Opinion
Civil Action No. 9:13-CV-0606 (BKS/DEP)
02-17-2016
LEROME HILSON, Plaintiff, v. S. BEAURY, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: LEROME HILSON, Pro Se 05-A-1881 Great Meadow Correctional Facility Box 51 Comstock, NY 12821 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: ADRIENNE J. KERWIN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: LEROME HILSON, Pro Se
05-A-1881
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is an action brought by pro se plaintiff Lerome Hilson, a New York State prison inmate, pursuant to 42 U.S.C. § 1983, against three corrections employees stationed at the facility in which he was confined at the relevant times alleging that they violated his civil rights. In his complaint, Hilson contends that he was retaliated against for filing a grievance against a corrections officer who is not a defendant in this action, and was deprived of his First Amendment right to freely exercise his chosen religion when one of the defendants delayed in processing his request to change religions and another defendant refused to permit him to attend religious education classes and congregate prayer services.
Currently pending before the court in connection with the action is a motion brought by defendants seeking summary judgment dismissing plaintiff's claims as against all three defendants. For the reasons set forth below, I recommend that the motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at the Great Meadow Correctional Facility ("Great Meadow"), located in Comstock, New York, where the incidents forming the basis for his claims allegedly occurred. See generally Dkt. No. 1; Dkt. No. 38-1 at 7. Plaintiff's complaint asserts three separate causes of action against two corrections officers and a prison chaplain arising from three discrete sets of circumstances.
A. Retaliation by Defendant Beaury
On March 25, 2012, while being escorted within Great Meadow, plaintiff became involved in a dispute with Corrections Officers Collins and Roberts, neither of whom is named as a defendant in this action. Dkt. No. 1 at 3; Dkt. No. 38-1 at 8. Although the details of the dispute are not relevant to this action, the genesis of the disagreement was plaintiff's belief that Corrections Officer Collins had harassed him without provocation and Corrections Officer Roberts had inappropriately pat-searched him. Dkt. No. 1 at 3. On March 27, 2012, plaintiff submitted a grievance complaining of those corrections officers' actions. Id.; Dkt. No. 1-1 at 1-4; see also Dkt. No. 38-1 at 10.
Plaintiff originally identified this corrections officer as "Robinson" in his complaint. Dkt. No. 1 at 3. At his deposition in this matter, however, plaintiff clarified that this individual's actual last name is "Roberts." Dkt. No. 38-1 at 9.
According to plaintiff, his grievance against Corrections Officers Collins and Roberts triggered a retaliatory response taken against him by defendant Beaury, another corrections officer. Dkt. No. 38-1 at 10-11, 21. The alleged retaliation began on June 19, 2012, when, while plaintiff was performing his assigned duties preparing breakfast trays for inmates at the facility, defendant Beaury requested cereal from plaintiff for his personal consumption. Dkt. No. 1 at 3-4; Dkt. No. 38-1 at 14, 23-24, 25. Plaintiff informed defendant Beaury that all of the cereal available on the trays was reserved for inmates. Dkt. No. 1 at 4. Defendant Beaury responded by yelling at plaintiff, employing expletives, and adding, "'Now write a Grievance on that.'" Id.; Dkt. No. 38-1 at 18. Although plaintiff alleges in his complaint that, prior to this incident, defendant Beaury had harassed him with threats of retaliation for filing a grievance against Corrections Officers Collins and Roberts, at his deposition, plaintiff denied being harassed by defendant Beaury until this day. Dkt. No. 1 at 4; Dkt. No. 38-1 at 21, 25.
Following the incident, defendant Beaury issued plaintiff a misbehavior report charging him with violating four prison rules. Dkt. No. 1 at 4; Dkt. No. 1-1 at 26; Dkt. No. 38-1 at 28. According to plaintiff, the misbehavior report was based on false allegations and issued in retaliation for plaintiff's filing of a grievance against Corrections Officers Collins and Roberts. Dkt. No. 1 at 3-4; Dkt. No. 38-1 at 31, 45. As a result of the misbehavior report, plaintiff was sentenced to serve thirty days of disciplinary keeplock confinement and lost his prison job. Dkt. No. 1 at 4; Dkt. No. 38-1 at 31-32, 34. Plaintiff maintains that while he was confined in keeplock, defendant Beaury disconnected the electrical power in his cell and prevented him from eating for four days. Dkt. No. 1 at 4; Dkt. No. 38-1 at 41-43.
"Keeplock" is a form of confinement through which an "inmate is confined to his cell, deprived of participation in normal prison routine, and denied contact with other inmates." Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989); accord, Warburton v. Goord, 14 F. Supp. 2d 289, 293 (W.D.N.Y. 1998); Tinsley v. Greene, No. 95-CV-1765, 1997 WL 160124, at *2 n.2 (N.D.N.Y. Mar. 31, 1997) (Pooler, J., adopting report and recommendation by Homer, M.J.) (citing Green v. Bauvi, 46 F.3d 189, 192 (2d Cir. 1995)). "The most significant difference between keeplock and general population inmates is that the former do not leave their cells for out-of-cell programs unless they are a part of mandatory educational programs and general population inmates spend more time out of their cells on weekends." Lee v. Coughlin, 26 F. Supp. 2d 615, 628 (S.D.N.Y. 1998).
B. Conversion to Islam
Plaintiff alleges that in late June 2012, he submitted a change-of-religious-designation form to defendant Eric Payne, the Protestant Chaplain at Great Meadow, requesting that his designated religion be changed from Protestant to Islam. Dkt. No. 1 at 6; Dkt. No. 38-1 at 47. Although defendant Payne has no recollection of plaintiff generally, or of having had any written or verbal contact with him prior to August 2012, Dkt. No. 38-4 at 2, it seems likely that the two did communicate to some degree prior to that date because defendant Payne sent plaintiff a memorandum dated August 2, 2012, that acknowledged plaintiff's request to change his religion from Protestant to Islam and attached a form to be signed, with an instruction to return it for processing so that the desired change could be effectuated. Dkt. No. 1-1 at 75. Plaintiff thereafter complied by submitting the completed form, entitled "CHANGE OF RELIGIOUS DESIGNATION FORM," to defendant Payne on August 9, 2012. Id. at 76. On August 14, 2012, defendant Payne completed his portion of the form, and six days later, the Chaplain of Islam at Great Meadow finalized it. Id.
The record does not include a copy of the change-of-religious-designation form allegedly submitted by plaintiff in June. Attached to plaintiff's complaint, however, are two identical affidavits from Damon Vincent, an inmate working as a Chaplain Clerk at Great Meadow. Dkt. No. 1-1 at 70-73. In those affidavits, one of which is typed and the other handwritten, Vincent states that he recalls plaintiff submitting two change-of-religious-designation forms during the months of July and August 2012. Id. at 70, 73. There is no reference in those affidavits to the submission of a form in June, as alleged by plaintiff.
Plaintiff alleges that, because he submitted his request to change religions in late June 2012, but did not receive a response from defendant Payne until August 14, 2012, he was precluded from participating in Islamic religious practices, including fasting during Ramadan and attending seven Juma prayer services. Dkt. No. 1 at 6; Dkt. No. 38-1 at 49, 51-52.
In support of their motion for summary judgment, defendants have submitted a copy of the version of DOCCS Directive 4202, which governs changes in inmate religious designations, that was in effect in June 2012. Dkt. No. 38-1 at 68-79. According to the version of that directive in effect at the time, inmates could expect a request to change religions to be processed within thirty business days. Id. at 71.
DOCCS Directive 4202 has since been amended and now informs inmates that they can expect their requests to be processed within fourteen business days. Dkt. No. 38-4 at 9.
C. Missed Call-Outs
The third set of circumstances giving rise to this action centers upon defendant E. Ely's failure to provide plaintiff with call-outs for religious education classes on "numerous" occasions, including, specifically, on October 13, 2012 and November 3, 2012. Dkt. No. 1 at 8; Dkt. No. 38-1 at 52, 55. Plaintiff alleges that on those dates, defendant Ely was assigned as a block officer at Great Meadow and that his responsibilities in that role included providing inmates with call-out slips. Dkt. No. 1 at 8; Dkt. No. 38-1 at 53. Plaintiff's grievance complaining of missing religious call-outs, including on October 13, 2012, and November 3, 2012, was ultimately determined in his favor by the superintendent at Great Meadow on December 18, 2012. Dkt. No. 1-1 at 86-87.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about May 28, 2013, and was thereafter granted leave to proceed in forma pauperis. Dkt. Nos. 1, 6. In his complaint, plaintiff asserts claims under the First Amendment against defendants Beaury, Payne, and Ely in their individual and official capacities, and seeks damages and injunctive relief. See generally Dkt. No. 1.
On September 27, 2013, defendants filed a motion seeking dismissal of certain of plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 15. As a result of that motion, I issued a report on August 13, 2014, recommending that plaintiff's claims for damages against the defendants in their official capacities be dismissed but that the motion otherwise be denied. Dkt. No. 23. Senior District Judge District Lawrence E. Kahn adopted that report and recommendation on September 10, 2014. Dkt. No. 24.
Although this case was originally assigned to Judge Kahn, it has since been reassigned to District Judge Brenda K. Sannes. Dkt. No. 28.
On June 5, 2015, following the close of discovery, defendants filed a motion requesting the entry summary judgment dismissing plaintiff's remaining claims. Dkt. No. 38. In their motion, defendants assert that certain of plaintiff's claims are procedurally barred based upon his failure to exhaust available administrative remedies before commencing suit, and additionally arguing that all three of the claims are subject to dismissal on the merits. Dkt. No. 38-10 . Plaintiff has not opposed defendants' motion, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Plaintiff's Failure to Oppose Defendants' Motion
Before turning to the merits of defendant's motion, a threshold issue to be addressed is the legal significance of plaintiff's failure to oppose defendant's motion, and specifically whether that failure should be construed as a consent to the dismissal of his complaint.
Pursuant to Local Rule 7.1(b)(3), by failing to oppose defendant's motion, plaintiff has effectively consented to the granting of the relief sought. That rule provides as follows:
Where 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 non-moving party's failure to file or serve any papers as this Rule requires 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 Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that the district courts may enter summary judgment in favor of the moving party where the non-moving party fails to respond in opposition, but not without first "ensur[ing] that each statement of material fact is support by record evidence sufficient to satisfy the movant's burden of production" and "determin[ing] whether the legal theory of the motion is sound").
In this case, plaintiff has not responded to defendants' motion. The motion was properly filed by the defendants, and defendants, through their motion, have met their burden of demonstrating entitlement to the relief requested. With respect to the question of whether defendants have met their burden, I note that their "burden of persuasion is lightened such that, in order to succeed, [their] motion need only be 'facially meritorious.'" See Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *1 (Scullin, J., adopting report and recommendation by Lowe, M.J.) (finding that whether a movant has satisfied its burden to demonstrate entitlement to a dismissal under Local Rule 7.1(b)(3) "is a more limited endeavor than a review of a contested motion to dismiss" (citing cases)).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Because defendants have accurately cited both proper legal authority and evidence in the record supporting the grounds on which their motion is based, and plaintiff has failed to respond in opposition to the motion to dismiss, I find that defendants' motion is facially meritorious. Jackson, 766 F.3d at 194. Accordingly, I recommend that the court grant defendants' motion on this basis.
It should also be noted that there are additional consequences flowing from plaintiff's failure to file an opposition to defendants' Local Rule 7.1(a)(3) Statement of Material Facts. Local Rule 7.1 provides, in part, that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced this rule in cases where a non-movant has failed to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases). Undeniably, pro se litigants are entitled to some measure of forbearance when defending against summary judgment motions. Jemzura v. Public Serv. Comm'n, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules. Robinson v. Delgado, No. 96-CV-0169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., adopting report and recommendation by Hurd, M.J.). Stated differently, "a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 09-CV-0308, 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.).
Here, because plaintiff was warned of the consequences of failing to properly respond to defendants' Local Rule 7.1 Statement, Dkt. No. 39 at 2, and he has failed to do so, I will deem defendants' facts contained in their Local Rule 7.1(a)(3) Statement as having been admitted to the extent they are supported by accurate record citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). As to any facts not contained in defendants' Local Rule 7.1(a)(3) Statement, in light of the procedural posture of this case, the court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of plaintiff. Terry, 336 F.3d at 137.
B. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
C. Retaliation
Plaintiff first contends that defendant Beaury retaliated against him for having filed a grievance complaining of the conduct of fellow Corrections Officers Collins and Roberts. Dkt. No. 1 at 2-5. Specifically, plaintiff alleges that defendant Beaury issued him a false misbehavior report on June 19, 2012, which resulted in a finding of guilt following a disciplinary hearing, a sanction of thirty-days in keeplock confinement and the loss of his work assignment, and then deprived him of electricity and food while confined in keeplock for four days, beginning on June 22, 2012. Id.; see also Dkt. No. 38-1 at 28, 31-32, 34, 41-43, 45.
A cognizable section 1983 retaliation claim lies when prison officials take adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). As the Second Circuit has repeatedly cautioned, however, because such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus, courts must approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).
To prove a retaliation claim, a plaintiff must establish that (1) the conduct at issue was protected, (2) the defendants took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.).
In this instance, based upon the record now before the court, it is clear that the plaintiff can establish the first of those three required elements in light of his filing of a grievance against Corrections Officers Collins and Roberts on March 27, 2012. Dkt. No. 1-1 at 1-4. It is well established that filing complaints or grievances constitutes protected activity for purposes of a First Amendment retaliation claim. Johnson v. Eggersdorf, 8 F. App'x 140, 144 (2d Cir. 2001); Graham v. R.J. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). Turning to the second element, while there is no dispute that defendant Beaury issued plaintiff a misbehavior report on June 19, 2012, Dkt. No. 1-1 at 26, an act that may constitute adverse action, see Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) ("[The plaintiff] has sufficiently alleged . . . adverse action on the part of the defendants-the filing of false misbehavior reports[.]"), defendant denies depriving plaintiff of electricity or food during his keeplock confinement between June 22-26, 2012, and there is record evidence suggesting that defendant Beaury did not work at Great Meadow on June 22-24. Dkt. No. 38-2 at 3, 8. During his deposition, however, plaintiff testified that defendant Beaury told him, on June 22, 2012, that he had turned off plaintiff's electrical power. Dkt. No. 38-1 at 42. Accordingly, a genuine dispute of fact exists as to whether defendant Beaury was responsible for cutting off plaintiff's power or depriving him of food in June 2012. The combination of (1) filing an allegedly false misbehavior report and (2) depriving plaintiff of electricity and meals for four days may constitute adverse action for purposes of a retaliation claim. See, e.g., Dabney v. Maddock, No. 10-CV-0519, 2011 WL 7479164, at *4 (N.D.N.Y. Nov. 29, 2011) (Peebles, M.J.), report and recommendation adopted by 2012 WL 760748 (N.D.N.Y. Mar. 7, 2012) (Suddaby, J.), (finding that, in combination, allegations that the defendant harassed the plaintiff, issued him a false misbehavior report, precluded him from attending a disciplinary hearing, interfered with his access to commissary, and "interrupted the supply of electrical power to [his] cell for a period of four days" was sufficient to constitute adverse action).
Fatal to plaintiff's retaliation cause of action, however, is the absence of any record evidence from which a reasonable factfinder could conclude that there is a causal connection between plaintiff's protected activity and defendant Beaury's alleged adverse action. Defendant Beaury denies being aware that plaintiff had previously written a grievance against Corrections Officers Collins or Roberts at the time he issued plaintiff the misbehavior report. Dkt. No. 38-2 at 2. In addition, although plaintiff contends that defendant Beaury retaliated against him because he was friends with Corrections Officer Roberts' husband and that Beaury worked with Roberts' husband, Dkt. No. 38-1 at 18-21, defendant Beaury stated in his declaration in support of the pending motion that, "while [he] knew Officer Adam Roberts, Officer Heather Roberts' husband, [he] did not work with [Officer Adam Roberts] in Building 7 and [they] are not and have never been social friends." Dkt. No. 38-2 at 2-3. At plaintiff's deposition, when asked to explain the basis for his belief that defendant Beaury retaliated against him for filing a grievance against Corrections Officers Collins and Roberts, he testified as follows:
Q And you say particularly that he said to you in sum or substance, 'I'll get you for the grievance you wrote on CO [Roberts]'?
A Yes. Like I explained to you, Officer Robert's husband works in Building 7. He's the relief of Beaury.
Q Do you remember when Beaury said this to you?
A He said it - he said it as like you said, a gesture. You can throw something out to a person - you can't throw messages out or comments or statements to a person without them having a knowledge of it at that time because they not thinking about it until later on.
Q Okay.
A 'til the events occurred. So this is where all this initially - Officer Roberts I guess he wasn't man enough to, you know retaliate. So he manipulated Officer Beaury to do his dirty work.
Q How do you know that?
A I know. It happens - I have complaints here
that I will give to you later on that I will be adding down the line to redo admissions and all that. This is a common thing in Great Meadows or any other facility; all colleagues work together. That's what they say with inmates. I don't go around here - if you check my disciplinary history since I've been here, I'm not a troublemaker at all. I'm just trying to do my time. I didn't come to Great Meadows to be causing no riffraff with no officers . . . .
Q So I want to make sure I understand. Your belief that Roberts manipulated Beaury to do his dirty work is based on how things work here at Great Meadow?
A Yeah, it's how it works here at Great Meadow.
Q Okay. So you never observed them having a conversation about anything?
A I don't have to - it's a prime example . . . .
Q Do you have your complaint in front of you?
A Yes, I do.
Q Okay. Can you just look at paragraph six?
A Paragraph six.
Q Third line down it says, 'On one particular occasion Beaury said I will get you for the grievance you wrote on CO,' what we know as Roberts now. Was that one particular occasion on June 19th?
A Yes.
Q All right. And he was - your belief was that he was referring to the grievance you wrote back in March?
A Yes.
Q Why do you think that?
A Because that - like I explain to you again, Correction Officer Roberts, Ms. Roberts her husband works in Building 7 along with Beaury
. . . .
Q So when Beaury says to you on one time on . . . June 19th, 2012 that he'll get you for the grievance you wrote on CO H. Roberts, you
had only written the one in March against H. Roberts?Dkt. No. 38-1 at 18-21. This testimony reflects that plaintiff's basis for his claim is his speculative and vague belief that corrections officers at Great Meadow "work together." Id. at 18.
A Yes.
Q Okay. Got it.
A And what happened was it snowballed - it became a snowball effect after that.
Q So on June 19th, 2012 was the first time Beaury ever said anything like that to you?
A Yes, because I never had no - I explained to you, like I explained to you, I've been working in Building 7 for four years with no misbehavior reports until that happened with me writing the complaint against H. Roberts, Corrections Officer Roberts and Corrections Officer Collins.
Three months elapsed between the filing of plaintiff's grievance and defendant Beaury's alleged adverse action, and plaintiff has offered no evidence to contradict defendant's sworn statement that he was unaware of the grievance at the time he issued the misbehavior against plaintiff on June 19, 2012. In addition, defendant Beaury has offered an explanation for issuing plaintiff the misbehavior report that does not reflect retaliatory animus. Dkt. No. 38-2 at 2.
In particular, defendant Beaury described the circumstances leading up to the issuance of the misbehavior report on June 19, 2012, as follows:
On June 19, 2012 while supervising the kitchen where plaintiff was working, I received at least one phone call from one of the housing blocks inquiring whether the Kosher meal trays were supposed to have cereal on them. I questioned plaintiff whether the Kosher meal trays were supposed to have cereal and he told me no. I confirmed with the civilian cook that the Kosher meal trays were in fact, supposed to have cereal on them. I confronted plaintiff with this information and he began to yell at me and told me to stop bothering him with this 'bullshit.' Plaintiff's actions caused the other ten inmates in Building 7 to stop doing their work and watch him.Dkt. No. 38-2 at 2.
Based on all of the record evidence, I find that plaintiff's vague belief that corrections officers "work together" to retaliate against inmates is not sufficient to give rise to a genuine dispute of material fact as to whether there exists a causal connection between plaintiff's protected activity and defendant Beaury's alleged adverse activity. Accordingly, I recommend that defendants' motion be granted with respect to this claim.
It appears that plaintiff is procedurally barred from pursuing his retaliation claim to the extent it involves allegations regarding the deprivation of electricity and food between June 22-26, 2012, based on his failure to comply with the requirement to exhaust available administrative remedies before commencing suit as required under the Prison Litigation Reform Act of 1996, Pub. L. No. 104-134, 110 Stat. (1996). In light of my recommendation that plaintiff's claim be dismissed on the merits, however, I have not found it necessary to fully analyze this ground for dismissal.
D. Plaintiff's First Amendment Free Exercise Claims
In his second claim, plaintiff alleges that defendant Payne unlawfully interfered with his First Amendment right to freely exercise his chosen religion by virtue of his undue delay in processing plaintiff's request to change his religious designation. Dkt. No. 1 at 5-7. In his third cause of action, plaintiff claims that defendant Ely denied plaintiff call outs to attend religious education classes and congregate Islamic prayers. Id. at 7-9.
1. Legal Principles Governing Plaintiff's First Amendment Claims
While inmates confined within prison facilities are by no means entitled to the full gamut of rights guaranteed under the United States Constitution, the free exercise clause of the First Amendment does afford them at least some measure of constitutional protection. See Pell v. Procunier, 417 U.S. 817, 822 (1974) ("In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."). The protections afforded under the First Amendment, however, are not without limits, and the task of defining the contours of that right in a prison setting requires striking a delicate balance between the rights of inmates and the legitimate interests of prison officials tasked with maintaining prison security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987); Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003); Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990).
A plaintiff asserting a First Amendment free exercise claim must, as a threshold matter, "show . . . that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006). In evaluating this factor, the court must be wary of "'question[ing] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.'" McEachin v. McGuinnis, 357 F.3d 197, 201 (2d Cir. 2004) (quoting Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699 (1989)). Instead, a court should consider only whether the particular plaintiff has "demonstrate[d] that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." Ford, 352 F.3d at 588 (quotation marks omitted). Once a plaintiff satisfies this burden, defendants must then "bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct." Salahuddin, 467 at 275. "[T]he burden[, however,] remains with the prisoner to 'show that these penological concerns were irrational.'" Ford, 352 F.3d at 595 (quoting Fromer v. Scully, 874 F.2d 69, 74 (2d Cir. 1989)) (alteration omitted).
I acknowledge that the Second Circuit has yet to decide whether the "substantial burden" test survived the Supreme Court's decision in Emp't Div. v. Smith, 494 U.S. 872, 887 (1990). See Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014) ("It has not been decided in this Circuit whether, to state a claim under the First Amendment's Free Exercise Clause, a 'prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs.'" (quoting Salahuddin, 467 F.3d at 274-75)); Salahuddin, 467 F.3d at 275 n.5 (declining to address whether "a prisoner's First Amendment free-exercise claim is [] governed by the 'substantial burden' threshold requirement"). Because, however, the Second Circuit continues to apply the test, even when squarely faced with the question of its continued viability, I will assume a plaintiff must establish a substantial burden on his sincerely held beliefs to demonstrate a prima facie First Amendment free exercise claim. See, e.g., Holland, 758 F.3d at 221 ("[W]e need not decide the issue here, as even assuming the continued vitality of the substantial burden requirement, our precedent squarely dictates that [the plaintiff's] religious exercise was unconstitutionally burdened[.]"); Salahuddin, 467 F.3d at 274-75 ("The prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs."); accord, Smith v. Goord, 541 F. App'x 133, 134 (2d Cir. 2013); Washington v. Gonyea, 438 F. App'x 23, 26 (2d Cir. 2013); Hall v. Ekpe, 408 F. App'x 385, 388 (2d Cir. 2010).
At this juncture the court next inquires into whether a defendant's conduct, which allegedly deprives the plaintiff of his free exercise rights, is reasonably related to some legitimate penological interest. Ford, 352 F.3d at 594; see also Washington, 538 F. App'x at 26 ("Even if Defendants-Appellees substantially burdened [the Plaintiff-Appellant]'s sincerely held religious beliefs, their actions do not constitute a constitutional deprivation if they were reasonably related to legitimate penological interests." (quotation marks omitted)). To determine whether a challenged regulation or decision by prison officials is reasonable, courts must evaluate the following four factors:
The Second Circuit has held that "[a]n individualized decision to deny a prisoner the ability to engage in religious exercise is analyzed in the same ways as a prison regulation denying such exercise." Salahuddin, 467 F.3d at 274 n.4.
[(1)] [W]hether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; [(2)] whether prisoners have alternative means of exercising a burdened right; [(3)] the impact on the guards, inmates, and prison resources of accommodating the right; and [(4)] the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.Salahuddin, 467 F.3d at 274 (footnote omitted).
2. Plaintiff's Claim Against Defendant Payne
While plaintiff has alleged that he submitted his change-of-religious-designation form in late June 2012, Dkt. No. 1 at 6; Dkt. No. 38-1 at 47, there is no other record evidence to support this claim. In an attempt to buttress this claim, plaintiff has submitted two identical affidavits from a fellow inmate who was working as a Chaplain at Great Meadow at the relevant time. Dkt. No. 1-1 at 70-73. In those affidavits, however, the inmate states that he recalls plaintiff submitting two change-of-religious-designation forms - one during July 2012 and the second in August 2012. Id. at 70, 73. In addition, defendant Payne has averred that there is no record at Great Meadow of plaintiff submitting the form in June 2012. Dkt. No. 38-4. Thus, aside from plaintiff's own allegations, there is no direct record evidence to support his claim that he made his request for the first time in June.
Defendant Payne did, however, send plaintiff a memorandum on August 2, 2012, that said, "You are listed under Protestant (November 29 , 2005) and wish to change your religion to Muslim. Please fill out the form, sign it and return it to this office for processing." Dkt. No. 38-4 at 17 (emphasis in original). This memorandum suggests that, at some earlier point in time, plaintiff communicated his request to change religions to either defendant Payne directly or someone else who then advised defendant Payne regarding plaintiff's intentions. Accordingly, I find that a dispute of material fact exists as to when plaintiff first notified prison officials of his desire to change his religious designations.
The court then must turn to the question of whether the delay involved in changing his religion from Protestant to Muslim constituted a substantial burden on plaintiff's sincerely held beliefs. Plaintiff contends that the delay precluded him from participating in Ramadan and attending seven Juma prayer services. Dkt. No. 1 at 6; Dkt. No. 38-1 at 49, 51-52. The Second Circuit has said that "a substantial burden exists where the state puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (quotation marks and alterations omitted). Plaintiff's allegations in this case suggest that he was required to violate his beliefs by being precluded from participating in any Ramadan observations and seven prayer services directly as a result of the delay in the processing of his request to change religions. Defendants have offered no evidence to contradict or otherwise undermine these allegations. While courts in this circuit have concluded that missing two religious services does not pose a substantial burden on an inmate's religion, see, e.g., Lopez v. Cipolini, --- F. Supp. 3d ----, No. 14-CV-2441, 2015 WL 5732076, at *11 (S.D.N.Y. Sept. 30, 2015) (collecting cases), the alleged conduct in this case clearly resulted in more severe deprivations. Thus, if plaintiff's allegations are credited, a reasonable factfinder could conclude that his rights were substantially burdened due to the delay in processing his request.
Defendants, on the other hand, appear to contend that the next question in the analysis (assuming plaintiff filed his change-of-religious-designation form was filed in late-June 2012) is whether defendant Payne was aware that plaintiff filed the form in June 2012. Dkt. No. 38-10 at 11. While this inquiry implicates the issue of personal involvement, I find a dispute of material fact exists as to when defendant Payne learned of plaintiff's request to change his religion. While plaintiff contends he submitted a form in June 2012, Dkt. No. 1 at 6; Dkt. No. 38-1 at 47, defendant Payne averred that he "ha[s] no recollection of such a request" and there is no record of this request at Great Meadow until August 2012. Dkt. No. 38-4 at 2-3. In addition, although it is unclear precisely when, the memorandum defendant sent to plaintiff on August 2, 2012, certainly suggests that defendant Payne learned about plaintiff's request at some time before he sent it. See id. at 17 ("You are listed under Protestant (November 29 , 2005) and wish to change your religion to Muslim ." (emphasis in original)). Mindful of the court's obligation to avoid making credibility determinations at the summary judgment stage, I find that a dispute of material fact exists as to whether defendant Payne was aware that plaintiff wished to change his religion in June 2012 but waited until August to approve the request.
Finally, because defendants have offered no legitimate penological interest that would justify the alleged delay, the court is not unable to determine at this juncture whether the delay was reasonably related to any identified penological interest.
This should be distinguished from whether there is a penological interest in requiring inmates to register their religions at their facilities of confinement. In this regard, the Second Circuit has unequivocally determined that requiring inmates to register their religion serves multiple legitimate penological interests. See Jackson-Bey v. Hernandez, 115 F.3d 1091, 1096-97 (2d Cir. 1997). The issue in this case is whether defendants have offered a legitimate penological interest in delaying the processing of plaintiff's request.
Accordingly, I recommend that defendants' motion for summary judgment dismissing plaintiff's First Amendment claim asserted against defendant Payne on the merits be denied.
As discussed below in Part III.E. of this report, however, I recommend dismissal of the claim based on my finding that defendant Payne is entitled to qualified immunity from suit.
3. Plaintiff's Claim Against Defendant Ely
Plaintiff's third cause of action arises from allegations that he was unable to attend Salat religious education classes held on Saturday mornings between October 13, 2012 and November 3, 2012, due to defendant Ely's failure to distribute call-out slips to him during that period. Dkt. No. 1 at 7-8; Dkt. No. 38-1 at 52, 55. Abdulkadir Elmi, the Coordinating Chaplain and Iman for the Muslim faith at Great Meadow, confirms plaintiff's contention that call-outs were required for any Muslin inmate wishing to attend Salat classes in 2012. Dkt. No. 38-5 at 2. Call-out slips for religious classes at Great Meadow are distributed to inmates by housing unit officers on duty during the afternoon shift - either 3:00 p.m. to 11:00 p.m. or 4:00 p.m. to 12:00 a.m. - on the evening preceding the corresponding class. Dkt. No. 38-8 at 1-2; see also Dkt. No. 38-2 at 53. I take judicial notice of the fact that the Saturdays during the relevant time period fell on October 13, 2012, October 20, 2012, October 27, 2012 and November 3, 2012. The call-outs for those Salat classes would therefore have been dispersed on October 12, 2012, October 19, 2012, October 26, 2012 and November 2, 2012. According to defendant Ely, and as confirmed by his time records, he was not working on October 12, 2012 or October 19, 2012, and thus would not have been responsible for distributing call-out slips on those dates. Dkt. No. 38-3 at 2, 5, 6. The record also reflects that defendant Ely worked from approximately 11:55 p.m. on Thursday, October 25, 2012, to 6:55 a.m. on Friday, October 26, 2012, and consequently was not working on that Friday evening. Id. at 6. He worked a double shift from 11:55 p.m. on Thursday, November 1, 2012, to 3:25 p.m. on Friday November 2, 2012, and similarly was not working when call-out slips were distributed on that date. Id. Accordingly, it is clear from the record now before the court, which is uncontroverted, that defendant Ely did not work on any Friday evening during the relevant time period, when call-out slips for Saturday religious education classes would have been distributed. I note, moreover, that defendant Ely has stated he never refused to provide call-out slips to plaintiff or any other inmate at any time while it was his responsibility to do so. Id. at 3.
Defendants contend that this claim is procedurally barred based on plaintiff's failure to exhaust the available administrative remedies. Dkt. No. 38-10 at 16; Dkt. No. 38-6 at 3. Plaintiff's grievance regarding the missed call-outs, however, was ultimately granted by the facility superintendent, and thus plaintiff had no reason to appeal that decision to the DOCCS Central Office Review Committee. Dkt. No. 1-1 at 84-87.
Based upon these circumstances, no reasonable factfinder could conclude that defendant Ely unlawfully violated plaintiff's First Amendment rights by refusing to provide call-out slips to preclude plaintiff from attending religious education classes or congregate religious services. I therefore recommend that defendants' motion with respect to this claim be granted.
E. Qualified Immunity
In the event that the recommendations described above are adopted by the assigned district judge, the only claim that remains for consideration is plaintiff's First Amendment free exercise claim asserted against defendant Payne. As an alternative to dismissal on the merits, in their motion defendants have argued that defendant Payne is entitled to qualified immunity in connection with this claim. Dkt. No. 38-10 at 11-16.
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sudler v. City of N.Y., 689 F.3d 159, 174 (2d Cir. 2012). The law of qualified immunity seeks to strike a balance between "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. Government officials are shielded from liability by qualified immunity when making "reasonable mistakes" concerning the lawfulness of their conduct. Sudler, 689 F.3d at 174 (citing Saucier v. Katz, 533 U.S. 194, 206 (2001), abrogated on other grounds by Pearson, 555 U.S. 223)).
Because qualified immunity is "an immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation," Pearson, 555 U.S. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a statutory or constitutional right, and if so, whether that right "was clearly established at the time of the challenged conduct." Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (citing Reichle, 132 S. Ct. at 2093). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quotation marks and alterations omitted). "To this end, a plaintiff need not show a case 'directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.'" Terebesi, 764 F.3d at 230 (quoting al-Kidd, 131 S. Ct. at 2083). However, "[e]ven where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). This "objective reasonableness" part of the test is satisfied if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).
In this case, there is no clearly established constitutional or statutory right afforded to prison inmates to have their request to have their religious designation changed in a prison facility within two months. Indeed, inmates do not have a clearly established right to have their request to change religions processed within any specific timeframe. While the Second Circuit explored DOCCS Directive 4202, which governs the accommodation of prisoners' religious beliefs throughout New York State, in Jackson-Bey, the holding of that case is that the directive's requirement that inmates register their religion "serv[es] several legitimate penological interests." Jackson-Bey, 115 F.3d at 1096. In that decision, the court did not discuss or otherwise opine on a constitutionally reasonable period of time for prison officials to process an inmate's request to change religions. My research regarding this particular issue did not yield any results from either the Supreme Court or any circuit court regarding the issue. See Terebesi, 764 F.3d at 230 ("Even if this Court has not explicitly held a course of conduct to be unconstitutional, we may nonetheless treat the law as clearly established if decisions from this or other circuits clearly foreshadow a particular ruling on the issue." (quotation marks omitted)). Accordingly, even assuming all of plaintiff's allegations against defendant Payne are true, I recommend a finding that he is entitled to qualified immunity from suit because his conduct did not trigger a statutory or constitutional question that is settled "beyond debate." al-Kidd, 131 S. Ct. at 2083.
IV. SUMMARY AND RECOMMENDATION
Careful consideration of the record now before the court, and without the benefit of a response from the plaintiff, confirms there are no genuine disputes of material fact for trial with respect to plaintiff's retaliation claim asserted against defendant Beaury or his free exercise claim asserted against defendant Ely. In addition, although disputes of material fact exist with respect to plaintiff's claim asserted against defendant Payne, even assuming plaintiff's allegations are true, that individual is entitled to qualified immunity from suit. It is therefore hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 38) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: February 17, 2016
Syracuse, New York