Vann v. Fischer

Full title: KOURIOCKEIN VANN, Plaintiff, v. BRIAN FISCHER et al., Defendants.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jun 20, 2012

11 Civ. 1958 (JPO) (S.D.N.Y. Jun. 20, 2012)

Opinion

11 Civ. 1958 (JPO)

06-20-2012

KOURIOCKEIN VANN, Plaintiff, v. BRIAN FISCHER et al., Defendants.

J. PAUL OETKEN, District Judge

MEMORANDUM AND ORDER

:

Pro se Plaintiff Kouriockein Vann ("Plaintiff") is a prisoner being held by the New York State Department of Corrections and Community Supervision ("DOCCS"). He filed his initial complaint in this case on March 17, 2011. (Dkt. No. 1.) On August 30, 2011, he filed an amended complaint. (Dkt. No. 29 ("Compl.").) In it, Plaintiff alleges that various prison officials have violated his civil rights, including under the First and Fourteenth Amendments to the United States Constitution and under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. He further alleges that certain defendants sexually assaulted him, destroyed items of his property, improperly searched his cell, and retaliated against him for complaining about violations of his rights. In addition, the Court construes the amended complaint as raising claims under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq.

On February 10, 2012, the Attorney General of the State of New York moved, on behalf of all defendants, to dismiss the amended complaint. (Dkt. No. 42.) The motion seeks dismissal of certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted and of other claims pursuant to Rule 12(b)(3) for improper venue. For the reasons stated below, that motion to dismiss is granted in part and denied in part. I. Background ¹

1 Unless otherwise stated, the facts in this background section are drawn from Plaintiff's amended complaint and the documents attached thereto. See Harris v. New York State Dep't of Health, 202 F. Supp. 2d 143, 147 (S.D.N.Y. 2002) (explaining that "a court may consider documents attached to the complaint as exhibits, or incorporated by reference, as well as any documents that are integral to, or explicitly referenced in, the pleading").

A. Parties and Locations of Alleged Events

Plaintiff asserts that he is a practitioner of the Santeria religion (Compl. at 4)² and that one tenet—the "main tenet"—of his religion is the wearing of Santeria beads (id. at 6, 12).

2 Page citations for the amended complaint refer to the pages as numbered one through twenty-two at docket entry number 29.

Plaintiff's amended complaint makes allegations concerning his incarceration at three different facilities: Sing Sing Correctional Facility ("Sing Sing"), Downstate Correctional Facility ("Downstate"), and Attica Correctional Facility ("Attica"). (Id. at 5.)

All of the defendants are together referred to herein as "Defendants."

Defendants identified in the amended complaint as connected to or associated with Sing Sing are Hasan Mumin and Superintendant Philip Heath.³ Mumin and Heath are also referred to herein as the "Sing Sing Defendants," and the claims against them are referred to as the "Sing Sing Claims."

3 These defendants are named in the amended complaint as "Muslim Imam at Sing-Sing - Hassan" and "Sing-Sing Corr. Fac. Superintend - P. Heath." (Compl. at 2.) The text of this opinion refers to each defendant as named in Defendants' motion papers; however, differences in spelling between names used in this opinion and those used in Plaintiff's complaints do not indicate reference to any person other than the Defendants whom Plaintiff has served in this action.

Defendants identified in the amended complaint as connected to or associated with Downstate are Mitchell, John Zupan, Alfred Twyman, and Ada Perez.⁴ Zupan, Twyman, and Perez (but not Mitchell) are also referred to herein as the "Downstate Defendants," and the claims against them are referred to as the "Downstate Claims."

4 These defendants are named in the amended complaint as "Downstate C.O. - Mitchell - Female"; "Sgt. at Downstate - Zuran"; "Downstate Rev. - Twyman"; and "Superintendent - at Downstate - Perez." (Compl. at 2.)

Defendants identified in the amended complaint as connected to or associated with Attica are Corcoran, Fleckenstein, Bradt, LoDestro, Keenan, Dolce, Borawski, and Spaulding.⁵ These defendants are also referred to herein as the "Attica Defendants," and the claims against them are referred to as the "Attica Claims."

5 These defendants are named in the amended complaint as "Sgt. at Attica - Corcoran"; "C.O. at Attica - Fincklestein"; "Attica Corr. Superintendent - M. Bradt"; "C.O. at Attica - Ladesty - Female 3-11 Yard C.O. (Ladestry)"; "Attica C.O. - J. Keenan"; "Deputy Supt. of Programs-Mrs. Dolce" with an Attica address; "Lt. @ Attica-Mr. Borawski"; and "Correction Officer Spalding" with an Attica address. (Compl. at 2-3.)

Defendants not identified in the amended complaint as connected to or associated with any particular facility are DOCCS Commissioner Brian Fischer and DOCCS Director of Hispanic and Cultural Affairs Hector de la Concha.⁶

6 These defendants are named in the amended complaint as "N.Y.S. D.O.C.S. Commissioner - Brian Fischer" and "Hector de la Concha, Dir. of Hispanic & Cultural Affai[rs]." (Compl. at 2-3.)

B. Sing Sing Claims

Plaintiff alleges that, on September 27, 2010, he was forced to give his Santeria beads to Corrections Officer Bernard (not a defendant here) because DOCCS directives forbid the wearing of such beads while in transit. (Id. at 4.) Defendants Hasan Mumin and Superintendant Philip Heath allegedly "supported and were present for this action." (Id.) The amended complaint does not state where this incident occurred, but since Mumin and Heath are listed in the amended complaint as officers at Sing Sing (id. at 2), the Court presumes that this alleged deprivation took place at Sing Sing.

C. Downstate Claims

Plaintiff further alleges that, on January 4, 2011, while he was at Downstate, Defendants Zupan, Twyman, and Perez "refuse[d]" to let Plaintiff "wear and possess his Santeria beads." (Id. at 4.) Plaintiff alleges that he showed Zupan, Twyman, and Perez the decision issued in Campos v. Coughlin, 854 F. Supp. 194 (S.D.N.Y. 1994), in which this Court recognized rights of prisoners to wear Santeria beads while incarcerated. (Id.)

D. Attica Claims

Plaintiff further alleges that defendant Attica officials Corcoran and Fleckenstein "threaten[ed] and us[ed] other C.O.'s to harass him . . . for wearing his Santeria beads under his shirt." (Id.) "Defendants continue to act in this manner[] with the support of the superintendent," Defendant Bradt. (Id.) The amended complaint also states that defendant LoDestro "at Attica Corr. Fac. used her cause of assaultive and other D-Block C.O. staff members, to not only violate the plaintiff's [religious rights⁷] but also had staff sexually assault the plaintiff on a 'pat-frisk.' Along with C.O. J. Keenan present as a party to such incident." (Id.) These incidents involving some of the Attica Defendants allegedly occurred on February 15, 2011 and March 13, 2011.

7 Instead of "religious rights," plaintiff refers to his "U.S.C. rights (2000bb-1^st + 14^th Amendment)." (Compl. at 4.)

Plaintiff also asserts that "[a]fter contacting [Defendant de la Concha], [i]n Albany[']s Central Office [on an unspecified date], [Defendant Dolce, Attica's Deputy Superintendent of Programs] 'investigated' harassment complaint and 'aassured' [sic] plaintiff that he 'wouldn't have to worry about staff bothering [him] about [his] beads being seen at [his] neckline. As long as [he] wear[s] them under [his] shirt.'" (Id. at 9.) (The Court presumes that Defendant de la Concha was contacted by Plaintiff and not by Mrs. Dolce.) After Defendant Dolce's assurance,⁸ Plaintiff "had no problem until Sgt. Corcoran worked plaintiff's housing unit. Plaintiff was issued a ticket for the same thing plaintiff was told not to worry about." (Id.) Defendant Lieutenant Borawski held a hearing, presumably relating to the ticket Plaintiff was issued, and Borawski was allegedly biased during the hearing and in deciding to punish Plaintiff. (Id.)

8 The amended complaint appears to date this assurance "4/11" (Compl. at 9), presumably indicating that the assurance occurred in April of 2011.

Plaintiff further alleges that, on July 26, 2011, Defendant Corrections Officer Spaulding "desecrated" Plaintiff's altar during a search while defendant LoDestro "acted in concert destroying plaintiff's legal papers." (Id.) Plaintiff alleges that these acts on July 26, 2011 (and perhaps also Defendant Corcoran's ticket and Defendant Borawski's hearing) were retaliation for Plaintiff's filing of the instant lawsuit. (Id.)

The amended complaint does not clearly state where the incidents involving the Attica Defendants occurred, but since all of the Attica Defendants are identified in one way or another in the amended complaint as officers at Attica (id. at 2-3), the Court presumes that the incidents alleged to involve them occurred at Attica.

E. Background Not Specific to Any Facility

Plaintiff also states that he contacted defendant DOCCS Commissioner Brian Fischer "[o]n how there's no provisions in directives clearly allowing Plaintiff to be free from harm, and not having his constitutional rights violated." (Id. at 4.)

Plaintiff's amended complaint states that "[a]ll injuries sustained are mental . . . ." (Id. at 5.) He further states that "Plaintiff has filed a grievance in all of the facilities named herein (numerous) about the violation of his constitutional rights. . . . To no avail has there been an interview, or the matter accordingly properly addressed." (Id.) Regarding a grievance at Downstate, Plaintiff alleges he "NEVER Received an answer!" (Id. at 6.)

In the present lawsuit, though Plaintiff does not expressly state as much, he appears to sue for an injunction protecting his right to wear Santeria beads at all times while in the custody of DOCCS. (See id. at 12-13 ("Why should I have to be not allowd [sic] to wear my beads . . . ?")). He also "seeks an additional $100,000." (Id. at 10.)

II. Applicable Standards

On a motion to dismiss a complaint pursuant to Rule 12(b)(6), the Court accepts the complaint's factual allegations as true and draws inferences only in the plaintiff's favor. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). Nevertheless, to survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

"Pro se status does not . . . excuse a plaintiff from compliance with the pleading standards of the Federal Rules of Civil Procedure." Jenkins v. New York City Dep't of Educ., 2011 U.S. Dist. LEXIS 130815, at *7-8 (S.D.N.Y. Nov. 9, 2011). At the same time, pro se complaints are held to less stringent standards than pleadings drafted by attorneys, and the court must read the plaintiff's pro se complaint liberally and interpret it as raising the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000).

The standard for a motion to dismiss for improper venue pursuant to Rule 12(b)(3) is similar to that of a 12(b)(2) motion to dismiss for lack of personal jurisdiction. Benjamin v. Carusona, No. 09 Civ. 9722, 2010 WL 4448213, at *5 (S.D.N.Y. Nov. 5, 2010). The court accepts as true all factual allegations in the non-moving party's pleadings and draws all reasonable inferences in favor of the party opposing the motion. Friedman v. Schwartz, No. 08 Civ. 2801, 2009 WL 701111, at *5 (E.D.N.Y. Mar. 13, 2009). Additionally, in ruling on a Rule 12(b)(3) motion, the court may rely on facts and documents outside the complaint. Cartier v. Micha, Inc., No. 06 Civ. 4599, 2007 WL 1187188, at *2 (S.D.N.Y. Apr. 20, 2007). The plaintiff bears the burden of demonstrating that his chosen venue is proper. U.S.E.P.A. ex rel. McKeown v. Port Auth. of N.Y. & N.J., 162 F. Supp. 2d 173, 183 (S.D.N.Y. 2001). If the Court chooses not to hold an evidentiary hearing, the plaintiff need only make a prima facie showing that venue is proper. See Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005); Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 921-22 (2d Cir. 2010).

III. Discussion

This discussion addresses Plaintiff's claims, their merits, and pertinent limitations to recovery in five sections: (A) the Attica Claims; (B) Plaintiff's failure to state plausibly any claim against certain defendants; (C) his constitutional claims under 42 U.S.C. § 1983; (D) his claims under the RFRA and RLUIPA; and (E) qualified immunity.

A. Plaintiff's Attica Claims

Defendants argue that the Attica Defendants are improperly joined in this action. Accordingly, Defendants move (1) to sever the Attica Claims from Plaintiff's other claims and (2) to dismiss the Attica Claims for improper venue or to transfer them to an appropriate district.

1. Propriety of Joinder

Under Federal Rule of Civil Procedure 20,

Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Fed. R. Civ. P. 20(a)(2). To determine whether claims pertain to the same series of transactions or occurrences, courts typically ask whether the transactions or occurrences are "logically related." See Abraham v. Volkswagen of Am., Inc., 795 F.2d 238, 251 (2d Cir. 1986) (citing 7 C. Wright and A. Miller, Federal Practice and Procedure § 1653 (1972)). Under Rule 21, "[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party." Fed. R. Civ. P. 21.

Here, Plaintiff alleges that, at Sing Sing, he was forced to hand over his Santeria beads while in transit and that, at Downstate, he was deprived of wearing or possessing his beads. He does not allege that he was ever prevented from wearing or possessing his Santeria beads at Attica. Rather, the allegations supporting the Attica Claims are that Plaintiff was harassed, threatened, and disciplined for wearing his beads; that his altar was desecrated and his legal papers destroyed; that he was sexually assaulted; and possibly that he was otherwise physically assaulted.

Plaintiff's claims that he was deprived of his beads at Sing Sing and Downstate are logically related to the harassment and discipline he allegedly endured at Attica regarding the visibility of his beads at the back of his neck. The alleged Sing Sing and Downstate deprivations and the Attica harassment may have been motivated by the same DOCCS policy or by the same purported penological interest and may raise some of the same questions of law or fact. Accordingly, the claims against Corcoran, Fleckenstein, Bradt, LoDestro, and Borawski concerning harassment, threats, and discipline related to Plaintiff's Santeria beads are properly joined.

Under Federal Rule of Civil Procedure 18, "[a] party asserting a claim . . . may join, as independent or alternative claims, as many claims as it has against an opposing party." Accordingly, Plaintiff may also properly join his claims against LoDestro for "ha[ving] staff sexually assault" him and for "destroying plaintiff's legal papers." "Logically related" to those claims are Plaintiff's claims against Keenan for being "party" to Plaintiff's sexual assault and against Spaulding for "desecrat[ing]" Plaintiff's altar during the same search in which LoDestro allegedly destroyed Plaintiff's legal papers. Those claims against Keenan and Spaulding may raise some of the same questions of law or fact as claims against LoDestro.

Accordingly, all of the Attica Claims and all of the Attica Defendants are properly joined in this action. Defendants' motion to sever the Attica Claims is denied. Defendants have not moved to dismiss the Attica Claims for any reason other than improper venue, and accordingly, none of the Attica Claims is dismissed at this stage in the litigation.

B. Failure Plausibly to State Claims against Certain Defendants

Plaintiff has failed to allege any facts that would plausibly support any claim against three of the defendants: Fischer, de la Concha, and Mitchell. Under 42 U.S.C. § 1983, "[p]roof of an individual defendant's personal involvement in the alleged wrong is, of course, a prerequisite to his liability on a claim for damages . . . ." Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001). Accordingly, "[t]he bare fact that [an official] occupies a high position in the New York prison hierarchy is insufficient to sustain [a § 1983] claim." Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995).

Personal involvement is also a prerequisite to a defendant's liability under RLUIPA. Joseph v. Fischer, No. 08 Civ. 2824 (PKC), 2009 U.S. Dist. LEXIS 96952 at *50-52 (S.D.N.Y. Oct. 8, 2009) (reviewing pertinent case law and holding that a plaintiff must allege a defendant's personal involvement in order to state claim under RLUIPA and that, after Iqbal, "an official's denial of a grievance alleging a constitutional deprivation, without more, does not amount to personal involvement in the deprivation of that right").

In the Second Circuit, personal involvement in intentional discrimination is shown where "the defendant participated directly in the alleged constitutional violation, [or] . . . the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom . . . ." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).⁹ "Even where there has been a constitutional violation, receipt of letters or grievances is insufficient to impute personal involvement." Dilworth v. Goldberg, No. 10 Civ. 2224 (RJH) (GWG), 2011 WL 3501869, at *19 (S.D.N.Y. July 28, 2011), report and recommendation adopted, 2011 WL 4526555 (S.D.N.Y. Sept. 30, 2011) (internal quotation marks, modifications, and citation omitted).

9 These are only the first and third scenarios listed in Colon in which personal involvement might be found, but the others have been invalidated by the Supreme Court's holding in Iqbal that "a supervisor's mere knowledge of his subordinate's discriminatory purpose [does not] amount[] to the supervisor's violating the Constitution." Iqbal, 556 U.S. at 677; see also Spear v. Hugles, No. 08 Civ. 4026 (SAS), 2009 WL 2176725, at *2 (S.D.N.Y. July 20, 2009) ("[O]nly the first and third Colon factors have survived the Supreme Court's decision in Iqbal."); see also Hodge v. Sidorowicz, No. 10 Civ. 428 (PAC) (MHD), 2011 WL 6778524, at *16 (S.D.N.Y. Dec. 20, 2011), report and recommendation adopted sub nom. Hodge v. Wladyslaw, 2012 WL 701150 (S.D.N.Y. Mar. 6, 2012) (holding that Iqbal so limits analysis under Colon for constitutional claims of intentional discrimination, as seen here, but not necessarily for other kinds of claims).

1. Fischer

Regarding Defendant Fischer, Plaintiff alleges merely that he contacted Fischer "[o]n how there's no provisions in directives clearly allowing Plaintiff to be free from harm, and not having his constitutional rights violated . . . ." (Compl. at 4.) Included in Plaintiff's opposition is a letter to Fischer complaining about prison officials' interference with Plaintiff's religious practices. (Pl.'s Opp., Dkt. No. 35-1, at 8 of 74.) There are no allegations in the amended complaint or Plaintiff's opposition papers concerning Fischer's direct involvement in Plaintiff's affairs, concerning Fischer's role in creating DOCCS policy or, indeed, concerning anything Fischer did. Plaintiff argues that the claims against Fischer should survive because Fischer "ha[d] knowledge of actions taken, and ignore[d] the events o[r] hid[] behind the directives and policies when plaintiff showed that the directives are vague." (Pl.'s Opp., Dkt. No. 35, at 7 of 67.) Plaintiff's arguments are insufficient to show that he has stated a claim against Defendant Fischer. Accordingly, the claims against Fischer must be dismissed.

2. de la Concha

Regarding Defendant de la Concha, Plaintiff alleges only that de la Concha was "contact[ed]." (Compl. at 9.) As discussed above, the Court presumes that he was contacted by Plaintiff. The amended complaint includes no allegations concerning the content of the communication with de la Concha, but thereafter, Defendant Dolce investigated a harassment claim made by Plaintiff. (Id.) Regardless of what communications went to de la Concha, there are no allegations about any actions taken by de la Concha. Even if the Court were to presume that de la Concha directed Dolce to investigate Plaintiff's complaint, there would still be no "factual content allow[ing] the court to draw the reasonable inference that the defendant is liable for [any] misconduct alleged." Iqbal, 556 U.S. at 663. Accordingly, the claims against de la Concha must be dismissed.

3. Mitchell

The final defendant listed in the amended complaint's caption is "Downstate C.O. - Mitchell - Female." (Compl. at 2.) However, no factual allegations concerning Mitchell are included in the amended complaint. Plaintiff argues that the claims against Mitchell, like those against Fischer, survive because she knew of "actions taken, and ignore[d] the events." (Pl.'s Opp., Dkt. No. 35, at 7 of 67.) Plaintiff's arguments cannot overcome the failure of the amended complaint to allege any facts concerning Defendant Mitchell or to state any claim against her. The claims against Mitchell must be dismissed.¹⁰

10 Defendants assert that Defendant Mitchell has not been served with the amended complaint. (Def.'s Br., Dkt. No. 43, at 4.) However, she was served (see Dkt. No. 18) with the original complaint, which similarly alleged nothing about her. (See Dkt. No. 1.) As the Court may consider the facts alleged—or, as here, not alleged—in both the original complaint and the amended complaint, see Chodos v. FBI, 559 F. Supp. 69, 71 (S.D.N.Y. 1982), it is appropriate at this stage to consider and dismiss any claims against Defendant Mitchell and to terminate Mitchell as a defendant. --------

However, the claims against Fischer, de la Concha, and Mitchell are dismissed without prejudice to Plaintiff's statement of a plausible claim against any of them for involvement in the alleged wrongs against him.

C. Constitutional Claims under 42 U.S.C. § 1983

Plaintiff raises constitutional claims under the First and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983. After a discussion of the merits of these claims, this section addresses a number of relevant limitations to recovery.

1. First Amendment Free Exercise Claims

The First Amendment of the United States Constitution, as incorporated against the states by the Fourteenth Amendment, bars government from "prohibiting the free exercise" of religion. U.S. Const. amend. I. "[F]ree exercise claims of prisoners are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." Singh v. Goord, 520 F. Supp. 2d 487, 508 (S.D.N.Y. 2007) (internal quotation marks and citation omitted).

On a constitutionally-based free exercise claim, the Court must assess (1) whether the practice asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely held; (2) whether the challenged practice of the prison officials infringes upon the religious belief; and (3) whether the challenged practice of the prison officials furthers some legitimate penological objective.

Id. (internal quotation marks and citation omitted).

Plaintiff states, in a letter attached to his amended complaint, "[m]y beads are my main tenet to the practice of my religion." (Compl. at 12.) Plaintiff alleges that, in violation of his First Amendment right to free exercise of his religion, he was forced to hand over his Santeria beads while he was in transit at Sing Sing and that he was deprived of wearing or possessing his beads at Downstate.

Defendants argue in vain that Plaintiff "has not pleaded that wearing his beads are an essential part of his religious practice." (Def.'s Br., Dkt. No. 43, at 10.) Plaintiff has alleged with abundant clarity that the wearing of his Santeria beads is "religious in [his] scheme of beliefs," Singh, 520 F. Supp. 2d at 508, that his beliefs are sincerely held, id., and, indeed, that wearing his beads are the "main tenet" of his religion (Compl. at 12). Defendants also argue that Plaintiff "failed to allege specifically how defendants' actions with respect to his Santeria bead [sic] infringe on his religious beliefs." (Def.'s Br. at 10.) But since the wearing of Santeria beads is alleged to be a religious practice important to Plaintiff, it is sufficiently clear that the Sing Sing and Downstate defendants' alleged confiscation of his beads—preventing Plaintiff from wearing them—may establish an infringement of his religious beliefs.

Defendants make no argument about whether defendants' behavior is justified by a legitimate penological interest. This is largely a question to be addressed after the discovery of relevant evidence, but at this stage, Plaintiff has sufficiently alleged the absence of a legitimate penological interest by noting that members of other religions are not similarly restricted. In a letter attached to the amended complaint, Plaintiff asks, "Why should I have to be not allowd [sic] to wear my beads, when you have other persons who practice other religions allowed to wear certain articles of clothing, pendants, etc. . . . ?" (Compl. at 12-13.) Plaintiff argues, in effect, that a legitimate penological interest requiring confiscation of his beads would also require the confiscation of other, similar items used in other religions. The Court does not now decide whether a legitimate penological interest exists to justify the singling out of Santeria beads, but Plaintiff's logic is strong enough to allege the absence of such a justification.

For the reasons just stated, in the face of the instant motion to dismiss, Plaintiff has alleged facts sufficient to support his claims that the Sing Sing and Downstate Defendants violated his free-exercise rights. Accordingly, Defendants' motion to dismiss is denied as to Plaintiff's Sing Sing and Downstate Claims brought pursuant to the First Amendment and 42 U.S.C. § 1983.

2. Fourteenth Amendment Claims

Plaintiff does not specify which provision of the Fourteenth Amendment he believes the defendants have violated. However, the substance of his allegations—especially that his religious freedoms have been violated while others' religious freedoms have not—suggests a denial of the "equal protection of the laws" guaranteed by the Fourteenth Amendment. U.S. Const. amend. XIV, § 1.

"The equal protection clause directs state actors to treat similarly situated people alike. To prove an equal protection violation, claimants must prove purposeful discrimination directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citation omitted). A prisoner's equal-protection claim is, like a free-exercise claim, evaluated alongside the reasonableness of the challenged practice of prison officials. "[T]he reasonableness of the prison rules and policies must be examined to determine whether distinctions made between religious groups in prison are reasonably related to legitimate penological interests." Benjamin v. Coughlin, 905 F.2d 571, 575 (2d Cir. 1990).

Here, as discussed above, Plaintiff asks, "[w]hy should I have to be not allowd [sic] to wear my beads, when you have other persons who practice other religions allowed to wear certain articles of clothing, pendants, etc. . . . ?" (Compl. at 12-13.) His question and allegations concerning the confiscation of his beads are sufficient to allege that, as a member of an identifiable religious class, he is treated differently than are practitioners of other religions. As also discussed above vis-à-vis Plaintiff's free-exercise claims, his question is also sufficient to allege that no legitimate penological interest justifies the equal-protection violations that he alleges.

For purposes of this motion to dismiss, Plaintiff has alleged facts sufficient to support his claims that the Sing Sing and Downstate Defendants denied him equal protection of the laws. Accordingly, Defendants' motion to dismiss is denied as to the Sing Sing and Downstate Claims brought pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983.

3. Defendants' Capacities for Purposes of Plaintiff's § 1983 Claims

Liberally construed, the amended complaint raises Plaintiff's § 1983 claims against Defendants in both their official and individual capacities. Defendants argue that "the official capacity claims fail . . . because an official capacity damage suit is directed at the State, whose sovereign immunity is not abrogated by 42 U.S.C. § 1983." (Def.'s Br. at 11.) Defendants are only partially correct.

Under § 1983, a plaintiff may seek money damages against a "person" who effects a deprivation of a constitutional right against the plaintiff. 42 U.S.C. § 1983. However, a plaintiff may not use that section to recover money damages against a state official in her official capacity because such a suit is deemed to be against the state, which is not a "person" for these purposes. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Accordingly, here, Plaintiff is barred from recovering money damages from Defendants in their official capacities.

However, "a state official in his or her official capacity, when sued for injunctive relief, [is] a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State." Id. at 71 n.10 (internal quotation marks and citation omitted); see also Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006). Thus, Plaintiff may, on his surviving official-capacity claims under § 1983, seek injunctive relief, and those official-capacity claims do not fail as a matter of law at this stage of litigation.

4. Failure to Allege Physical Injury

Defendants further argue that Plaintiff's claims under 42 U.S.C. § 1983 should be dismissed because Plaintiff fails to allege any physical injury. Federal law does provide that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). However, that provision bars physically uninjured prisoners only from collecting money damages. It does not prevent a prisoner from obtaining injunctive or declaratory relief. See Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002) (citation omitted). Accordingly, Defendants' motion to dismiss Plaintiff's claims due to his failure to allege physical injury is denied.

D. RFRA and RLUIPA

In addition to Plaintiff's constitutional claims, the amended complaint alleges violation of Plaintiff's "U.S.C. § 2000bb" rights, presumably his rights under 42 U.S.C. § 2000bb et seq., the Religious Freedom Restoration Act ("RFRA"). However, the Supreme Court invalidated the RFRA in City of Boerne v. Flores, 521 U.S. 507 (1997). Thus his claims under the RFRA must be dismissed with prejudice. However, in deference to Plaintiff's pro se status, the Court analyzes his statutory religious claims under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq., which was enacted by Congress to rectify the constitutional infirmity of the RFRA. See Pugh v. Goord, 571 F. Supp. 2d 477, 504 n. 11 (S.D.N.Y. 2008).

The Second Circuit has held that, to prevail on an RLUIPA claim, "a plaintiff must demonstrate that the state has imposed a substantial burden on the exercise of his religion; however, the state may overcome a RLUIPA claim by demonstrating that the challenged policy or action furthered a compelling governmental interest and was the least restrictive means of furthering that interest." Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010) (citing 42 U.S.C. § 2000cc-1(a)). This RLUIPA standard is more generous to plaintiffs than is First Amendment law, which upholds a generally applicable policy if it is "reasonably related to legitimate penological interests." Id. (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)) (internal quotation marks omitted).

As discussed above, Plaintiff here has alleged that "[m]y beads are my main tenet to the practice of my religion." (Compl. at 12.) He further alleges that he was forced to hand over his Santeria beads while he was in transit at Sing Sing and that he was deprived of wearing or possessing his beads at Downstate. As such, Plaintiff has sufficiently alleged that the Sing Sing and Downstate Defendants have "imposed a substantial burden on the exercise of his religion." Accordingly, Defendants' motion to dismiss Plaintiff's RLUIPA claims against the Sing Sing and Downstate Defendants is denied.

E. Qualified Immunity

Defendants argue that Zupan, Twyman, Perez, Mumin, and Heath are entitled to qualified immunity. Government officials "performing discretionary functions generally . . . are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quotation marks and citation omitted).

However, for qualified immunity to bar suit at the motion-to-dismiss stage, "[n]ot only must the facts supporting the defense appear on the face of the complaint, but as with all Rule 12(b)(6) motions . . . the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (citation omitted); accord Peoples v. Fischer, No. 11 Civ. 2694 (SAS), 2012 U.S. Dist. LEXIS 62428 (S.D.N.Y. May 3, 2012); Percinthe v. Julien, No. 08 Civ. 893, 2008 U.S. Dist. LEXIS 78246, 2008 WL 4489777, at *3 (S.D.N.Y. Oct. 4, 2008). Moreover, "[q]ualified immunity provides a basis to preclude monetary damages, but not injunctive relief." Edwards v. Horn, No. 10 Civ. 6194 (RJS) (JLC), 2012 U.S. Dist. LEXIS 30968, at *73 (S.D.N.Y. Mar. 7, 2012) (citing Morse v. Frederick, 551 U.S. 393, 432 (2007)).

Qualified immunity may be appropriate in this case, but a determination should await factual development relating to whether and how defendant prison officials may have deprived Plaintiff of his Santeria beads. Defendants' motion to dismiss Plaintiff's claims based on qualified immunity is denied.

IV. Conclusion

For the reasons stated above, Defendants' motion to dismiss is GRANTED in part and DENIED in part.

Specifically, (A) Plaintiff's claims related to his incarceration at Attica Correctional Facility are neither severed for improper joinder nor dismissed for improper venue; (B) his claims against Defendants Fischer, de la Concha, and Mitchell are dismissed without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted; (C) his claims under the First and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 are not dismissed; (D) his claims under RFRA are dismissed with prejudice, but his claims under RLUIPA are not dismissed; and (E) Defendants' motion to dismiss Plaintiff's claims on the basis of qualified immunity is denied.

It is certified that any appeal taken in forma pauperis from this order would not be taken in good faith because such an appeal would be frivolous. See 28 U.S.C. § 1915(a)(3).

The Clerk of Court is directed to close the motion at docket entry number 42. SO ORDERED. Dated: New York, New York

June 20, 2012

/s/_________

J. PAUL OETKEN

United States District Judge