The opinion of the court was delivered by: BARBARA JONES, District Judge
Pro se Plaintiff Robert Cardew, an incarcerated inmate, brings this
action alleging various civil rights violations. He seeks injunctive and
declaratory relief, as well as monetary damages, pursuant to
42 U.S.C. § 1983, for violations of his constitutional rights by corrections
officers and other employees of the New York City Department of
Correctional Services ("DOCS"). Defendants move to dismiss Plaintiff's
complaint for failure to state a claim upon which relief may be granted.
Plaintiff's claims arise out of events that occurred during his
incarceration at Sullivan Correctional Facility; Plaintiff has since been
transferred and is presently incarcerated at Wende Correctional Facility.
The following facts are either undisputed or as alleged by Plaintiff.
A. PLAINTIFF'S CLAIMS UNDER THE ESTABLISHMENT AND FREE EXERCISE
CLAUSES OF THE FIRST AMENDMENT AND THE RELIGIOUS LAND USE AND
INSTITUTIONALIZED PERSONS ACT OF 2000
Plaintiff contends that, on December 18, 2000, while performing his
assigned duties in the Custodial Maintenance Program, he was notified by
Defendant Smith that members of his program class were required to report
to the chapel for a musical/religious event. (Compl. ¶ 33). Plaintiff
said that he did not want to attend the religious event, but his requests
to be excused were denied by Defendants Smith and Henry. (Compl. ¶¶
34-35). Plaintiff alleges that religious objects symbolizing Christmas
were displayed, and a prayer service was offered by Defendant Stiglich.
(Compl. ¶ 36). Plaintiff filed a grievance and maintains that
Defendants Eagen, Walsh and Hunt, after receiving his grievance,
acknowledged that the event was religious in nature, but failed to
promulgate any policy to ensure that a similar error does not occur in
the future. (Compl. ¶ 38).
Plaintiff alleges that on December 18, 2000, he sent a letter to
Defendant Stiglich requesting permission to attend a Jehovah's Witness
service. (Compl. ¶ 40). The following day, Plaintiff received a
letter from Stiglich denying his request because Plaintiff was designated
as a Protestant in the DOCS computer system. (Compl. ¶ 41). On
December 20, 2000, Plaintiff sent a second letter requesting to attend
the Jehovah's Witness service, and again his request was denied. (Compl.
¶ 41). Plaintiff believes he was randomly designated as a Protestant,
either by the computer or the operator, because he was never affiliated
with the Protestant faith prior to or during his incarceration. (Compl.
After he filed grievance SUL-12968/00, Plaintiff was permitted to
attend a Jehovah's Witness service on January 26, 2001, but was then
denied access to the other services unless he "pledged allegiance" to the
Jehovah's Witness religion. (Compl. ¶ 47). Plaintiff then had to seek
assistance from Sgt. Brickell because Defendant Stiglich "provoked a
confrontation" with Plaintiff in order to force plaintiff to "pledge
allegiance" to the Jehovah's Witness religion. (Compl. ¶ 49). On
February 5, 2001, Plaintiff had to seek the assistance of Lt. Kessler
because Defendant Stiglich again sought to provoke him into "pledging
allegiance" to the religion. (Id.). Defendants Walsh and Eagen were made aware of these events, but failed to remedy the
situation. Plaintiff alleges that if he wanted to attend Catholic,
Protestant, or Muslim religious services, he would not have to "pledge
allegiance" to any of these religions. (Compl. ¶ 48).
B. PLAINTIFF'S CLAIM UNDER THE LIBERTY INTEREST CLAUSE AND EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
On November 1, 1999, Plaintiff filed an Article 78 Petition in Albany
County Supreme Court against Defendant Goord, Cardew v. Goord,
Index # 6250-99, RJI # 01-99-ST0376, alleging that DOCS directive #4803,
and a DOCS disciplinary rule were unconstitutional since they conflicted
with New York State Correction Law § 171. (Compl. ¶ 51). On
February 3, 2000, Justice Torraca ruled there was no conflict of law, but
the DOCS rules must be "administered in accordance with the statute."
(Compl. ¶ 52).
On November 28, 2000, Plaintiff claims he went to the Program Committee
for an assignment, and was forced, under the threat of disciplinary
action, to take a hall porter position by Defendant Kaplan, which
required him to work on Sundays and holidays in violation of Correction
Law § 171. (Compl. ¶ 53). Plaintiff asserts that he then
presented a copy of the court decision of Justice Torraca to Defendant
Kaplan, but nonetheless, Defendant Kaplan refused to comply with
Correction Law § 171. (Compl. ¶ 54). Plaintiff continued
challenging his assignment but Defendants refused to change his assignment. (Compl. ¶¶
55-63). Plaintiff alleges that Defendants have a statewide policy of
"threaten [ing] inmates with disciplinary sanctions and  disciplin[ing]
inmates who refuse to work on Sundays and public holidays." (Compl. ¶
C. PLAINTIFF'S CLAIM UNDER THE RIGHT TO PETITION CLAUSE OF THE
Plaintiff claims that on December 14, 2000, Defendant Kaplan threatened
to take disciplinary action against Plaintiff in retaliation for
Plaintiff's filing grievances against the administration. (Compl. ¶
65). Kaplan said that Plaintiff was making false accusations and should
have been disciplined for doing so. (Compl. ¶ 66). Plaintiff then
filed a complaint against Defendant Kaplan; Defendant was never
disciplined for filing that grievance. (Compl. ¶¶ 67-68).
Plaintiff further contends that on December 13, 2000, he was told by
Defendant Cosky that he "could not have any of the better program
assignments since he had filed grievances against the facility staff,
medical staff and has staff separation orders in other facilities."
(Compl. ¶ 69).
D. PLAINTIFF'S CLAIMS UNDER THE CRUEL AND UNUSUAL PUNISHMENT
CLAUSE OF THE EIGHTH AMENDMENT AND CLAIMS UNDER THE AMERICANS WITH
DISABILITIES ACT AND SECTION 504 OF REHABILITATION ACT
In November 2000, Plaintiff claims that he was forced to work in
Vocational Building Maintenance, despite his hearing disability. (Compl. ¶ 81). His medical records reveal that his
hearing impairment and nerve damage causes him severe discomfort when
working in a high noise environment. (Compl. ¶¶ 81, 83, 86). ...