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finding that the plaintiff's allegations insufficient where the plaintiff alleged, without more, that Bellamy was personally involved because her signature was on the official record of the CORC decision
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O2-CV-336S(F).
May 25, 2004
SEUNARINE PERSAD, TAHARQA RAMSES, And ABDUL-WALI KASIB SIDDIQ, Attica Correctional Facility, Attica, New York, Plaintiffs Pro Se.
ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, MICHAEL A. SIRAGUSA, ESQ., ASSISTANT ATTORNEY GENERAL, OF COUNSEL, Buffalo, New York, Attorney for Defendant
REPORT and RECOMMENDATION
JURISDICTION
This matter was referred to the undersigned by the Hon. William M. Skretny on September 20, 2002 for determination of all pretrial matters pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B), including all dispositive and non-dispositive motions. It is presently before the court on the Defendant's motion for summary judgment filed October 30, 2003 (Docket No. 27).
BACKGROUND
Plaintiffs commenced this action on May 6, 2002 pursuant to Title 42 U.S.C. § 1983. Specifically, they allege that the Defendants violated their First Amendment right to the free exercise of religion and the Establishment Clause of the First Amendment to the Constitution through the policy of permitting religious programming only with facility-approved supervisors. Plaintiffs, Muslim inmates, allege that they were not allowed to participate in the weekly Juma service on September 28, 2001 because the Muslim chaplain was on vacation, and the Defendants would not allow them to conduct the service with an inmate imam (Docket No. 1).Plaintiffs were granted in forma pauperis status (Docket No. 5, 8), but their request for assigned counsel was denied on July 15, 2002 (Docket No. 10). Defendants filed Answers to the Complaint on September 13, 2002, asserting, inter alia, that their conduct fell within their discretionary authority, and that they did not violate any clearly established statutory or constitutional rights of the Plaintiffs (Docket Nos. 15-17). All three Defendants moved for summary judgment on October 30, 2003, arguing that Plaintiffs' First Amendment rights were not violated by the prison policy of only permitting facility-approved supervisors for religious programming (Docket No. 27). Additionally, Defendant Bellamy argued that the claims against her should be dismissed because she had no personal involvement in the decision. Plaintiffs filed a response to the motion on April 13, 2004 (Docket Nos. 37-38). Oral argument was deemed unnecessary. For the following reasons, Defendant's motion for summary judgment should be GRANTED.
FACTS
This factual statement is taken from the pleadings and papers filed in the action.
In support of their motion for summary judgment, Defendants offered declarations (Docket Nos. 30-32) and Plaintiffs' responses to interrogatories (Docket No. 29). Defendant Karen Bellamy, Assistant Director of the Inmate Grievance Program for the New York State Department of Correctional Services ("DOCS"), stated that she is the custodian of the records of the Central Office Review Committee ("CORC"), which reviews inmate grievances at the final stage of the three-step appeal process (Docket No. 30, "Bellamy Decl." ¶ 1). Ms. Bellamy stated that Plaintiff Persad filed a grievance with respect to the cancellation of inmate Juma services on September 28, 2001, he appealed it through CORC, and CORC issued its decision denying the grievance on December 20, 2001. Id. at ¶ 8, Exh. A. Her signature appears on the CORC decision not as a decision-maker, but only in an administrative capacity to certify the CORC decision (Docket No. 30, ¶ 9).
Defendant Conway stated that at the time of the events giving rise to Plaintiffs' lawsuit, he was the First Deputy Superintendent of the Attica Correctional Facility ("ACF"). Inmate Juma services were cancelled on September 28, 2001, because Muslim Chaplain Zakaria Gasmalla was on an extended vacation (Docket No. 31, "Conway Decl." ¶ 6). Defendant Conway stated that "Attica's inmate population requires close supervision of all activities in order to maintain the safety and security of both the staff and inmates." Id. at ¶ 4. Inmate-led and supervised religious programming creates an unnecessary risk of gang organization and other dangerous and violent activity. Id. Persad's appeal of this decision was denied, based on DOCS directives and because of both security concerns and the adequacy of alternate supervision for the remainder of Chaplain Gasmalla's vacation. Id. at ¶ 6.
Defendant Savage is the Deputy Superintendent of Programs at ACF. He stated that since 1999, the ACF has maintained a policy that all religious programs and services must be supervised by either the facility chaplain or an approved volunteer. In accordance with DOCS policy, there are no inmate facilitators for religious programming at Attica (Docket No. 32, "Savage Decl." ¶ 5). This policy is consistently enforced for all religious sects and was enacted for security reasons, not in retaliation for a previous lawsuit. Id. at ¶ 9.
Defendant Savage further stated the during his vacation, Chaplain Gasmalla arranged for substitute supervision for the Juma services. However, he was unable to obtain coverage for the September 28, 2001 service, and the service was cancelled. Id. at ¶ 12. Additionally, weekly Saturday Islamic study was arranged during that time period with a registered volunteer. Id. at ¶ 13. On September 28, 2001, inmates were free to exercise their religion individually in their cells. Id. at ¶ 14.
In response to the motion, Plaintiffs allege that Juma services were cancelled on September 28, 2001, and on October 12, 2001 (Docket No. 38 ¶ 2). They state that, in the past, when Imam Gasmalla was not present, inmate imams were allowed to supervise the service, and there has never been a case of gang activity or other unlawful activities. Id. at ¶ 4. Plaintiffs allege that the policy not to allow inmate-led services was adopted in retaliation for a lawsuit filed by another inmate. Id. at ¶ 5. This policy, they argue, results in the violation of Plaintiffs' right to attend congregate services and freely practice their religion. Id. at ¶ 10.
DISCUSSION
1. Summary Judgment Standard
The standard of review on a motion for summary judgment is well established. Summary judgment will be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 331 (1986). The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). The movant may discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case on an issue on which the non-movant has the burden of proof. See Celotex, supra, at 323.
If the moving party meets its burden of demonstrating the absence of any genuine issue of material fact, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Rattner v. Netburn, 930 F.3d 204, 209 (2d Cir. 1991). The nonmoving party may not rest upon unsubstantiated allegations, conclusory assertions or mere denials, but must set forth and establish specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). A metaphysical or other whimsical doubt concerning a material fact does not establish a genuine issue requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584 (1986). If there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. Chambers, supra, at 37.
2. Right to Free Exercise of Religion
It is well settled under the First Amendment's free exercise clause that inmates are guaranteed the right to participate in congregate religious services. See, e.g., Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). However, this right is not without restriction. Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.), cert. denied, 498 U.S. 951 (1990). Balanced against the constitutional protections afforded prison inmates, including the right to the free exercise of religion, are the interests of maintaining prison security and discipline by officials charged with the administration of the penal system. Pell v. Procunier, 417 U.S. 817, 822 (1974). The Supreme Court has accorded great deference to the determinations of prison officials and fashioned "a lesser standard of scrutiny . . . in determining the constitutionality of the prison rules." Turner v. Safley, 482 U.S. 78, 81 (1987); see also O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). The standard is one of reasonableness, taking into account whether the particular regulation affecting some constitutional right asserted by a prisoner is "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89; Shabazz, 482 U.S. at 349; Benjamin v. Coughlin, 905 F.2d at 574. In determining the reasonableness of a particular policy or regulation, courts consider the following factors: (1) whether there is a rational relationship between the regulation and the legitimate government interests asserted; (2) whether the inmates have alternative means to exercise the right; (3) the impact that accommodation of the right will have on the prison system; and (4) whether ready alternatives exist which accommodate the right and satisfy the governmental interest. Turner, 482 U.S. at 89-90; Fromer v. Scully, 874 F.2d 69, 72 (2d Cir. 1989). Prison administrators are "accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979).
Here, the facility policy of allowing religious programming only under the supervision of facility approved chaplains or volunteers is governed by DOCS directive 4202. That directive provides that "inmates shall not provide any leadership role for the worshiping inmate community . . ." (Docket No. 32, Exh. A). The administration of ACF, a maximum security facility, has determined that inmate religious programming facilitators are not appropriate in this setting. Defendants have stated that unsupervised religious services could be a pretext for subversive or dangerous activity. Savage Decl. ¶ 6. Additionally, the authority of prison officials can be undermined when an inmate is placed in a position of power over other inmates. Id. That no violence has resulted from inmate-led services in the past is irrelevant to the application of the policy in this instance. Hadi v. Horn, 830 F.2d 779, 785 (7th Cir. 1987) ("prison officials need not wait for a problem to arise before taking steps to minimize security risks"). In Benjamin, Rastafarian inmates alleged that the denial of their right to congregate religious services without a sponsored chaplain violated the First Amendment. Upholding the restriction, the court recognized the legitimate penological interest in requiring a sponsored chaplain.
The sponsor requirement is said to be intended to ensure that the meeting is convened for religious purposes and not to hold kangaroo courts, foster extortion, or provide a venue for the dissemination of conspiratorial information. As well, the use of sponsors is thought to minimize conflicts among inmates as to the nature and content of the service.Benjamin v. Coughlin, 905 F.2d at 577. Accordingly, the requirement that religious programming be supervised by facility chaplains or facility-sponsored volunteers is rationally related to the penological interest in safety and security of the facility. Savage Declaration, ¶¶ 5-6.
Despite the cancellation of one (or even two) Juma service, Plaintiffs and other Muslim inmates were free to practice their religion. Defendants Conway and Savage verified that the cancellation of the Juma service on September 28, 2001 was an isolated incident, after a good faith effort was made to obtain a substitute chaplain. Conway Decl. ¶¶ 6-7; Savage Decl. ¶¶ 11-12. As such, the cancellation of the service was neither a systemic problem nor a policy violation. Alternate arrangements were made to provide supervision for the Juma services during the remainder of Chaplain Gasmalla's vacation. Specifically, prison officials called upon chaplains from other facilities to supervise the services, so as to provide Plaintiffs and other Muslim inmates with religious programming. Savage Decl. ¶ 12. Plaintiffs admit in their responses to interrogatories that they conducted individual prayer services when they were unable to attend Juma services. Docket No. 29, Exh. B, ¶ 2; Exh. C, ¶ 2. Additionally, Islamic study sessions were available during the time period in question. Savage Decl. ¶ 13.
Even if, as Plaintiffs allege, two Juma services were cancelled, this fact would not affect the analysis under Turner, and would not preclude summary judgment in Defendants' favor.
Accordingly, the ACF policy of only permitting facility approved supervisors for religious programming is rationally related to legitimate penological interests and the inmates have alternative means to exercise their right to the free exercise of religion in the absence of a state approved supervisor. Additionally, it has been shown that to allow inmate supervision of religious programming would have a negative impact on the prison system and would not satisfy the governmental interest in institutional safety and security. Accordingly, summary judgment should be GRANTED on Plaintiffs' free exercise claim. The policy at issue satisfies the Turner factors, and is not an unconstitutional infringement on the Plaintiffs' First Amendment right to the free exercise of religion. Turner, 482 U.S. at 89-90.
3. Establishment Clause
In addition to their free exercise claim, Plaintiffs also assert that the facility has violated the Establishment Clause by "sponsoring State controlled religious practices through its policy of only permitting religious service if an employee chaplain is present to supervise." (Docket No. 38, p. 3). The Establishment Clause guarantees that the government may not "coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion." Muhammad v. City of New York Dep't of Corrections, 904 F.Supp. 161, 197 (S.D.N.Y. 1995). Thus, the government must remain neutral by neither encouraging nor discouraging religious practice. Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 839-840 (1995). A government practice satisfies the Establishment Clause, if it (1) has a secular purpose; (2) neither advances nor inhibits religion; and (3) avoids excessive entanglement between the state and religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, reh'g denied, 404 U.S. 876 (1971). However, in the prison setting, this test is tempered by an inmate's free exercise rights and legitimate penological interests. See Warburton v. Underwood, 2 F.Supp.2d 306, 316 (W.D.N.Y. 1998).
Plaintiffs have failed to produce any evidence in support of their assertion that the ACF policy violates the Establishment Clause. In contrast, Defendants have shown that the policy is applied consistently to all religious sects at the facility, and does not preclude the practice of Islam. Savage Decl. ¶ 9. Defendants have shown that Muslim inmates are provided the opportunity to participate in study groups and to practice their faith individually. Moreover, the policy advances the secular interest of maintaining safety and security in a maximum security facility. Accordingly, Plaintiffs' Establishment Clause claim lacks merit and summary judgment should be GRANTED as to this claim.
4. Retaliation
Plaintiffs also allege that the requirement of facility-sponsored supervision of religious programming was adopted in response to the filing of a lawsuit by another inmate. In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing 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); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001). If the plaintiff sustains this burden, the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287. If taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
When an inmate alleges a claim of retaliation, courts are instructed to examine the claim with care. Prisoner's retaliation claims are "prone to abuse," and the Second Circuit insists on a higher level of detail in pleading. See Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987). "Mere conclusory allegations" are insufficient to withstand a motion for summary judgment, once the moving party has sustained its burden. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
Here, Plaintiffs have failed to satisfy their burden of proving a prima facie case of retaliation. Even assuming that the Plaintiffs can assert retaliatory conduct with respect to the lawsuit of another inmate, the Defendants have shown that the policy at issue was consistently applied to all religious groups in the interest of facility safety and security. Plaintiffs have set forth no proof that the policy was directed at them in a malicious or punitive manner or in response to a previous lawsuit. Summary judgment should be GRANTED with respect to the Plaintiffs' retaliation claim.
5. Qualified Immunity
Defendants also argue that they are entitled to qualified immunity. Qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly, governmental officials sued for damages "are entitled to qualified immunity if (1) their actions did not violate clearly established law, or (2) it was objectively reasonable for them to believe that their actions did not violate such law." Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999) (citing Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996)). The law of qualified immunity seeks to strike a balance between overexposure by government officials to suits for violations based upon abstract rights and an unduly narrow view which would insulate them from liability in connection with virtually all discretionary decisions. Locurto v. Safir, 264 F.3d 154, 162-63 (2d Cir. 2001); Warren, 196 F.3d at 332.
Qualified immunity analysis involves a three step inquiry. Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d Cir. 2003). As a threshold matter it must first be determined whether, based upon the facts alleged, plaintiff has facially established a constitutional violation. Id. If the answer to this inquiry is in the affirmative, the court must then turn its focus to whether the right in issue was clearly established at the time of the alleged violation. Id. (citing Saucier v. Katz, 533 U.S. 194, 201-02 (2001)); see also Poe v. Leonard, 282 F.3d 123, 132-33 (2d Cir. 2002). A right is considered "clearly established" only "when the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Finally, if the plaintiff had a clearly established, constitutionally protected right that was violated, he or she must demonstrate that it was not objectively reasonable for the defendant to believe that his action did not violate such law. Harhay, 323 F.3d at 211; Poe, 282 F.3d at 133.
Here, should the District Court disagree with the above analysis and determine that Defendants are not entitled to summary judgment on the merits of Plaintiffs' claims, Defendants have nonetheless established that they are entitled to qualified immunity. Under Saucier, courts are to determine the merits of the underlying constitutional claims before reaching the qualified immunity defense. Saucier v. Katz, 533 U.S. at 201. While it was clearly established at the time of the alleged violation that inmates are entitled to participate in congregate religious services, the Second Circuit had determined that "missing one religious service does not constitute a substantial burden on an inmate's right to the free exercise of his religion." Gill v. DeFrank, 2001 WL 388057, *2 (2d Cir. April 16, 2001); see also Troy v. Kuhlman, 1999 WL 825622 (S.D.N.Y. October 15, 1999). Even crediting Plaintiffs' allegation that two Juma services were cancelled, there was no clear statement of law from the Supreme Court or Second Circuit that the cancellation of two services would result in a constitutional violation. Moreover, to conclude that even the cancellation of two services because of the lack of an approved leader violated Plaintiffs' First Amendment rights is negated by the holding in Benjamin v. Coughlin, in which the court specifically rejected such a claim. Accordingly, a reasonable prison official could not have understood that his conduct, in cancelling services and not allowing the services to proceed with an inmate imam, was an unlawful act. Summary judgment should be GRANTED on the basis of qualified immunity.
6. Personal Liability of Defendant Bellamy
Finally, Defendant Bellamy contends that she had no personal involvement in the appeal upholding the decision not to allow an inmate imam to lead Juma services. Bellamy has stated that she is not a voting member of the CORC, and merely is the custodian of the records. Defendant Bellamy also asserted that her signature appeared on the CORC decision in an administrative capacity only. Bellamy Decl. ¶¶ 1, 6, 7, 9.
A state employee cannot be held liable under 42 U.S.C. § 1983 without a showing of personal involvement in the violation of the plaintiff's constitutional rights. Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1064 (2d Cir. 1989) (quoting Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033 (1974)). To establish personal involvement, the plaintiff can show that the defendant (1) directly participated in the constitutional violation, (2) failed to remedy a known violation, (3) created an unconstitutional policy or custom, or (4) was grossly negligent in the management of subordinates. Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
Here, Defendant Bellamy has established that she was not personally involved in the alleged violation of Plaintiffs' First Amendment rights. Plaintiffs rely on the mere allegation that Bellamy affirmed the decisions of the other Defendants, as evidenced by her signature on the official record of the CORC decision. This conclusory allegation will not suffice to defeat the motion for summary judgment. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). Summary judgment should be GRANTED in favor of Defendant Bellamy on the basis of lack of personal involvement.
CONCLUSION
The Defendant's motion for summary judgment should be GRANTED (Docket No. 27) and the complaint dismissed.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant.
SO ORDERED.