the New York State Department of Correctional Services ("DOCS") and four of its employees ("Defendants") violated his rights in one or both of two ways: (1) by carelessly refusing to allow him to take a "purification" shower and then participate in a weekly religious service in accordance with the practice of his Islamic religion, on the afternoon of March 19, 2004; and (2) by wrongfully failing, during the days and weeks that followed, to grant all of the relief that Plaintiff requested in a grievance that he filed regarding the incident. ( See Dkt. No. 1 [Plf.'s Compl.].) Currently pending before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 11.) For the reasons that follow, I recommend that Defendants' motion be granted and that Plaintiff's Complaint be dismissed with prejudice.

FN1. Plaintiff mistakenly alleges that he is bringing his claims under "the Religious Freedom Restoration Act of 42 U.S.C. § 2000cc-1." (Dkt. No. 1, at 1 [Plf.'s Compl.].) The Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., was declared unconstitutional by the United States Supreme Court in 1997. City of Boerne v. Flores, 521 U.S. 507, 532-536 (1997). Because the Religious Freedom Restoration Act was amended by the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc1 et seq., a plaintiff's RLUIPA claim may be construed "as an extension of its [inartfully pleaded] RFRA claim." Prater v. City of Burnside, 289 F.3d 417, 433 (6th Cir. 2002). In short, construed with the extra liberal leniency afforded to pro se civil rights litigants, Plaintiff's claims arise, in part, not under the RFRA but under the RLUIPA, 42 U.S.C. § 2000cc-1 et seq. See Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005) (when district court is determining what legal claims a pro se civil litigant has raised, "the court's imagination should be limited only by [the plaintiff's] factual allegations, not by the legal claims set out in his pleadings") [citations omitted].

I. BACKGROUND A. Plaintiff's Complaint

Liberally construed, Plaintiff's Complaint alleges as follows.

On March 19, 2004, he was working in the Mess Hall at Shawangunk C.F.^FN2 At approximately 12:30 p.m. that day, he approached Defendant John Doe # 1, the correctional officer who was supervising the Mess Hall, and requested that he be allowed to return to his housing unit in "Block D1" in order to take an obligatory religious "purification" shower in preparation for the weekly "Muslim Jumu'ah religious service[]," scheduled for 1:00 p.m. at Shawangunk C.F.^FN3 However, Defendant John Doe # 1 refused to allow Plaintiff to return to Block D1, stating "that 'nobody is leaving the messhall [sic] due to a contraband search being conducted in housing Block D2.'"^FN4 As a result, Plaintiff was unable to leave the Mess Hall until approximately 2:15 p.m., thereby missing his religious service.^FN5

FN2. (Dkt. No. 1, ¶ 8 [Plf.'s Compl.].)

FN3. ( Id. at ¶¶ 9-10.)

FN4. ( Id. at ¶ 11.)

FN5. ( Id. at ¶ 12.)

On March 22, 2004, Plaintiff filed an Inmate Grievance Complaint regarding the incident; the grievance was assigned number "SHG 20686."^FN6 Under the section of the grievance labeled "Action requested by Inmate," Plaintiff responded, "That this will not happen again, because I was prevented from performing my religious duty's [sic], and a significant good religious day [sic]."^FN7

FN6. ( Id. ¶ 13.)

FN7. ( Id. at Ex. A.)

*2 On April 5, 2004, the Shawangunk C.F. Inmate Grievance Resolution Committee ("IGRC") issued a written ruling regarding Plaintiff's grievance.^FN8 Under the section of the decision labeled "Response of IGRC," the IGRC stated as follows: "D2 housing unit was being searched at the time and not D1 unit. Furthermore, inmates housed in D1 during the search and scheduled for religious services were allowed to attend services on time without compromising the security of the search. Grievant could've been offered the same opportunity."^FN9 At the grievance hearing that accompanied the issuance of the IGRC's written ruling, John Doe # 2, the Hearing Officer assigned to conduct Plaintiff's grievance hearing, "gave no [other] reason for [the ruling]."^FN10 On the bottom of the written ruling issued by the IGRC, there were four boxes, which preceded the following four statements: (1) "I disagree with the IGRC response," (2) "I agree with the IGRC response," (3) "I have reviewed deadlocked responses," and (4) "I wish to appeal to the Superintendent."^FN11 Construing the IGRC's ruling as a "denial" of his grievance, Plaintiff checked the second and fourth boxes on April 5, 2004.^FN12

FN8. ( Id. at ¶ 14 Ex. B.)

FN9. ( Id. at Ex. B.)

FN10. ( Id. at ¶ 14.)

FN11. ( Id. at Ex. B.)

FN12. ( Id. ¶ 15 Ex. B)

At some point between April 5, 2004, and April 13, 2004, Shawangunk C.F. Superintendent Joseph T. Smith caused an investigation to be conducted regarding the subject of Plaintiff's appeal.^FN13 On April 13, 2004, Superintendent Smith issued his ruling regarding Plaintiff's appeal.^FN14 In that ruling, Superintendent Smith stated as follows:

FN13. ( Id. at ¶ 16.)

FN14. ( Id. at ¶ 16 Ex. C.)

Grievant claims that he was denied attendance at religious services. He wants to avoid a reoccurrence.

Investigation reveals that grievant is correct. While an area search was being conducted on D/2 (a messhall unit) which contributed to confusion by staff, grievant nonetheless should have been permitted to attend services.

Grievance accepted only to the extent as stated above.^FN15

FN15. ( Id.)

Plaintiff signed his Complaint in this action on April 10, 2007.^FN16

FN16. ( Id. at 4.)

B. Defendants' Motion to Dismiss

Defendants have moved to dismiss Plaintiff's Complaint on four grounds: (1) most, if not all, of Plaintiff's claims concerning the events of March 19, 2004, to April 13, 2004, are barred by the threeyear statute of limitations governing those claims, under 42 U.S.C. § 1983; (2) Plaintiff's claims against DOCS are barred because (a) DOCS, an entity, is not a "person" within the meaning of 42 U.S.C. § 1983, and (b) in any event, the Eleventh Amendment to the United States Constitution bars Plaintiff's claim against DOCS, which is an agency of New York State; (3) Plaintiff has failed to allege facts plausibly suggesting that Defendants Fischer and LeClaire, both of whom were high-ranking DOCS officials during the time in question, were personally involved in any constitutional violations alleged; and (4) Plaintiff has failed to state a claim under RLUIPA.^FN17

FN17. ( See generally Dkt. No. 11, Part 2 [Defs.' Mem. of Law].)

In response to Defendants' first argument, Plaintiff argues that the limitations period that governs his claims is not three years (under 42 U.S.C. § 1983) but four years (under 28 U.S.C. § 1658[a]).^FN18 In response to Defendants' second argument, Plaintiff argues that the broad definition of "government," set forth in 42 U.S.C. § 2000cc-5(4), allows him to assert claims against DOCS in this action.^FN19 While Plaintiff does not specifically respond to Defendants' third argument, he states generally that "[a]ny other argument by defendants is misplaced, mistaken, or arbitrary."^FN20 In response to Defendants' fourth argument, Plaintiff argues that Defendants placed a substantial burden on his right to religious exercise, thus enabling him to state a claim under RLUIPA.^FN21

FN18. (Dkt. No. 13, Plf.'s Memo. of Law, at 3.)

FN19. ( Id. at 2.)

FN20. ( Id. at 2.)

FN21. ( Id. at 1-4.)

II. RELEVANT LEGAL STANDARD

*3 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). It has long been understood that a defendant may base such a motion on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Rule 8(a)(2);^FN22 or (2) a challenge to the legal cognizability of the claim.^FN23

FN22. See 5C Wright Miller, Federal Practice and Procedure § 1363 at 112 (3d ed. 2004) ("A motion to dismiss for failure to state a claim for relief under Rule 12(b)(6) goes to the sufficiency of the pleading under Rule 8(a)(2).") (citations omitted); Princeton Indus., Inc. v. Rem, 39 B.R. 140, 143 (Bankr.S.D.N.Y. 1984) ("The motion under F.R.Civ.P. 12(b)(6) tests the formal legal sufficiency of the complaint as to whether the plaintiff has conformed to F.R.Civ.P. 8(a)(2) which calls for a 'short and plain statement' that the pleader is entitled to relief."); Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972) ("This motion under Fed.R.Civ.P. 12(b)(6) tests the formal legal sufficiency of the complaint, determining whether the complaint has conformed to Fed.R.Civ.P. 8(a)(2) which calls for a 'short and plain statement that the pleader is entitled to relief.'").

FN23. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("These allegations give respondent fair notice of what petitioner's claims are and the grounds upon which they rest. . . . In addition, they state claims upon which relief could be granted under Title VII and the ADEA."); Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) ("There is a critical distinction between the notice requirements of Rule 8(a) and the requirement, under Rule 12(b)(6), that a plaintiff state a claim upon which relief can be granted."); Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002) ("Of course, none of this is to say that a court should hesitate to dismiss a complaint when the plaintiff's allegation . . . fails as a matter of law.") (citation omitted); Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (distinguishing between a failure to meet Rule 12[b][6]'s requirement of stating a cognizable claim and Rule 8[a]'s requirement of disclosing sufficient information to put defendant on fair notice); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 379 F.Supp.2d 348, 370 (S.D.N.Y. 2005) ("Although Rule 8 does not require plaintiffs to plead a theory of causation, it does not protect a legally insufficient claim [under Rule 12(b)(6)].") (citation omitted); Util. Metal Research Generac Power Sys., 02-CV-6205, 2004 U.S. Dist. LEXIS 23314, at *4-5 (E.D.N.Y. Nov. 18, 2004) (distinguishing between the legal sufficiency of the cause of action under Rule 12[b][6] and the sufficiency of the complaint under Rule 8[a]); accord, Straker v. Metro Trans. Auth., 331 F.Supp.2d 91, 101-102 (E.D.N.Y. 2004); Tangorre v. Mako's, Inc., 01-CV-4430, 2002 U.S. Dist. LEXIS 1658, at *6-7 (S.D.N.Y. Jan. 30, 2002) (identifying two sorts of arguments made on a Rule 12[b][6] motion-one aimed at the sufficiency of the pleadings under Rule 8[a], and the other aimed at the legal sufficiency of the claims).

Rule 8(a)(2) requires that a pleading include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Such a statement must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."^FN24 The The purpose of this rule is to "facilitate a proper decision on the merits."^FN25 A complaint that fails to comply with this rule "presents far too a heavy burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiff's] claims."^FN26

FN24. Dura Pharmaceuticals, Inc. v. Broudo, 125 S.Ct. 1627, 1634 (2005) (holding that the complaint failed to meet this test) (quoting Conley, 355 U.S. at 47); see also Swierkiewicz, 534 U.S. at 512 (quoting Conley, 355 U.S. at 47); Leathernman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) (quoting Conley, 355 U.S. at 47).

FN25. See Swierkiewicz, 534 U.S. at 514 (quoting Conley, 355 U.S. at 48).

FN26. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996) (McAvoy, J.), aff'd, 113 F.3d 1229 (2d Cir. 1997) (unpublished table opinion). Consistent with the Second Circuit's application of § 0.23 of the Rules of the U.S. Court of Appeals for the Second Circuit, I cite this unpublished table opinion, not as precedential authority, but merely to show the case's subsequent history. See, e.g., Photopaint Technol., LLC v. Smartlens Corp., 335 F.3d 152, 156 (2d Cir. 2003) (citing, for similar purpose, unpublished table opinion of Gronager v. Gilmore Sec. Co., 104 F.3d 355 [2d Cir. 1996]).

The Supreme Court has long characterized this pleading requirement under Rule 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement.^FN27 However, it is well established that even this liberal notice pleading standard "has its limits."^FN28 As a result, several Supreme Court decisions, and Second Circuit decisions, exist holding that a pleading has failed to meet this liberal notice pleading standard.^FN29

FN27. See, e.g., Swierkiewicz, 534 U.S. at 513-514 (noting that "Rule 8(a)(2)'s simplified pleading standard applies to all civil actions, with limited exceptions [including] averments of fraud or mistake.").

FN28. 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003).

FN29. See, e.g., Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-1974 (2007) (pleading did not meet Rule 8[a][2] 's liberal requirement), accord, Dura Pharmaceuticals, 125 S.Ct. at 1634-1635, Christopher v. Harbury, 536 U.S. 403, 416-422 (2002), Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234-235 (2d Cir. 2004), Gmurzynska v. Hutton, 355 F.3d 206, 208-209 (2d Cir. 2004). Several unpublished decisions exist from the Second Circuit affirming the Rule 8(a)(2) dismissal of a complaint after Swierkiewicz. See, e.g., Salvador v. Adirondack Park Agency of the State of N.Y., No. 01-7539, 2002 WL 741835, at *5 (2d Cir. Apr. 26, 2002) (affirming pre- Swierkiewicz decision from Northern District of New York interpreting Rule 8[a][2]). Although these decisions are not themselves precedential authority, see Rules of the U.S. Court of Appeals for the Second Circuit, § 0.23, they appear to acknowledge the continued precedential effect, after Swierkiewicz, of certain cases from within the Second Circuit interpreting Rule 8(a)(2). See Khan v. Ashcroft, 352 F.3d 521, 525 (2d Cir. 2003) (relying on summary affirmances because "they clearly acknowledge the continued precedential effect" of Domond v. INS, 244 F.3d 81 [2d Cir. 2001], after that case was "implicitly overruled by the Supreme Court" in INS v. St. Cyr, 533 U.S. 289 [2001]).

Most notably, in the recent decision of Bell Atlantic Corporation v. Twombly, the Supreme Court, in reversing an appellate decision holding that a complaint had stated a claim upon which relief could be granted, "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 127 S.Ct. 1955, 1968-69 (2007).^FN30 Rather than turning on the conceivability of an actionable claim, the Court clarified, the Rule 8 standard turns on the "plausibility" of an actionable claim. Id. at 1965-74. More specifically, the Court held that, for a plaintiff's complaint to state a claim, his "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]" assuming, of course, that all the allegations in the complaint are true. Id. at 1965 [citations omitted]. What this means, on a practical level, is that there must be "plausible grounds to infer [actionable conduct]," or, in other words, "enough fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct]." Id. ^FN31

FN30. The Court in Twombly further explained: "The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been adequately stated, it may be supported by showing any set of facts consistent with the allegations in the complaint. . . . Conley, then, described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival." Twombly, 127 S.Ct. at 1969.

FN31. Accord, Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) ("[W]e believe the [Supreme] Court [in Bell Atlantic Corp. v. Twombly] is . . . requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.") [emphasis in original].

Having said that, it should be emphasized that, "[i]n reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor."^FN32 "This standard is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." ^FN33 In other words, while all pleadings are to be construed liberally, pro se civil rights pleadings are to be construed with an extra degree of liberality. For example, the mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual assertions are consistent with the allegations of the plaintiff's complaint.^FN34 Moreover, "courts must construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest."^FN35 Furthermore, when addressing a pro se complaint, generally a district court "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."^FN36

FN32. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (affirming grant of motion to dismiss) (citation omitted); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).

FN33. Hernandez, 18 F.3d at 136 (citation omitted); see also Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (citations omitted); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999) (citation omitted).

FN34. "Generally, a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum." Gadson v. Goord, 96-CV-7544, 1997 WL 714878, at *1, n. 2 (S.D.N.Y. Nov. 17, 1997) (citing, inter alia, Gil v. Mooney, 824 F.2d 192, 195 [2d Cir. 1987] [considering plaintiff's response affidavit on motion to dismiss]). Stated another way, "in 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.'" Donhauser v. Goord, 314 F.Supp.2d 119, 212 (N.D.N.Y. 2004) (considering factual allegations contained in plaintiff's opposition papers) (citations omitted), vacated in part on other grounds, 317 F.Supp.2d 160 (N.D.N.Y. 2004). This authority is premised, not only on case law, but on Rule 15 of the Federal Rules of Civil Procedure, which permits a plaintiff, as a matter of right, to amend his complaint once at any time before the service of a responsive pleading-which a motion to dismiss is not. See Washington v. James, 782 F.2d 1134, 1138-39 (2d Cir. 1986) (considering subsequent affidavit as amending pro se complaint, on motion to dismiss) (citations omitted).

FN35. Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (finding that plaintiff's conclusory allegations of a due process violation were insufficient) (internal quotation and citation omitted).

FN36. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation and citation omitted); see also Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires").

*4 However, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended."^FN37 For example, an opportunity to amend should be denied where "the problem with [plaintiff's] causes of action is substantive" such that "[b]etter pleading will not cure it."^FN38

FN37. Stinson v. Sheriff's Dep't of Sullivan Cty., 499 F.Supp. 259, 262 n. 9 (S.D.N.Y. 1980); accord, Standley v. Dennison, 05-CV-1033, 2007 WL 2406909, at *6, n. 27 (N.D.N.Y. Aug. 21, 2007) (Sharpe, J., adopting report-recommendation of Lowe, M.J.); Muniz v. Goord, 04-CV-0479, 2007 WL 2027912, at *2 (N.D.Y.Y. July 11, 2007) (McAvoy, J., adopting report-recommendation of Lowe, M.J.); DiProjetto v. Morris Protective Serv., 489 F.Supp.2d 305, 307 (W.D.N.Y. 2007); Cosby v. City of White Plains, 04-CV-5829, 2007 WL 853203, at *3 (S.D.N.Y. Feb. 9, 2007); Lopez v. Wright, 05-CV-1568, 2007 WL 388919, at *3, n. 11 (N.D.N.Y. Jan. 31, 2007) (Mordue, C.J., adopting reportrecommendation of Lowe, M.J.); Richards v. Goord, 04-CV-1433, 2007 WL 201109, at *5 (N.D.N.Y. Jan. 23, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.); Ariola v. Onondaga County Sheriff's Dept., 04-CV1262, 2007 WL 119453, at *2, n. 13 (N.D.N.Y. Jan. 10, 2007) (Hurd, J., adopting report-recommendation of Lowe, M.J.); Collins v. Fed. Bur. of Prisons, 05-CV-0904, 2007 WL 37404, at *4 (N.D.N.Y. Jan. 4, 2007) (Kahn, J., adopting report-recommendation of Lowe, M.J.).

FN38. Cuoco, 222 F.3d at 112 (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).

III. ANALYSIS

A. Whether Plaintiff Has Alleged Facts Plausibly Suggesting that Defendants Fischer and Le-Claire Were Personally Involved in any Constitutional Violations Alleged

sua sponte sua sponte ^FN39

FN39. See 28 U.S.C. § 1915(e)(2)(B)(ii) ("[T]he court shall dismiss [a] case [brought by a prisoner proceeding in forma pauperis] at any time if the court determines that . . . the action . . . is frivolous or malicious[,] . . . fails to state a claim on which relief may be granted [,] . . . or . . . seeks monetary relief against a defendant who is immune from such relief"); 28 U.S.C. § 1915A(b) ("On review, the court shall . . . dismiss the [prisoner's] complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted. . . .").

Gill v. Mooney,824 F.2d 192196Colon v. Coughlin,58 F.3d 865873Wright v. Smith. 21 F.3d 496 501 Williams v. Smith, 781 F.2d 319323-324

Here, Plaintiff states in his Complaint that Defendant Fischer is the current Commissioner of DOCS and that Defendant LeClaire was the Commissioner of DOCS at the time of the alleged violation of his constitutional rights. However, Plaintiff fails to allege any facts plausibly suggesting that Defendants Fischer or LeClaire directly participated in any constitutional violation. Nor does Plaintiff point to any policy, custom, poor management techniques, or failure to remedy that violated his constitutional right to practice his religion. For example, conspicuously missing from Plaintiff's Complaint is any factual allegation that Defendant Fischer or Le-Claire knew about similar violations at Shawangunk C.F. (or anywhere) before March 19, 2004, or that they even learned of the alleged violation in question by report or appeal after March 19, 2004. Furthermore, Plaintiff has alleged facts plausibly that the DOCS' grievance procedures in place at the time resulted in a ruling that was partly, if not entirely, in Plaintiff's favor, plausibly suggesting that Defendants Fischer or LeClaire-to the extent they were responsible for supervising DOCS' grievance process-were performing their duties adequately.

*5 For these reasons, I recommend that Plaintiff's constitutional claims (i.e., his Section 1983 claims) against Defendants Fischer and LeClaire be dismissed because of Plaintiff's failure to allege facts plausibly suggesting those two Defendants' personal involvement in the constitutional violations alleged.

Furthermore, I find that Plaintiff has not alleged any facts plausibly suggesting that there were constitutional violations in which any Defendant could have been personally involved. As an initial matter, Plaintiff's claim under the Eighth Amendment is a mere superfluity. Based on even the most liberal constructions of his factual allegations, his sole constitutional claims consist of a First Amendment free-exercise claim and perhaps a Fourteenth Amendment procedural due process claim.

One reason that his First and Fourteenth Amendment claims fail is because he has not alleged facts plausibly suggesting anything other than negligence by Defendants. For example, he alleges that Defendant John Doe # 1 denied Plaintiff access to a shower and religious service on March 19, 2004, due to his erroneous belief that a contraband search in Housing Block D2 prevented anyone from leaving the Mess Hall. ( See, supra, Part I.A. of this Report-Recommendation.) Moreover, he alleges that Defendant John Doe # 2 neglected to orally explain (to Plaintiff's satisfaction) the written decision of the IGRC with regard to Plaintiff's grievance. ( Id.) Negligence is not actionable under either the First or Fourteenth Amendment.^FN40

FN40. See, e.g., Daniels v. Williams, 474 U.S. 327, 331-33 (1986) (stating that "injuries inflicted by governmental negligence are not addressed by the United States Constitution" and rejecting § 1983 claim based on alleged due process violation under Fourteenth Amendment); Hudson v. Palmer, 486 U.S. 517, 531 (1984) ("[T]he Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property. . . ."); Riddick v. Modeny, No. 07-1645, 2007 WL 2980186, at *2 (3d Cir. Oct. 9, 2007) ("The protections afforded prisoners by the Due Process Clause of the Fourteenth Amendment are not triggered by the mere negligence of prison officials."); Jones v. Salt Lake County, 503 F.3d 1147, 1162-63 (10th cir. 2007) ("[N]egligence does not state a § 1983 [ First Amendment] claim."); Taylor v. Dretke, No. 05-41738, 239 Fed. App'x 882, 883-84 (5th Cir. June 28, 2007) (dismissing prisoner's access-to-courts claim because negligence is not actionable under First Amendment); Willis v. Washington, No. 96-2385, 1999 U.S.App. LEXIS 532, at *2-3 (7th Cir. Dec. 16, 1998) (dismissing prisoner's interferencewith-mail claim because negligence is not actionable under First Amendment).

Another reason that his First Amendment claim fails is because he has alleged merely the denial of the right to participate in one weekly religious service.^FN41 Courts from the Second Circuit have repeatedly found that an allegation that prison officials caused a prisoner to miss one religious service fails to state an actionable claim under the First Amendment.^FN42 Indeed, on three occasions, district courts in this Circuit have specifically held that causing a prisoner to miss one Jumu'ah service fails to state an actionable claim under the First Amendment.^FN43

FN41. I take judicial notice of the fact that, in the Muslim faith, "Jumu'ah" is a weekly congregational service, occurring every Friday. Boomer v. Irvin, 963 F.Supp. 227, 228, n. 1 (W.D.N.Y. 1997) ("As noted in this court's previous decision and order, Jummah, or 'Jumu'ah,' is a weekly Muslim congregational service commanded by the Koran to be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer.") [internal quotation marks and citations omitted]; Persad v. Savage, 02-CV-0336, 2004 WL 1570286, at *7 (W.D.N.Y. May 25, 2004) ("Despite the cancellation of one . . . Juma service [on Friday, September 28, 2001], Plaintiffs and other Muslim inmates were free to practice their religion [for purposes of the First Amendment],"), adopted, 02-CV-0336, 2004 WL 1858140 (W.D.N.Y. Aug. 19, 2004); cf. Williams v. Weaver, 03-CV-0912, 2006 WL 2794417, at *5, nn. 27-28 (N.D.N.Y. Sept. 26, 2006) (Kahn, J., adopting Report-Recommendation by Lowe, M.J.) (taking judicial notice of "the fact that, in 2003, no Islamic holidays occurred between June 25, 2003, and July 23, 2003") [citations omitted].

FN42. See Johnson v. Newton, 02-CV-1277, 2007 WL 778421, at *5 (N.D.N.Y. March 13, 2007) (McAvoy, J., adopting Report-Recommendation by Homer, M.J.) (granting defendant's motion for summary judgment dismissing prisoner's First Amendment free-exercise claim that defendant prevented the prisoner from entering a mosque on one occasion because, even assuming the truth of that allegation, "missing one religious service does not constitute a substantial burden on an inmate's right to the free exercise of his religion") [internal quotation marks and citations omitted]; Williams v. Weaver, 03-CV-0912, 2006 WL 2794417, at *5, n. 29 (N.D.N.Y. Sept. 26, 2006) (Kahn, J., adopting Report-Recommendation by Lowe, M.J.) (granting defendant's motion for judgment on the pleadings with respect to prisoner's First Amendment free-exercise claim that defendant caused prisoner to miss two weekly religious services) [citations omitted]; Cancel v. Mazzuca, 205 F.Supp.2d 128, 142 (S.D.N.Y. 2002) (granting defendant's Rule 12[b][6] motion to dismiss prisoner's First Amendment free-exercise claim that defendant "prevented him, on one occasion, from attending a religious service"); Wagnoon v. Gatson, 00-CV-3722, 2001 U.S. Dist. LEXIS 8417, at *23-25 (S.D.N.Y. June 25, 2001) (granting defendants' Rule 12[b][6] motion to dismiss prisoner's First Amendment free-exercise claim that defendants caused prisoner to miss all or part of his midday Muslim prayers on one day) [citations omitted]; Gill v. DeFrank, 98-CV-7851, 2000 WL 897152, at *1-2 (S.D.N.Y. July 6, 2000) (granting defendants' motion for summary judgment dismissing prisoner's First Amendment freeexercise claim that defendants caused prisoner to miss one weekly religious service) [citations omitted], aff'd, 8 Fed. Appx. 35 (2d Cir. 2001) (unpublished decision).

FN43. See Persad v. Savage, 02-CV-0336, 2004 WL 1570286, at *7 (W.D.N.Y. May 25, 2004) ("Despite the cancellation of one (or even two) Juma service, Plaintiffs and other Muslim inmates were free to practice their religion [for purposes of the First Amendment]."), adopted, 02-CV-0336, 2004 WL 1858140 (W.D.N.Y. Aug. 19, 2004); Boomer v. Irvin, 963 F.Supp. 227, 230-31 (W.D.N.Y. 1997) (granting defendant's motion for summary judgment dismissing prisoner's free-exercise claim, asserted under both the First Amendment and the RFRA, that defendants prevented the prisoner from attending one Muslim Jumu'ah service due to keeplock confinement); Troy v. Kuhlmann, 96-CV-7190, 1999 WL 825622, at *4, 14-15 n. 4 (S.D.N.Y. Oct. 15, 1999) (granting defendants' motion for summary judgment dismissing prisoner's First Amendment freeexercise claim that defendants caused prisoner, of the Muslim faith, to miss one weekly religious service on Friday, May 31, 1996) [citations omitted].

Finally, for the reasons stated above, I find that the problems with Plaintiff's First and Fourteenth Amendment claims are substantive, not merely formal. Simply stated, if Plaintiff possessed facts plausibly suggesting an actionable constitutional claim against Defendants, he would have alleged those facts in his otherwise specific Complaint.

For all of these reasons, I recommend also that Plaintiff's remaining constitutional claims-i.e., his Section 1983 claims against Defendants DOCS, Fischer and LeClaire-be sua sponte dismissed with prejudice for failure to state a claim upon which relief may be granted.

B. Whether Plaintiff Has Failed to State a Claim Under RLUIPA

RLUIPA provides that "[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." 42 U.S.C. § 2000cc-1(a) [emphasis added]. With regard to the threshold issue presented to the Court in analyzing a RLUIPA claim (i.e., whether a "substantial burden" has been alleged), it should be noted that "[a] substantial burden is more than a mere inconvenience." Gill v. DeFrank, 98-CV-7851, 2000 U.S. Dist. LEXIS 9122, at *4-5 (S.D.N.Y. June 30, 2000). With regard to the second issue presented to the Court in analyzing a RLUIPA claim (i.e., whether the imposition of the burden was in furtherance of a compelling governmental interest, and whether the least restrictive means of furthering that compelling governmental interest was used), it should be noted that an act by prison officials challenged by an incarcerated person is examined under a test less restrictive than that of ordinary "reasonableness"; rather, it must merely be "reasonably related to legitimate penological interests." Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 349).

*6 Here, Plaintiff bases his RLUIPA claim on a one-time occurrence: his inability to attend the Jumu'ah service that was held on Friday, March 19, 2004, at Shawangunk C.F. ( See, supra, Part I.A. of this Report-Recommendation.) He has not alleged even conclusorily that Defendants (or anyone) repeatedly denied Plaintiff (or any Muslim incarcerated in DOCS) the right to attend Jumu'ah services. ( Id.) Furthermore, he alleges facts plausibly suggesting that Defendant John Doe # 1 caused him to miss the service due to a mistaken belief that refusing to permit Plaintiff to leave the Mess Hall for the one-and-three-quarter-hour period of time in question was necessary to maintain order and safety at Shawangunk C.F. ( Id.) Finally, Plaintiff alleges facts plausibly suggesting that Defendant John Doe # 2, or at least the IGRC (of which Defendant John Doe # 2 was a member), acknowledged the mistake and granted Plaintiff most, if not all, of the relief he requested in his grievance. ( Id.)

These allegations simply do not state a claim under RLUIPA. Courts have found that causing a prisoner to miss one religious service does not constitute a violation of RLUIPA.^FN44 This is especially true where, as here, (1) the deprivation in question was alleged to have been effected through a mistake,^FN45 (2) the mistake was made with the express intent to maintain order and safety at Shawangunk C.F.,^FN46 and (3) the mistake was followed by an acknowledgment of error and efforts to rectify the situation.^FN47 With regard to this last point, it bears repeating that Plaintiff's Complaint clearly alleges that, in the written ruling issued on April 15, 2004, deciding Plaintiff's grievance regarding the deprivation in question, the Shawangunk C.F. IGRC expressly stated that the actions of John Doe # 1 were in error. Specifically, it stated that the "D2 housing unit was being searched at the time and not D1 unit," that "inmates housed in D1 during the search and scheduled for religious services were allowed to attend services on time without compromising the security of the search," and that Plaintiff "could've been offered the same opportunity."^FN48

FN44. See Thompson v. Quartermain, 01-CV-0001, 2007 U.S. Dist. LEXIS 73207, at *6 (S.D.Tex. Sept. 30, 2007) ("An isolated denial, such as having to miss a single religious service, does not constitute a substantial burden on a prisoner's right to practice his religion [for purposes of eighth RLUIPA or the First Amendment]."); Welch v. Talmadage, 05-CV-1750, 2006 U.S. Dist. LEXIS 70387, at *22-23 (E.D.Pa. Sept. 7, 2006) (granting defendants' motion for summary judgment dismissing prisoner's RLUIPA claims because "[t]he inability to attend bible study on one occasion does not constitute a substantial burden on [a prisoner's] exercise of his religion"); cf. Boomer v. Irvin, 963 F.Supp. 227, 230-31 (W.D.N.Y. 1997) (granting defendant's motion for summary judgment dismissing prisoner's RFRA claim that defendants prevented the prisoner from attending one Muslim Jumu'ah service due to keeplock confinement) [emphasis added].

FN45. See Hysell v. Pliler, 04-CV-0355, 2008 U.S. Dist. LEXIS 2721, at *24-26 (E.D.Cal. Jan. 14, 2008) (dismissing prisoners RLUIPA claim where, inter alia, "the denial of [religious] materials [on a few specific instances] was admitted by prison officials to be an error. . . .").

FN46. As the Supreme Court has observed, RLUIPA does not "elevate accommodation of religious observances over an institution's need to maintain order and safety." Cutter v. Wilkinson, 544 U.S. 709, 722 (2005).

FN47. See Hysell, 2008 U.S. Dist. LEXIS 2721, at *24-26 (dismissing prisoner's RLUIPA claim where "the denial of [religious] materials [on a few specific instances] was . . . an error and efforts were taken to rectify the situation").

FN48. (Dkt. No. 1, Ex. B [Plf.'s Compl., attaching the written ruling of the 4/5/04 Shawangunk C.F. IGRC regarding Plf.'s grievance, which was incorporated by reference by the allegations contained in Paragraphs 14 and 15 of Plf.'s Compl.].) See Fed.R.Civ.P. 10(c) ("Statements in a pleading may be adopted by reference in a different part of the same pleading. . . . A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.").

For these reasons, I recommend that Plaintiff's RLUIPA claims be dismissed for failure to state a claim upon which relief may be granted.

C. Whether Any of Plaintiff's Claims Are Barred by the Applicable Statute of Limitations

Plaintiff is partly mistaken and partly correct when he argues that the applicable limitations period that governs his claims is not three years (under 42 U.S.C. § 1983) but four years (under 28 U.S.C. § 1658[a]). (Dkt. No. 13, Plf.'s Memo. of Law, at 3.)

He is mistaken in that the statute giving rise to his claims under the First, Eighth and Fourteenth Amendments is 42 U.S.C. § 1983, not RLUIPA. Section 1983 provides, in pertinent part, "Every person who . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ." 42 U.S.C. § 1983 [emphasis added]. Here, Plaintiff is alleging, in part, that Defendants subjected him to the deprivation of rights under the Constitution (i.e., the First, Eighth and Fourteenth Amendments). It is well settled that the statute of limitations for Section 1983 actions brought in a federal court sitting in New York is three years.^FN49 As a result, it is inappropriate to rely on the four-year limitations period provided by 28 U.S.C. § 1658(a) when analyzing the timeliness of his First, Eighth and Fourteenth Amendment claims, since Section 1658(a) applies only when a limitations period is not "otherwise provided by law." 28 U.S.C. § 1658(a).

FN49. See Owens v. Okure, 488 U.S. 235, 251 (1989) ("New York's 3-year statute of limitations governing general personal injury actions" applies to Section 1983 claims).

*7 However, only some of Plaintiff's First, Eighth and Fourteenth Amendment claims (i.e., those based on events occurring prior to April 10, 2004, which was three years before he signed his Complaint in this action) appear barred by the applicable three-year limitations period. More specifically, Plaintiff's constitutional claims against Defendants John Doe # 1 and John Doe # 2 were based on events occurring on March 19, 2004, and April 5, 2004, which are outside the applicable three-year limitations period. ( See, supra, Part I.A. of this Report-Recommendation.) It is only his constitutional claims against Defendants Fischer and LeClairewhich apparently arise from their (alleged) failure to reverse Superintendent Smith's decision of April 13, 2004, on appeal-that fall within the applicable three-year limitations period. ( Id.) (I use the word "apparently" because, as explained above in Part III.A. of this Report-Recommendation, Plaintiff does not allege what facts gave rise to his constitutional claims against Defendants Fischer and/or Le-Claire.)

Moreover, Plaintiff appears correct when he argues that his civil rights claims arising solely under RLUIPA are governed by a four-year limitations period. See Williams v. Gerges, 05-CV-2555, 2005 WL 1773857, at *5-6 (E.D.N.Y. July 26, 2005).

For these reasons, I recommend that, in the alternative, the Court dismiss Plaintiff's constitutional claims (i.e., his Section 1983 claims) against Defendants John Doe # 1 and John Doe # 2 as untimely, but that the Court otherwise reject Defendants' untimeliness argument.

D. Whether Plaintiff's Claims Against Defendant DOCS Are Barred by Section 1983's Express Language and/or the Eleventh Amendment

I agree with Defendants that Plaintiff's constitutional claims against Defendant DOCS are barred by Section 1983's express language and, alternatively, by the Eleventh Amendment to the United States Constitution. (Dkt. No. 11, Part 2, at 2 [Defs.' Mem. of Law].) However, I have trouble concluding that Plaintiff's RLUIPA claims against Defendant DOCS are also barred by the Eleventh Amendment. (Dkt. No. 13, Plf.'s Memo. of Law, at 2.)

Generally, plaintiffs may sue governmental entities (such as DOCS) under RLUIPA because, as Plaintiff argues, under RLUIPA, "[t]he term 'government' (A) means- (i) a State, county, municipality, or other governmental entity created under the authority of a State; (ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and (iii) any other person acting under color of State law; and (B) for the purposes of sections 2000cc-2(b) and 2000cc-3 of this title, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law." 42 U.S.C. § 2000cc-5(4) [emphasis in original].

The more significant issue before the Court concerns the applicability, under the circumstances, of the Eleventh Amendment, which generally grants states sovereign immunity from such suits unless (1) Congress has abrogated a state's sovereign immunity through a statutory enactment or (2) a state has expressly waived its sovereign immunity. It appears that, after the enactment of RLUIPA in 2000, states could accept federal funds for prison activities or programs only on the condition that they comply with RLUIPA, which effectively constituted a waiver of their sovereign immunity under the Eleventh Amendment.^FN50 As a result, if New York State has accepted federal funds for prison activities or programs, it would appear that it has waived its sovereign immunity.

FN50. See Gerhardt v. Lazaroff, 221 F.Supp.2d 827, 851-52 (S.D.Ohio 2002) (state was not immune under Eleventh Amendment from suit by prisoners alleging violations of RLUIPA since state's acceptance of federal funds for prison activities or programs on condition that it comply with RLUIPA constituted waiver of immunity), aff'd sub nom., Cutter v. Wilkinson, 423 F.3d 579 (6th Cir. 2005); accord, Smith v. Allen, 502 F.3d 1255, 1276 n. 12 (11th Cir. 2007); Marsh v. Granholm, 05-CV-0134, 2006 WL 2439760, at *12 (W.D.Mich. Aug. 22, 2006).

*8 Here, it is questionable whether Plaintiff has alleged facts plausibly suggesting that New York State did so waive its sovereign immunity. Plaintiff has alleged, in his opposition memorandum of law, that RLUIPA "is an exception to the 11th Amendment's restrictions on federal suits against States and their agencies-DOCS." (Dkt. No. 13, Plf.'s Memo. of Law, at 2.) Granted, Plaintiff's statement makes no mention of the acceptance of any federal funds by New York State, as did the plaintiff in the case of Orafan v. Goord, 00-CV-2022, 2003 U.S. Dist. LEXIS 14277, at *24 (N.D.N.Y. Aug. 14, 2003) (Treece, M.J.) ("Plaintiffs have sufficiently alleged that DOCS is a state agency which receives federal funds [for purposes of the waiver of Eleventh Amendment sovereign immunity under RLUIPA], and in assuming such a statement is accurate, the Defendants' Motion to Dismiss is recommended denied on this ground."), adopted by Decision and Order (N.D.N.Y. filed Sept. 30, 2003) (Kahn, J.). However, whether or not New York has accepted such funds would appear to be a fact of which Plaintiff would have absolutely no personal knowledge. Under the circumstances, I am simply unable to conclude with any confidence that Plaintiff's RLUIPA claim against DOCS fails to state a claim because of the Eleventh Amendment. Rather, that claim fails to state a claim for the reasons stated above in Part III.B. of this Report-Recommendation.

For these reasons, I recommend that, in the alternative, the Court dismiss Plaintiff's constitutional claims (i.e., his Section 1983 claims) against Defendant DOCS as barred by the express language of Section 1983 and/or the Eleventh Amendment, but that the Court otherwise reject Defendants' argument as it relates to Plaintiff's RLUIPA claims against Defendant DOCS. ACCORDINGLY, it is

RECOMMENDED that Defendants' motion to dismiss for failure to state a claim (Dkt. No. 11) be GRANTED, and that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED with prejudice.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Svcs., 892 F.2d 15 [2d Cir. 1989]); 28 U.S.C. § 636(b); Fed.R.Civ.P. 6(a), 6(e), 72.

N.D.N.Y., 2008.

Hankins v. NYS Dept. of Correctional Services Not Reported in F.Supp.2d, 2008 WL 2019655 (N.D.N.Y.)

Westlaw.

Slip Copy, 2010 WL 1330019 (N.D.N.Y.)

(Cite as: 2010 WL 1330019 (N.D.N.Y.))

Only the Westlaw citation is currently available.

United States District Court, N.D. New York. Gary SMITH, Plaintiff, v. M. GRAZIANO, Acting Superintendent/Deputy Superintendent of Administration, Greene Correctional Facility; Philip Heath; Deputy Superintendent of Programs, Greene Correctional Facility; John Doe, Correctional Officer # 1, Greene Correctional Facility; John Doe, Correctional Officer # 2, Greene Correctional Facility; John Doe, Correctional Officer # 3, Greene Correctional Facility; and John Doe, Ministerial Program Coordinator, Greene Correctional Facility, Defendants. Civ. No. 9:08-CV-469 (GLS/RFT). March 16, 2010.

Gary Smith, Jamaica, NY, pro se.

Hon. Andrew M. Cuomo, Attorney General of the State of New York, Steven H. Schwartz, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants Graziano and Heath^FN1.

FN1. Several Defendants remain unidentified, and thus, unserved. Only Defendants Graziano and Heath have appeared in this action.

REPORT-RECOMMENDATION AND ORDER

RANDOLPH F. TREECE, United States Magistrate Judge.

*1 On April 30, 2008, pro se Plaintiff Gary Smith filed a civil rights Complaint alleging the Defendants violated his rights established by the First Amendment to the United States Constitution and the Religious Land Use and Institutionalized Persons Act (RLUIPA), codified at 42 U.S.C. § 2000cc, et seq. Dkt. Nos. 1, Compl.;^FN2 22, Am. Compl. He further alleges violations of Articles 1, 3, and 11 of the New York State Constitution as well as New York Corrections Law § 610. The basis for Plaintiff's lawsuit is his contention that the Defendants infringed upon and interfered with his right to freely exercise his religion when he was denied the opportunity to attend Protestant religious services on three separate occasions during his incarceration at Greene Correctional Facility in 2006.

FN2. At the time Plaintiff initiated this lawsuit, he was housed at the Anna M. Kross Center (AMKC), located in East Elmhurst, New York. Since the allegations contained in his Complaint (and Amended Complaint) concern matters that took place during his incarceration in 2006 at Greene Correctional Facility, venue was properly maintained in this District. 28 U.S.C. § 1391(b). The address currently on file for Plaintiff is a civilian address and appears to be inaccurate. See infra Part I.

Currently pending before the Court is Defendants Graziano's and Heath's Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56. Dkt. No. 47. Despite being granted multiple extensions of time, Dkt. Nos. 48, 52, 56, 59, Plaintiff has failed to respond to the Motion. For the reasons that follow, it is recommended that Defendants' Motion be granted, and Plaintiff's Amended Complaint be dismissed in its entirety.

I. FAILURE TO PROSECUTE

At the outset, we are compelled to note that, not only has Plaintiff failed to respond to Defendants' Motion for Summary Judgment, but he has also failed to communicate with this Court in over six months, causing this Court to wonder whether Plaintiff has abandoned his case.

Throughout this litigation, Plaintiff has stumbled over his responsibility to timely ensure that the Court (and his adversaries) has a current address for him. Plaintiff's shirking of his duty has resulted in the return of multiple documents sent to him. See Mail Returned to the Court, Dkt. Nos. 34, 42-44, 61-62. Time and again, Plaintiff belatedly provided current addresses to the Court, resulting in the Clerk of the Court having to re-serve documents that had been returned as undeliverable. See Notification of Updated Address, Dkt. Nos. 7, 8, 24, 28, 36, 37, 39, 53, 60. Plaintiff's belated notices of changes in his address have stymied the effective administration of this case, and, yet, this is not the only negative effect caused by Plaintiff sidestepping his responsibility. For example, earlier in the litigation, Plaintiff's failure to timely update his address directly impacted the Defendants' ability to serve responses to Plaintiff's discovery demands. See Dkt. No. 41, Order, dated Apr. 6, 2009, at p. 2 (detailing the Defendants' effort to serve Plaintiff with their discovery responses, only to have such responses returned on multiple occasions). Thus, Defendants too have incurred extra-expenses by having to re-serve discovery responses. We conclude that Plaintiff's failure to ensure that his address is current not only burdened the Court and Defendants with extra expenses, but also caused confusion and delay.

*2 Plaintiff's apathetic approach to this litigation is not only reflected by his failure to update his address. He has also, inexplicably, failed to respond to Defendants' Motion for Summary Judgment, which was filed approximately nine months ago, on June 9, 2009, and which we believe Plaintiff received. Dkt. No. 47. The Motion was served on Plaintiff at his then-current address, the Anna M. Kross Center (AMKC). Id. Though Plaintiff twice updated his address thereafter, there has been no indication from Defendants that their Motion was returned to them as undeliverable. Furthermore, on numerous occasions, Plaintiff sought, and was granted, extensions of time to respond to Defendants' Motion for Summary Judgment. See Dkt. Nos. 51, 52, 56, 59. We note that in one of his extension requests, Plaintiff sought to distinguish his claim for relief from one of the cases Defendants relied upon in seeking summary judgment.^FN3 Dkt. No. 51. In view of these facts, we can safely presume that Plaintiff indeed received a copy of that Motion, as well as the notice that, in accordance with this District's Local Rules 7.1(a)(3) and 56.2, accompanied the Motion and warned Plaintiff of the consequences that could occur should he fail to respond to the Defendants' Motion. Dkt. No. 47 at pp. 1-2. Similarly, Court Orders/Notices that were resent in September 2009 to Plaintiff's last known address have not been returned as undeliverable, thus we can presume that Plaintiff received these mailings as well, and that he is aware of the gravity of a motion for summary judgment. See Young v. City of Syracuse Dep't of Public Works, 307 Fed. Appx. 502, 2009 WL 136920, at *1 (2d Cir. Jan. 21, 2009) (unpublished opinion) ("[T]he failure of a district court to apprise pro se litigants of the consequences of failing to respond . . . to a motion for summary judgment is ordinarily grounds for reversal." (quoting Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999))).

FN3. In his letter to the Court, Plaintiff noted that the Defendants cited Hanton v. Mathiau, 29 Fed. Appx. 772, 773 (2d Cir. 2000) in support of their Motion for Summary Judgment. Plaintiff advised the Court that the Hanton case is distinguishable from his because it is a First Amendment case and not one brought pursuant to RLUIPA, which, according to Plaintiff, "is evaluated under a different standard." Dkt. No. 51 at pp. 1-2.

Despite all the above precautions and warnings provided to Plaintiff, he has failed to oppose Defendants' Motion for Summary Judgment. And, it further appears that Plaintiff has again failed to notify the Court of a change in his address. The last communication this Court received from Plaintiff is a letter, dated August 26, 2009, wherein he provides an updated civilian address. Dkt. No. 60. Though documents mailed to this address have not been returned to the Court, in light of Plaintiff's apparent abandonment of this case, a Chambers staff member conducted a review of the New York State Department of Corrections (DOCS) Inmate Locator Website. According to the information available on that website, as of December 7, 2009, Plaintiff was returned to prison from parole and is currently housed at Fishkill Correctional Facility. See Attach. 1, http://nysdocslookup.docs.state.ny.us. Yet, he has not notified the Court of his change in address, nor has he responded to Defendants' Motion.

*3 Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute an action or comply with any order of the court. Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). "This power to dismiss an action may be exercised when necessary to achieve orderly and expeditious disposition of cases." Freeman v. Lundrigan, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996) (citing Rodriguez v. Walsh, 1194 WL 9688, at *1 (S.D.N.Y. Jan. 14, 1994)).

Moreover, a litigant has the duty to inform the court of any address changes. As then District Judge Pooler stated:

It is neither feasible nor legally required that the clerks of the district courts undertake independently to maintain current addresses on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications between the clerk and the parties or their counsel will be conducted principally by mail. In addition to keeping the clerk informed of any change of address, parties are obliged to make timely status inquiries. Address changes normally would be reflected by those inquiries if made in writing.

Dansby v. Albany County Corr. Facility Staff, 1996 WL 172699, at *1 (N.D.N.Y. Apr. 10, 1996) (quoting Perkins v. King, No. 84-3310, slip op. at 4 (5th Cir. May 19, 1985) (other citations omitted)); see generally N.D.N.Y.L.R. 41.2(b).

In light of the facts that more than six months have elapsed since Plaintiff communicated with the Court, he has failed to respond to Defendants' Motion, and has failed to maintain a current address with the Court, the Court finds that he has failed to prosecute this matter and presumably has abandoned his case. Smith's failure to prosecute this matter and provide a change of address warrants a recommendation of dismissal. See FED. R. CIV. P. 41(b) (allowing for dismissal of an action for failure to prosecute); see also N.D.N.Y.L.R. 41.2(a) (noting that a plaintiff's failure to take action for four months is "presumptive evidence of lack of prosecution); N.D.N.Y.L.R. 41.2(b) (authorizing dismissal for failure to provide a change of address). Indeed, courts in the Northern District of New York have dismissed lawsuits brought by pro se plaintiffs for failure to provide a current address. See Rivera v. Goord, 1999 WL 33117155 (N.D.N.Y. Sept. 14, 1999); Fenza v. Conklin, 177 F.R.D. 126 (N.D.N.Y. 1988); Morgan v. Dardiz, 177 F.R.D. 125 (N.D.N.Y. 1998); Williams v. Faulkner, 1998 WL 278288 (N.D.N.Y. May 20, 1998); Dansby v. Albany County Corr. Facility Staff, 1996 WL 172699 (N.D.N.Y. Apr. 10, 1996).

Nevertheless, while we recommend dismissal of this action due to Plaintiff's failure to prosecute, we will continue our analysis of the substance and merits of Plaintiff's claims.

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

A. Summary Judgment Standard

*4 Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [] affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).

To defeat a motion for summary judgment, the nonmovant must "set forth specific facts showing [that there is] a genuine issue for trial," and cannot rest "merely on allegations or denials" of the facts submitted by the movant. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).

B. Plaintiff's Failure to Respond to the Defendants' Motion

*5 As noted above, Plaintiff has failed to respond to Defendants' Motion for Summary Judgment. Pursuant to the Local Rules of Practice for the Northern District of New York, "[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the nonmoving party's failure to file or serve any papers . . . shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown." N.D.N.Y.L.R. 7.1(b)(3); see also Douglas v. New York State Div. of Parole, 1998 WL 59459, at * 1 (N.D.N.Y. Feb. 10, 1998) (noting that plaintiff's failure to oppose defendants' dispositive motion, and his failure to show good cause for the omission, may alone justify granting the motion).

"The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Even in the absence of a response, Defendants are entitled to summary judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id.; FED. R. CIV. P. 56(c). Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Rule 7.1 Statement of Facts ("7.1 Statement"), supplemented by Plaintiffs' verified Amended Complaint (Dkt. No. 22), as true. See Lopez v. Reynolds, 998 F.Supp. 252, 256 (W.D.N.Y. 1997); N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.").

C. John Doe Defendants

In his Original Complaint, filed on April 30, 2008, (Dkt. No. 1), and in the Amended Complaint, filed on October 8, 2008, (Dkt. No. 22), Plaintiff lists four John Doe Defendants. To date, Plaintiff has failed to identify these John Does. At the outset of this litigation, Plaintiff was advised by this Court that he must take steps to ascertain the identities of the three John Doe Defendants should he wish to maintain his suit against them. Dkt. No. 5 at p. 2. Within that Order, this Court specifically stated that "Plaintiff is further advised that if [the John Doe Defendants] are not timely served, this action will be dismissed as against them." Id. Months later, Plaintiff asked permission to amend his Complaint so that he may add another John Doe Defendant and further bolster some factual allegations. Dkt. No. 20. In an Order, dated October 8, 2008, this Court noted that Plaintiff could, under Federal Rule of Civil Procedure 15(a), file his Amended Complaint as of right and needn't ask for permission to do so. Dkt. No. 21. Nevertheless, we took the opportunity to again warn Plaintiff of the importance of timely identifying and serving the John Doe Defendants to avoid dismissal of his claims against them. Id. at pp. 1-2. Then, after noticing Plaintiff had not responded to Defendants' Motion, even after being granted multiple extensions of time to do so, this Court issued a Notice/Order advising Plaintiff of the importance of responding to such a motion, and further directing him to submit a status report regarding his efforts to identify each John Doe Defendant. Dkt. No. 56, Notice/Order, dated Aug. 25, 2009, at p. 3. Neither a response nor a status report was forthcoming.^FN4

FN4. While Plaintiff has not provided a status report, this Court is familiar with at least some of the efforts undertaken by Plaintiff to ascertain the Doe identities. During the discovery phase of this action, this Court held a couple of telephone conferences to address some discovery disputes that arose out of Defendants' failure to timely respond to Plaintiff's discovery demands. See Minute Entries, dated April 6, 2009 and July 1, 2009; see also Dkt. No. 41, Order, dated Apr. 6, 2009; Dkt. No. 52, Order, dated July 1, 2009. It is this Court's impression that Plaintiff had made some attempt to heed the Court's warning and ascertain the identities of certain John Doe Defendants. In his Motions to Compel, and during the subsequent related conferences with the Court, Plaintiff objected to, inter alia, Defendants' response to Interrogatory Number 18 and Document Request Number 2. Therein, Plaintiff sought the names of the Corrections Officers on duty during a specific time period, presumably during the time period he was denied the right to attend Protestant Religious Services. Defendants responded that such information (charts and records) had been destroyed in a fire in January 2008. See Dkt. No. 45, Pl.'s Mot. to Compel, at p. 5. We thereafter modified and narrowed the request and directed Defendants to respond accordingly. Dkt. No. 52. The Court has not received any further communication from Plaintiff indicating that the Defendants failed to abide by the Court's directives. These efforts possibly concern the three John Doe Corrections Officers. However, it is not clear what steps Plaintiff took to identify the last John Doe Defendant, identified only as the Ministerial Program Coordinator.

*6 Under Federal Rule of Civil Procedure 4(c)(1), the plaintiff is responsible for service of the summons and complaint for each defendant within a specified time period. Specifically, the plaintiff must effectuate service of process within 120 days of the filing of the complaint. FED. R. CIV. P. 4(m).^FN5 Failure to properly serve any defendant in accordance with the Federal Rules will result in the court, upon motion or on its own initiative, to dismiss the case without prejudice as to that defendant. Id.

FN5. Under the Local Rules for the Northern District of New York, a plaintiff must effectuate service within sixty (60) days. N.D.N.Y.L.R. 4.1(b).

Because he failed to timely identify and serve the John Doe Defendants, and because as outlined below, no cognizable cause of action is asserted herein, we recommend dismissal of all claims asserted against them. Cooks v. Delpiano, 2008 WL 4186337, at * 1 n. 1 (N.D.N.Y. Sept. 10, 2008); Pravda v. City of Albany, 178 F.R.D. 25, 26 (N.D.N.Y. 1998).

D. Exhaustion

The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires that for actions brought by prisoners under 42 U.S.C. § 1983, the inmate must first exhaust his or her administrative remedies. The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (citations omitted). Exhaustion is similarly required even if the prisoner asserts futility as an excuse. See Booth v. Churner, 531 U.S. 731, 741 n. 6 (2001) (refusing to "read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.") (cited in Marvin v. Goord, 255 F.3d 40, 43 (2d Cir. 2001)). Accordingly, the exhaustion requirements apply even where the grievance process does not permit an award of money damages and the prisoner seeks only money damages, provided the grievance tribunal has the authority to take some responsive action. See Thomas v. Wright, 2002 WL 31309190, at *5 (N.D.N.Y. Oct. 11, 2002) (citing Booth v. Churner, 531 U.S. 731 (2001)).

In New York State, the administrative remedies consist of a three-step review process. First, a grievance is submitted to the Inmate Grievance Review Committee (IGRC), a committee comprised of both inmates and facility employees.^FN6 N.Y. COMP. CODES R. REGS. tit. 7, § 701.5(b). The IGRC reviews and investigates the formal complaints and then issues a written determination. Id. Second, if the IGRC decision is appealed, the superintendent of the facility reviews the IGRC's determination and issues a decision. Id. at § 701.5(c). Finally, if the superintendent's decision is appealed, the Cental Office Review Committee (CORC) makes the final administrative determination. Id. at § 701.5(d). Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to § 1983 in federal court. Reyes v. Punzal, 206 F.Supp.2d 431, 432 (W.D.N.Y. 2002) (citing Sulton v. Greiner, 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000)); Petit v. Bender, 2000 WL 303280, at *2-3 (S.D.N.Y. Mar. 22, 2000).

FN6. The IGRC is a five-member body consisting of two voting inmates, two voting staff members, and a nonvoting chair (who may be an inmate, staff member, or volunteer). N.Y. COMP. CODES R. REGS tit.7, § 701.4.

*7 Within his Amended Complaint, Plaintiff alleges that, after being transferred to Greene Correctional Facility on or about July 18, 2006, he was denied access to Protestant religious services on three separate occasions: July 23, 2006, September 10, 2006, and September 17, 2006. Am. Compl. at ¶¶ 4, 5, 12, 16. He categorically states that he made "a formal complaint with all the proper personnel departments." Id. at ¶ 20. Without the benefit of Plaintiff's response, the Court accepts as true, and relies primarily, on the following facts as set forth by the Defendants. With regard to the denial of access to religious services, Plaintiff filed one grievance in 2006 which he appealed to CORC. Dkt. No. 47-2, Karen Bellamy Decl., dated Mar. 13, 2009, at ¶ 3, Ex. 1; Dkt. No. 47-3, Steven Schwartz, Esq., Affirm., dated June 9, 2009, Ex. B. Within that Grievance, dated September 17, 2006, Plaintiff complains of being denied the right to practice his religious beliefs "for the past two following Sundays." Schwartz Affirm., Ex. B. There is no mention of having been similarly denied access on July 23, 2006, and the ensuing investigation within the Inmate Grievance Program centered solely on the two dates in September. Id. Accordingly, Plaintiff has failed to fully exhaust his claim with regard to being denied religious services on July 23, 2006, and thus, the Court will only consider whether denial of religious services on two separate dates in September 2006 constitutes a violation of Plaintiff's First Amendment and RLUIPA rights.^FN7

FN7. In liberally construing Plaintiff's Amended Complaint, it appears that the July 23rd event is distinguishable from the September events. Plaintiff notes that he was transferred to Greene on or about July 18, 2006. Am. Compl. at ¶ 4. Upon admission, Plaintiff was reportedly held in the F-1 dormitory. Id. at ¶ 5. These facts are confirmed by the Defendants' records. Schwartz Affirm., Ex. A. Plaintiff was reportedly told on July 23, 2006, that religious services were not available to inmates in the F-1 dormitory and Plaintiff had to wait until he was transferred to another dormitory. Am. Compl. at ¶ 5. Thereafter, on or about July 28, 2006, Plaintiff was transferred from the F-1 dormitory unit to the E-2 dormitory unit. Id. at ¶ 7. On or about July 30, 2006, Plaintiff was allowed to attend weekly communal Protestant services. Id. at ¶ 8. On the other hand, the September denials, as discussed more fully below, were not made based upon Plaintiff's housing status, but rather, were later revealed to be a result of miscommunication amongst the prison staff.

E. RLUIPA and First Amendment 1. Relevant, Uncontested Facts ^FN8

FN8. Defendants' Motion for Summary Judgment is supported entirely by prison records, namely grievance records. It is well settled that motions for summary judgment must be supported by admissible evidence. Major League Baseball Properties, Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008). Hearsay evidence is not admissible unless it falls within an exception to the hearsay rule. FED.R.EVID. 802. Prison grievance records, although hearsay, may be admissible under the business records exception to the hearsay rule. That exception renders admissible records of "acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge" but only if such records are "kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation." Facts supporting admissibility must be supplied "by the testimony of the custodian or other qualified witness or by certification" that complies with Federal Rule of Evidence 902. FED.R.EVID. 803(6). Defendants submit a Declaration from Karen Bellamy, Director of the Inmate Grievance Program, who is the "custodian of the records maintained by the [CORC]." Dkt. No. 47-2 at ¶ 1. While attached to Ms. Bellamy's Declaration is a certified printout of all the grievances Mr. Smith filed and appealed to CORC, she does not certify the relevant grievance packet. That packet is instead attached to Assistant Attorney General Schwartz's Affirmation. Since the proper custodian failed to certify the grievance packet, it is technically inadmissible. See Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir. 1980). Nevertheless, we have considered the grievance packet because it appears that in bringing this action and naming certain Defendants, Plaintiff relied upon the same records.

As mentioned above, Plaintiff filed a grievance on September 17, 2006, alleging he was denied religious services on two occasions: September 10, 2006 and September 17, 2006. Schwartz Affirm., Ex. B at p. 3. Defendant Philip Heath, Deputy Superintendent for Program Services, conducted an investigation and concluded that Protestant religious services did not take place on either September 10 or September 17 due to a lack of communication involving security staff and ministerial services. Id. at p. 4. According to Defendant Heath's Interdepartmental Communication, dated September 27, 2006, the miscommunication arose after security staff had been directed, on September 8, 2006, that all programs, including religious services, had to be conducted on a call-out basis. Id. That information, however, had not been shared with Ministerial Services staff, and thus, services were cancelled due to a lack of call-outs. Id. Defendant Heath further explained that Ministerial Services staff were advised, via e-mail, on September 14, 2006, of the need for a call-out, and yet, they still failed to conform to the new policy. As a consequence, services were again cancelled on that date. Id. Defendant Heath concluded his memo with the assurance that these issues had been resolved and no further interruptions to religious services were anticipated. Id. The IGRC agreed with the investigation and Plaintiff appealed to the Superintendent. Id. at p. 5. On October 4, 2006, Defendant Graziano, in his capacity of Acting Superintendent/Deputy Superintendent of Administration, affirmed the investigation and denied the grievance, finding no substantiation to Plaintiff's claim that he was denied access to religious services by staff. Id. at p. 7. Plaintiff appealed that decision to CORC. Id. On October 25, 2006, CORC accepted the grievance in part, acknowledged the investigation, and emphasized that appropriate administrative action had been taken to resolve the issues. Id. at p. 9.

2. Personal Involvement

*8 Plaintiff attributes the denial of religious services to the acts of the unnamed Ministerial Program Coordinator, who allegedly advised and counseled Defendants Graziano and Heath. Am. Compl. at ¶¶ 12 16. Yet, Plaintiff never articulates the factual basis for holding Defendants Graziano and Heath responsible. Indeed, it appears that the Defendants' inclusion in this lawsuit is based upon their responses to Plaintiff's Grievance. In other words, they are being sued in their supervisory capacity.

a. Section 1983

It is well settled that the personal involvement of a defendant is a prerequisite for the assessment of damages in a § 1983 action, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), and furthermore, the doctrine of respondeat superior is inapplicable to § 1983 claims. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see also Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) ("[I]t is well settled that to state a civil rights claim under § 1983, a complaint must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983") (citations omitted).

The Second Circuit has stated that a supervisory defendant may have been personally involved in a constitutional deprivation within the meaning of § 1983 if he: (1) directly participated in the alleged infraction; (2) after learning of the violation, failed to remedy the wrong; (3) created a policy or custom under which unconstitutional practices occurred or allowed such policy or custom to continue; or (4) was grossly negligent in managing subordinates who caused the unlawful condition or event. Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted).

Pointedly, "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (defendant may not be held liable simply because he holds a high position of authority).

The record before the Court reveals that the extent of Defendants Graziano's and Heath's participation was merely investigating and ruling upon Plaintiff's Grievance. Even Plaintiff's pleading reveals that these two Defendants had limited to no involvement in the events leading up to Plaintiff's denial of religious services attendance. Indeed, Defendant Graziano merely responded to Plaintiff's Grievance, and thus was not personally involved in any wrongdoing. Thus, the only basis from which the Court may find some responsibility as to Graziano and Heath is if we were to determine that Plaintiff's rights had been violated and Defendants Graziano and Heath failed to remedy the wrong after learning about it.

b. RLUIPA

*9 Neither the Supreme Court nor the Second Circuit have directly addressed the issue of whether personal involvement is a prerequisite for any valid RLUIPA claim, as it is under § 1983. However, district courts in this Circuit and elsewhere have held that personal involvement is a necessary component of valid RLUIPA claims. See Joseph v. Fischer, 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, 2009 WL 3199520, at *9 (N.D.N.Y. Sept. 30, 2009) (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, 2009 WL 890521, at *3 (S.D.Ohio Mar. 31, 2009) Alderson v. Burnett, 2008 WL 4185945, at *3 (W.D.Mich. Sept.8, 2008)). We are in agreement with that conclusion. RLUIPA provides that "[n]o government" shall substantially burden the religious exercise of confined persons, 42 U.S.C. § 2000cc-1(a), and defines "government" as "(i) a State, county, municipality, or other governmental entity created under the authority of the state; (ii) any branch, department, agency, instrumentality, or official of an entity listed in cause (i); and (iii) any other person acting under color of state law," 42 U.S.C. § 2000cc-5(4)(A). Thus, RLUIPA protects inmates (and others) against actions taken by a governmental entity or person acting under color of state law; in other words, there must be some personal involvement on the part of a defendant in the alleged RLUIPA violation.

3. First Amendment Analysis

4. RLUIPA Analysis

First AmendmentPell v. Procunier,417 U.S. 817822 Salahuddin v. Coughlin,993 F.2d 306308Benjamin v. Coughlin,905 F.2d 571574see also Pell v. Procunier, 417 U.S. 817822 Farid v. Smith,850 F.2d 917925O'Lone v. Estate of Shabazz, 482 U.S. 342 349107 S.Ct. 240096 L.Ed.2d 282see also Ford v. McGinnis,352 F.3d 582588Farid v. Smith,850 F.2d at 926^FN9 Gill v. Defrank,2000 WL 897152aff'd,8 Fed. Appx. 35de minimis, Williams v. Weaver,2006 WL 2794417Persad v. Savage,2004 WL 1570286Gill v. DeFrank,8 Fed. Appx. 3537see also Hanton v. Mathiau,29 Fed. Appx. 772773Graham v. Mahmood,2008 WL 1849167inter alia, Hanton de minimisFirst Amendmentdismissed.

FN9. It seems to be a matter of considerable debate in this Circuit as to whether a plaintiff must first establish a "substantial" burden prior to bringing a First Amendment free exercise claim. See McEachin v. McGuinnis, 357 F.3d 197, 202 (2d Cir. 2004) (questioning whether the substantial burden standard must be applied in constitutional free exercise claims and citing to DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) and Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 170 (3d Cir. 2002) as support for the Third Circuit's policy of explicitly rejecting the substantial burden analysis as violating the precept, articulated in Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 887, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that "courts must not presume to determine the place of a particular belief in a religion"). In those narrow circumstances, when the Second Circuit has applied the substantial burden test, they defined a substantial burden as "a situation where the state puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." Id. (quoting Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996)).

*10 ^FN10 Cutter v. Wilkinson, 544 U.S. 709721125 S.Ct. 2113161 L.Ed.2d 1020

FN10. RLUIPA was enacted in the wake of the Supreme Court's invalidation of the Religious Freedom Restoration (RFRA) Act of 1993 in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), on the grounds that it exceeded Congress's power under section five of the Fourteenth Amendment ("The Congress shall have power to enforce this article by appropriate legislation"). RLUIPA "corrected the constitutional infirmity of RFRA by invoking federal authority under the Spending Clauses to reach any program or activity that receives federal financial assistance, thereby encompassing every state prison." Fluellen v. Goord, 2007 WL 4560597, at *5 (W.D.N.Y. Mar. 12, 2007) (citations omitted).

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 the burden on that person —

(1) is in furtherance of a compelling governmental interest;

(2) and is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a).

Thus, Plaintiff can establish a RLUIPA violation by proving that the acts of prison officials constitute a "substantial burden" on his religious exercise without promoting a compelling governmental interest that is advanced through the least restrictive means. As such, RLUIPA places a much higher burden on defendants than does the First Amendment, which, as articulated in the case of Turner v. Safely, requires only that a burden be "reasonably related to legitimate penological interests," not the least restrictive means of protecting compelling governmental interests.

As noted above, Plaintiff has failed to establish that the cancellation of two religious services constituted a substantial burden on his ability to exercise his religious beliefs. Thus, for the same reasons articulated above, Plaintiff's RLUIPA claim fails and should be dismissed.

III. CONCLUSION

For the reasons stated herein, it is hereby

RECOMMENDED, that the John Doe Defendants be dismissed due to Plaintiff's failure to timely identify and serve such individuals; and it is further

RECOMMENDED, that the Defendants' Motion for Summary Judgment (Dkt. No. 47) be granted and the entire Amended Complaint be dismissed; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).

N.D.N.Y., 2010.

Smith v. Graziano

Slip Copy, 2010 WL 1330019 (N.D.N.Y.)