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BASS v. COUGHLIN

December 11, 1991

WARREN BASS, PLAINTIFF,
v.
THOMAS A. COUGHLIN III; RAYMOND VROADDUS; EARL B. MOORE; JAMES PLESCIA; GLORIA BUTLER-CONRAD; AND JOHN GLASHEEN, DEFENDANTS.



The opinion of the court was delivered by: McAVOY, District Judge.

MEMORANDUM-DECISION AND ORDER

I.

INTRODUCTION

On July 19, 1991, Magistrate Judge DiBianco Ordered that Plaintiff's motion to compel discovery be denied; recommended that Plaintiff's motion for summary judgment be denied; and recommended that Defendants' motion for summary judgment be denied. Both Plaintiff and Defendants have filed written objections to the magistrate judge's Order and Report Recommendation. The objections concern the recommendation that the motions for summary judgment be denied. Plaintiff also objects to the magistrate judge's conclusion that his claims for injunctive relief are moot. Plaintiff does not object to the denial of his motion to compel discovery.

This court has reviewed the record and finds that the relevant factual and procedural background of this case as set out in the Order and Report Recommendation is accurate. That section of the proposed order is incorporated here by reference. The facts important to the motions under consideration are as follows.

Plaintiff has brought this civil rights action under 42 U.S.C. § 1983 against certain officials at the Department of Correctional Services of the State of New York (DOCS). Plaintiff alleges that while he was confined in the Clinton Correctional Facility in Dannemora, New York from June 27, 1989 to May 18, 1990, he was denied his constitutional right to receive a kosher diet.

Plaintiff states that he is an adherent to the Jewish religion. In January, 1989, he spoke with a Jewish chaplain regarding permission to receive a kosher diet. On February 1, 1989, Rabbi Ponn confirmed plaintiff's religious sincerity and requested that the cold alternative diet (CAD) be provided to plaintiff.*fn1 DOCS provides the CAD to prisoners at Clinton, but only if the prisoner was previously enrolled in the kosher diet program at Green Haven Correctional Facility in Stormville, New York.*fn2 Plaintiff's subsequent requests for the CAD and for transfer to Green Haven were denied. On May 18, 1990, the plaintiff was transferred to Green Haven and began receiving a kosher diet.

Defendants claim that they provided acceptable alternatives to Plaintiff. They state that Plaintiff could have purchased his own food, had friends or family send care packages, or simply chose only kosher items in the prison food service line.

Plaintiff states that he could not afford to purchase his own food through the commissary program and that, in any event, there is no kosher demarcation on the commissary order form. Plaintiff further states that he had no outside resources to provide food through the package program, and that the prison food service line program does not provide kosher food.

II.

DISCUSSION

A. Standard of Review.

These motions were referred to Magistrate Judge Di Bianco for a report and recommendation. The motions for summary judgment are dispositive of the substantive claims made by Plaintiff. Accordingly, under Fed.R.Civ.P. 72(b) and Local Rule 43 of the Local Rules of the United States District Court for the Northern District of New York, this court must "make a de novo determination upon the record" of the motions before the court. Fed.R.Civ.P. 72(a); Local Rule 43. After making a de novo determination, this court may "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions." Fed.R.Civ.P. 72(b).

B. Summary Judgment.

Summary judgment is properly granted when it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Thompson v. Gjivoje, 896 F.2d 716, 720 (2nd Cir. 1990). To withstand a motion for summary judgment, the non-moving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in ...


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