The opinion of the court was delivered by: BAER
Hon. Harold Baer, Jr., District Judge:
Plaintiff prisoner pro se sues defendants pursuant to 28 U.S.C. § 1983 for alleged violations of her civil rights. Defendants move to dismiss plaintiff's cause of action. For the reasons stated below, defendants motion to dismiss plaintiff's first amendment claim is denied while defendants' motion to dismiss plaintiff's fourteenth amendment and eighth amendment claims is granted.
On August 9, 1995, Plaintiff, who is Muslim, was incarcerated at Bedford Hills Correctional Facility (the "Facility") and as such was permitted to leave the recreation yard of the Facility in order to attend weekly religious services. Upon leaving the yard on that day, plaintiff was approached by defendant Burnelle, who questioned her about her destination and then told her to return to the yard. When plaintiff asked defendant Burnelle why she could not attend her religious services, Burnelle responded with obscenities and again ordered her back to the yard. For reasons that are unclear, Plaintiff did not return to the yard but instead returned to her housing unit and Burnelle returned to his assigned post. Plaintiff did not attend her religious services.
Upon returning to the housing unit, plaintiff requested to be seen by someone in the mental health department at the Facility because she "was unstable" after her exchange with defendant Burnelle and needed to "calm down." The plaintiff expressed to defendant Wilkins, the officer on duty, that she was "in fear of her life" because she thought that defendant Burnelle would try to beat her when he came to return her identification card that he had taken while of questioning plaintiff. Defendant Wilkins refused her visit to the mental health unit allegedly because he "said so." Plaintiff then requested three times, on each of the subsequent three days, to be seen by someone in the mental health department. Although plaintiff was told that the mental health department had been notified of plaintiff's request, plaintiff was not seen by someone in the mental health department until "sometime in September." Plaintiff alleges violations of her first, eighth and fourteenth amendment rights.
Defendants move to dismiss plaintiff's claims on several grounds: (1) her claims for damages for mental and emotional distress are barred pursuant to § 1997e(e) of the Prison Litigation Reform Act ("PLRA"); (2) denial of access to a congregate religious service on one occasion does not rise to the level of a constitutional violation; (3) plaintiff's claim of harassment fails to state a cause of action under § 1983; (4) denial of access to a mental health facility on one occasion does not rise to the level of a constitutional violation and (5) defendants are protected by qualified immunity.
Defendants argue that plaintiff's claims must be dismissed because she sues for mental distress without any showing of physical injury as is required under § 1997e(e) of the PLRA. The defendants argue that although the PLRA became effective after the date of the incident alleged here, this section of the PLRA should apply retroactively, and thus bar plaintiff's claim.
Section 1997e(e) of the PLRA states in relevant part that:
no 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) (Supp. 1997). Because the PLRA does not state its effective date, the Second Circuit has used the standards set forth by the Supreme Court in Landgraf v. USI Film Productions, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), to determine whether or not particular sections of the PLRA apply retroactively. Covino v. Reopel, 89 F.3d 105 (2d Cir. 1996). The core inquiry is "whether the new provision attaches new legal consequences to events completed before [the PLRA's] enactment." Landgraf, 114 S. Ct. at 1499. If it does, the provision may not be applied retroactively. Cooper v. Casey, 97 F.3d 914, 921 (7th Cir. 1996).
While the Second Circuit has not addressed whether or not § 1997e(e) of the PLRA applies retroactively, the Second Circuit has held that the PLRA's fee application provision applies retroactively. Covino, 89 F.3d at 107. In Covino, the Court found that the fee application provision of the PLRA does not attach new legal consequences to events before the its enactment because the prisoner can still proceed with his claims provided he satisfies the fee requirement. Id. In its decision, the Court also noted that "statutes effecting changes in substantive law will normally ...