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May 10, 2005.


The opinion of the court was delivered by: JOHN CURTIN, Senior District Judge

In this action brought pursuant to 42 U.S.C. § 1983, plaintiff Ronald Davidson claims that employees of the New York State Department of Correctional Services ("DOCS") violated his First Amendment rights by denying his requests for a kosher diet for ten days in October 1991 when he was transferred from the Clinton Correctional Facility to the Attica Correctional Facility.*fn1 Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Item 200). For the reasons that follow, defendants' motion is granted. BACKGROUND

Plaintiff is an inmate in the custody of DOCS, currently residing in the Shawangunk Correctional Facility in Wallkill, New York. He originally commenced this action pro se in April 1992, and filed an amended complaint in January 1993 (Item 10) while he was an inmate at Attica. He claims that on October 1, 1991, upon being informed that he was to be transferred from Clinton to Attica, he wrote to DOCS Commissioner Thomas Coughlin III, Assistant Commissioner Rev. Earle Moore, and Administrative Assistant James Plescia requesting that the kosher diet he was receiving at Clinton be continued during and immediately following his transfer (see Item 10, ¶ 5; Item 215, ¶ 4). In his letter to Commissioner Coughlin, plaintiff stated his position that kosher diets "should automatically be provided to a prisoner upon any transfer, as I have always maintained" (10/1/91 Letter, attached to Davidson Declaration, Item 215, as Ex. A).*fn2

On October 2, 1991, plaintiff was transferred from Clinton to the Downstate Correctional Facility, and on October 3, 1991, he was transferred from Downstate to the Auburn Correctional Facility. Plaintiff alleges that he made oral requests for a kosher diet at both Downstate and Auburn, but these requests were refused. He arrived at Attica on October 4, 1991, and was confined to his cell. He claims that upon his arrival, he wrote and spoke repeatedly to numerous administrative officials at Attica, including Superintendent Walter Kelly, First Deputy Superintendent Charles Brunelle, Deputy Superintendent of Programs Tim Murray, Jewish Chaplain Rabbi Schwartz, and Food Services Administrator John Putinas. According to plaintiff, from the time he found out he was being transferred to Attica, he made nearly twenty oral and written requests for continuation of his kosher diet to every DOCS official he could think of, but he did not receive kosher meals until October 12, 1991 — a period of ten days (Item 215, ¶ 6; see also Ex. B, Transcript of Davidson Deposition 10/1/03, at 25).

  As part of his duties as Deputy Superintendent for Programs, defendant Murray was in charge of all program activities at Attica, including the kosher diet program. Under DOCS procedures and guidelines in effect at the time of the events set forth in the pleadings, when an inmate who was transferred to Attica notified facility staff that he wished to participate in the kosher diet program, the request would be reported to the Deputy Superintendent for Programs, who then would notify the Rabbi. The Rabbi would determine whether the inmate was in fact Jewish, and whether the inmate could be transferred to the Greenhaven Correctional Facility to participate in the hot kosher diet program available there. If the Rabbi determined that the inmate was Jewish but could not be transferred to Greenhaven, the Deputy Superintendent would instruct the food service administrator to place the inmate on the "cold Alternative to the Non-Kosher food program," referred to at Attica as the "Alternative Diet" (Murray Declaration, Item 203, ¶¶ 4-6; see also DOCS Classification 5.501, attached to Item 203 as Ex. A).

  In this case, the record reflects that on October 8, 1991 — four days after plaintiff arrived at Attica — Deputy Superintendent Murray was verbally advised by Rabbi Schwartz that plaintiff had requested the Alternative Diet. Murray instructed Rabbi Schwartz to determine whether plaintiff was Jewish, and whether he was eligible for transfer to Greenhaven. That same day, Rabbi Schwartz interviewed plaintiff and confirmed that he was eligible to receive a kosher diet. Rabbi Schwartz reported back to Murray that plaintiff was Jewish, but was not eligible for transfer to Greenhaven. By memorandum dated October 9, 1991, Murray instructed defendant Putinas to place plaintiff on the Alternative Diet (Item 203, ¶¶ 7-8 & Ex. B). Three days later (on October 12), plaintiff began receiving kosher food.

  Plaintiff claims that as the result of the conduct of defendants Murray, Kelly, Brunelle, Putinas, Plescia, Moore, and Coughlin in response to his requests for a kosher diet, he was deprived of a basic tenet of his Jewish faith for ten days, in violation of the Free Exercise Clause of the First Amendment to the United States Constitution. Defendants move for summary judgment dismissing the kosher diet claim on the ground that the facts as alleged by plaintiff do not amount to a constitutional violation, and on the ground of qualified immunity. Defendants also seek summary judgment in favor of defendants Kelly, Brunelle, Putinas, Plescia, Moore, and Coughlin for lack of personal involvement in the alleged constitutional violation.


  I. Summary Judgment Standards

  Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted if the submissions of the parties taken together "show 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In determining whether summary judgment is appropriate, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993).

  The moving party has the initial burden to establish the basis for its motion and to identify the matters it "believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is "material" only if the fact has some effect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). The substantive law determines what facts are material to the outcome of the litigation. See Anderson, 477 U.S. at 248. A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

  Once the moving party meets its burden, the non-moving party has the burden of presenting "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Christian Dior-New York, Inc. v. Koret, Inc., 792 F.2d 34, 38 (2d Cir. 1986) (non-moving party must provide court with some basis to believe its "version of relevant events is not fanciful"). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)). II. The Free Exercise Clause

  The Free Exercise Clause of the First Amendment manifests an "unflinching pledge to allow our citizenry to explore diverse religious beliefs in accordance with the dictates of their conscience." Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984). As the Second Circuit has repeatedly recognized, prison inmates retain their constitutional right to the free exercise of their religious beliefs even when incarcerated. Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (citing Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir. 1997)). An inmate is therefore entitled to a reasonable accommodation of his or her religious beliefs, including religious dietary practices. Id. (citing Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir. 1992) ("prison officials must provide a prisoner a diet that is consistent with his religious scruples").

  In assessing whether a prisoner's right to free exercise of religion has been reasonably accommodated, courts are required to balance the constitutional interest at stake against "the interests of prison officials charged with complex duties arising from administration of the penal system." Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.), cert. denied, 498 U.S. 951 (1990), quoted in Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). Prisoners' free exercise claims are therefore "judged under a `reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Ford, 352 F.3d at 588. While the courts have struggled with various formulations and applications of this test, at bottom it requires the court to determine whether the challenged practice of prison officials is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987); O'Lone, 482 U.S. at 353.

  In Davidson v. Zon, No. 94-CV-0184 (W.D.N.Y. September 10, 2002) (No. 94-CV-0184, Item 194),*fn3 this court applied the standards enunciated in Turner and O'Lone to assess Mr. Davidson's claims regarding his removal from Attica's Alternative Diet roster for an extended period between October 1993 and May 1994 (when he was transferred to the Auburn Correctional Facility). Plaintiff claimed in the Zon case that DOCS officials violated his free exercise rights when they removed him from the roster for failing to adhere to DOCS' policy requiring Alternative Diet inmates to attend all meals in the mess hall. The court granted summary judgment in favor of the defendants on this claim, finding the ...

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