Opinion
Civil Action No. 9:13-CV-1354 (LEK/DEP)
02-17-2017
JAY H. MORSE, Plaintiff, v. RONALD MALLERNEE and DOUGLAS SPRINGER, Defendants.
APPEARANCES: FOR PLAINTIFF: JAY H. MORSE, Pro Se 12-B-1199 Riverview Correctional Facility P.O. Box 247 Ogdensburg, NY 13669 FOR DEFENDANT MALLERNEE: HON. ERIC T. SCHNEIDERMAN New York State Attorney General State of New York The Capitol Albany, NY 12224 FOR DEFENDANT SPRINGER: HON. ROBERT G. BEHNKE Broome County Attorney Broome County Office Bldg. P.O. Box 1766 16 Hawley Street Binghamton, NY 13902 OF COUNSEL: MICHAEL G. McCARTIN, ESQ. MARK G. MITCHELL, ESQ. Assistant Attorneys General LEIA D. SCHMIDT, ESQ. Assistant County Attorney
APPEARANCES: FOR PLAINTIFF: JAY H. MORSE, Pro Se
12-B-1199
Riverview Correctional Facility
P.O. Box 247
Ogdensburg, NY 13669 FOR DEFENDANT MALLERNEE: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
State of New York
The Capitol
Albany, NY 12224 FOR DEFENDANT SPRINGER: HON. ROBERT G. BEHNKE
Broome County Attorney
Broome County Office Bldg.
P.O. Box 1766
16 Hawley Street
Binghamton, NY 13902 OF COUNSEL: MICHAEL G. McCARTIN, ESQ.
MARK G. MITCHELL, ESQ.
Assistant Attorneys General LEIA D. SCHMIDT, ESQ.
Assistant County Attorney DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by pro se plaintiff Jay H. Morse, who is currently a New York State prison inmate, against a corrections officer employed by the New York State Department of Corrections and Community Supervision ("DOCCS") and a local jail official. In his complaint, Morse alleges that defendants violated his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., when one of them forcibly removed a religious necklace from plaintiff's person during his transfer of custody between local authorities and the DOCCS.
Currently pending before the court are independent motions brought by the two defendants, both requesting the entry of summary judgment dismissing plaintiff's claims on a variety of grounds, including lack of personal involvement, qualified immunity, and mootness. For the reasons set forth below, I recommend that defendants' motions be granted. I. BACKGROUND
In light of the procedural posture of this 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 currently a New York State prison inmate being held in the custody of the DOCCS, and designated to the Riverview Correctional Facility ("RCF"), located in Ogdensburg, New York. See generally Dkt. No. 10. Plaintiff's claims, however, stem from events that occurred during the course of his transfer from the Broome County Sheriff's Correctional Facility ("BCSCF") to the Elmira Correctional Facility ("ECF"), the latter of which is a prison operated by the DOCCS. Dkt. No. 56-2 at 26-30.
Since 2003, plaintiff has been a practicing Roman Catholic. Dkt. No. 56-2 at 66. Just before her death in 2008, plaintiff's mother gave him a stainless steel, one-and-one-half inch crucifix on a metal chain that measured approximately twenty inches. Id. at 26-27, 30-31. Plaintiff prayed with the crucifix during his daily prayers, and holding it made him feel closer to his god. Id. at 29, 40. The crucifix also had "sentimental value" and "helped [him] remember [his] mother." Id. Before 2008, plaintiff prayed with rosary beads. Id. at 47.
In October 2011, plaintiff was incarcerated in the BCSCF awaiting the disposition of a pending criminal forgery charge. Dkt. No. 56-2 at 7. After plaintiff entered a guilty plea and was sentenced, arrangements were made to transfer him into DOCCS custody to begin serving his prison sentence. Id. at 27, 33-34. Plaintiff was transported from the BCSCF to the ECF on April 23, 2012, by two BCSCF corrections officers, including defendant Douglas C. Springer. Id. at 33, 108-110; Dkt. No. 55-3 at 2. At the time, defendant Springer's duties included transporting inmates in a variety of settings, including to outside medical appointments, court proceedings, mental health facilities, rehabilitation centers, and other correctional facilities, including the ECF. Dkt. No. 55-3 at 1-2.
Before transporting plaintiff, defendant Springer suggested to Morse that he remove and place the crucifix that he was wearing around his neck in his property bag to be mailed to his relatives. Dkt. No. 56-2 at 45-46, 104. At the time of the transfer, it was defendant Springer's understanding that the DOCCS did not allow inmates being transferred into the ECF for intake to wear chains, including those with religious items attached. Dkt. No. 55-3 at 2. This belief was shared by Mark W. Smolinski, the jail administrator at the BCSCF. Dkt. No. 55-4 at 1. The record evidence reveals, however, that the BCSCF Inmate Handbook stated that, if an inmate is "sentenced to a New York State Correctional Facility, [he] will . . . be allowed to take . . . [r]eligious medals - [o]n chains, which do not exceed $50.00 in value, have no stone, and do not exceed 2" in diameter." Dkt. No. 55-5 at 5; see also id. at 21.
Upon his arrival at the ECF, defendant Springer observed that plaintiff was still wearing the crucifix necklace underneath his shirt. Dkt. No. 55-3 at 2; Dkt. No. 56-2 at 110. Defendant Springer then confiscated the crucifix and destroyed it. Dkt. No. 55-5 at 2; Dkt. No. 56-2 at 28-29. After plaintiff began to protest, defendant Ronald Mallernee, a corrections officer employed by the DOCCS and working at the ECF, approached the two and inquired regarding the apparent disagreement between plaintiff and defendant Springer. Dkt. No. 56-2 at 28, 30. Plaintiff and defendant Mallernee had a brief verbal exchange during which defendant Mallernee told plaintiff that he "[didn't] care" whether plaintiff was permitted to wear the necklace and that defendant Springer's decision to confiscate it would stand. Id. at 31-32. The encounter with defendant Mallernee was brief, lasting "[m]aybe two minutes." Id. at 33, 111.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on October 31, 2013. Dkt. No. 1. Plaintiff's original complaint named eight individuals as defendants, including several DOCCS employees, the Broome County Clerk, and members of the Broome County Sheriff's Department. Id. at 2. On January 6, 2014, Senior District Judge Lawrence E. Kahn issued a decision and order, pursuant to 28 U.S.C. §§ 1915(e), 1915A, granting plaintiff leave to proceed in forma pauperis and dismissing his complaint, with leave to amend, for failure to state a claim upon which relief may be granted. Dkt. No. 6.
Plaintiff availed himself of the opportunity to replead, filing an amended complaint on January 21, 2014. Dkt. No. 7. By decision and order dated July 8, 2014, Judge Kahn dismissed all of the claims set forth in plaintiff's amended complaint with the exception of the First Amendment and RLUIPA claims asserted against defendants Springer and Mallernee. Dkt. No. 9. Judge Kahn also directed the clerk of the court to docket a copy of the original complaint, together with the amended complaint, as plaintiff's second amended complaint ("SAC"), which is now the operative pleading. Id. at 4 n.7.
Following service of the summons and SAC, defendant Springer and defendant Mallernee separately moved to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. Nos. 27, 36. On August 17, 2015, I issued a report to Judge Kahn recommending that both motions be denied. Dkt. No. 43. The report and recommendation was approved and adopted in its entirety by Judge Kahn on September 29, 2015. Dkt. No. 47.
On June 30, 2016, defendants Springer and Mallernee each filed a motion for summary judgment seeking dismissal of plaintiff's claims both on the merits and based upon qualified immunity. Dkt. Nos. 55, 56. Although plaintiff filed a response on or about August 22, 2016, it is not clear whether the response was intended to address both defendants' motions or just the motion filed by defendant Springer. Dkt. No. 62. Defendant Springer has since submitted a short reply in further support of his motion. Dkt. No. 63. Defendants' motions, which are now fully briefed, have 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).
Mindful of my obligation to extend special solicitude to pro se litigants, I have assumed that plaintiff intended his response to respond to both defendants' motions.
III. DISCUSSION
A. 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").
B. Plaintiff's First Amendment Free Exercise Claim
1. Defendant Mallernee
Among the grounds advanced by defendant Mallernee for seeking dismissal of plaintiff's First Amendment claim asserted against him is lack of personal involvement. Dkt. No. 56-4 at 10-12. In particular, defendant Mallernee argues that no reasonable factfinder could conclude that he was personally involved in the confiscation of plaintiff's crucifix for purposes of section 1983. Id.
"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable under section 1983 for his actions. See Iqbal, 556 U.S. at 683 ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).
All unreported cases cited to in this report have been appended for the convenience of the pro se plaintiff.
The evidence in the record now before the court reveals that plaintiff's crucifix was removed and confiscated by defendant Springer before defendant Mallernee became involved in the incident. Dkt. No. 56-2 at 28. When asked at his deposition about defendant Mallernee's involvement, plaintiff testified, "I don't think [defendant Mallernee] had as much of an involvement in the situation now that I can think back about it with a clearer head." Dkt. No. 56-2 at 77; see also id. at 111 ("Defendant Mallernee's interaction with [me] was very brief. Most of [the incident involved] defendant Springer."). Plaintiff also stated that he did not believe defendant Mallernee harmed him or intended to deprive him of any rights. Id. at 75. Indeed, at the time of the incident, it did not appear to plaintiff that defendant Mallernee ever saw the crucifix or had a clear understanding of what item was confiscated by defendant Springer. Id. at 28-30, 43, 58. Moreover, plaintiff conceded that defendant Mallernee did not direct defendant Springer to confiscate the crucifix or to destroy it. Id. at 42-43, 45.
It appears that plaintiff's claim against defendant Mallernee centers upon his failure to investigate the matter once he approached plaintiff and defendant Springer. Such a failure, however, does not give rise to liability and is insufficient to establish a defendant's personal involvement in an underlying incident. See, e.g., Jordan v. Fischer, 773 F. Supp. 2d 255, 279 (N.D.N.Y. Feb. 17, 2011) (Sharpe, J., adopting report and recommendation by Baxter, M.J.) ("[A] defendant's failure to properly investigate a grievance does not rise to the level of either personal involvement in the assault, nor does it state a separate constitutional claim."); Alster v. Goord, No. 05-CV-10883, 2008 WL 506406, at *4 (S.D..Y. Feb. 26, 2008) ("[The defendants] allegedly passed the buck by deferring to others when [the plaintiff]'s complaints came to them and otherwise failed to stop unlawful acts. . . . These allegations. . . do not sufficiently allege personal involvement." (quotation marks omitted)). Accordingly, I recommend defendant Mallernee's motion be granted with respect to plaintiff's First Amendment claims asserted against him.
2. Defendant Springer
Among the grounds upon which defendant Springer relies in requesting dismissal of plaintiff's First Amendment claim asserted against him is qualified immunity. Dkt. No. 55-6 at 18-20. "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). "[E]ven where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' [however,] 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).
As noted above, "[a] clearly established right is one that is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'" Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle, 132 S. Ct. at 2093); accord, al-Kidd, 131 S. Ct. at 2083. The Supreme Court has recently "reiterate[d] the longstanding principle that clearly established law should not be defined at a high level of generality, . . . but must be particularized to the facts of the case." White v. Pauly, 137 S. Ct. 548, 551 (2017) (quotation marks and citations omitted); see also Mullenix, 136 S. Ct. at 308.
With these principles in mind, I have analyzed defendant Springer's qualified immunity defense in this case by asking whether prison inmates had a clearly established right to wear a small metal crucifix on a metal chain during their transfer between two prison facilities on April 23, 2012 - the date of the incident in this matter. Although there is ample case law that reflects incarcerated individuals have a First Amendment right to possess some religious artifacts subject to legitimate penological interests, see, e.g., Hudson v. Palmer, 468 U.S. 517, 547 n.13 (1984) (Stevens, J., concurring in part and dissenting in part), in my view, that legal principle is too general and does not provide corrections officers with a "fair and clear warning" that requiring an inmate to remove his necklace, comprised of a metal chain and small crucifix, during the transfer of the inmate from one facility to another and prior to entering intake at the new facility - conditions under which security and safety concerns for both inmates and corrections officers are heightened for a variety of obvious and non-obvious reasons - would have violated the inmate's First Amendment right to free exercise. See, e.g., Davila v. Marshall, 649 F. App'x 977, 982 (11th Cir. 2016) (granting qualified immunity to the defendants and noting that, "[w]hile a case need not be on all fours, with materially identical facts in order to preclude qualified immunity, it does need to give the officials reasonable warning that the conduct at issue violated constitutional rights"). Moreover, while I am mindful that the Second Circuit has said that a "right" for purposes of qualified immunity may become "clearly established" "so long as preexisting law clearly foreshadows a particular ruling on the issue," Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2014), I have found no binding authority from which reasonable officials in defendant Springer's position should have divined an inmate's right to wear a small metal crucifix around his neck on a metal chain during the transfer from one correctional facility to another. Accordingly, I recommend defendant Springer be granted qualified immunity from suit and plaintiff's First Amendment claim asserted against him be dismissed.
C. Plaintiff's RLUIPA Claim
There is no cognizable private right of action under the RLUIPA against state officers sued in their individual capacities, and the RULIPA does not allow for the award of monetary damages against state officers sued in their official capacities. Washington v. Gonyea, 731 F.3d 143, 144 (2d Cir. 2013) (citing Sossaman v. Tex., 131 S. Ct. 1651, 1656 (2011)); accord, Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014) ("RLUIPA does not authorize claims for monetary damages against state officers in either their official or individual capacities."); Williams v. Leonard, No. 11-CV-1158, 2015 WL 3544879, at *1 (N.D.N.Y. June 4, 2015) (McAvoy, J.) ("[T]o the extent that Plaintiff seeks monetary damages against the Defendants in their individual or official capacities under the RLUIPA, such damages are not available."). Plaintiff is therefore limited to injunctive and declaratory relief against the defendants in their official capacities, should he prevail on his RLUIPA claim. Dkt. No. 10 at 8.
The record in this case reveals that plaintiff was transferred out of the ECF and into the RCF shortly after his intake into DOCCS custody. Dkt. No. 56-2 at 5. In addition, none of plaintiff's claims in this case involve any incidents that occurred at the RCF. See id. at 26-27, 33 (plaintiff testifying at his deposition that this case is about the confiscation and destruction of the crucifix necklace on April 23, 2012, at ECF). It is well established that claims for declaratory and injunctive relief are rendered moot following an inmate's transfer from the facility at which the deprivations complained of occurred into a different prison. Sallahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). Accordingly, I recommend that plaintiff's RLUIPA claims asserted against defendants Springer and Mallernee be dismissed as moot.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's remaining claims in this action are asserted under the First Amendment's Free Exercise Clause and the RLUIPA against defendant Springer, a corrections officer employed at the BCSCF, and defendant Mallernee, a DOCCS employee stationed at the ECF. Both defendants have moved for the entry of summary judgment dismissing plaintiff's claims on a variety of grounds. In light of the absence of any record evidence from which a reasonable factfinder could conclude that defendant Mallernee was personally involved in the alleged deprivations, plaintiff's First Amendment claims asserted against that individual are subject to dismissal. With respect to defendant Springer, even assuming the incident on April 23, 2012, at the ECF occurred exactly as plaintiff contends, defendant Springer did not violate one of plaintiff's clearly established rights and, therefore, is entitled to qualified immunity from suit. Lastly, in light of plaintiff's transfer from ECF to RCF, his RLUIPA claims seeking declaratory and injunctive relief are moot. Accordingly, it is hereby respectfully
RECOMMENDED that the summary judgment motions filed by defendants Springer and Mallernee, Dkt. Nos. 55, 56, be GRANTED, and that plaintiff's second amended complaint in this action be DISMISSED in all respects.
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).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
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. Dated: February 17, 2017
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge