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CARDEW v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

April 29, 2004.

ROBERT CARDEW, Plaintiff, V. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; GLENN S. GOORD, Commissioner; FRANK R. HEADLEY, Deputy Commissioner of Program Services; THOMAS G. EAGAN, Director, Inmate Grievance Program, all of DOCS; and JAMES J. WALSH, Superintendent; KEVIN V. HUNT, Deputy Superintendent of Program Services; WILLIAM D. BROWN, Deputy Superintendent of Administrative Services; KENNITH COSKY, Senior Counselor; STANISLAUS OGBANNA, Catholic Frier and Senior Chaplain; JOANNA PAPONTOS, Senior Counselor; WLADYSLAW SIDOROWICZ, Medical Doctor; MICHAEL KAPLAN, Counselor; PENNY HENRY, Corrections Officer; ROBERT SMITH, Vocational Instructor; HAROLD LAYTON, Vocational Instructor; CARL STIGLICH, Protestant Chaplain; all of Sullivan Correctional Facility, Defendants


The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion and Order

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. Fed.R.Civ.P. 12(b)(6).

Facts

  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. ¶ 44).

  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. ¶ 64).

 C. PLAINTIFF'S CLAIM UNDER THE RIGHT TO PETITION CLAUSE OF THE FIRST AMENDMENT

  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). ...


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