The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM-DECISION AND ORDER
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.
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.
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 ...