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Keesh v. Smith

September 21, 2006

TYHEEM KEESH, F/K/A TYHEEM ALLAH AND JESUS MICHAEL JOVA, F/K/A ROBERT D'LUCCA, PLAINTIFFS,
v.
JOSEPH T. SMITH, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY; EVAN GORELICK, DEPUTY SUPERINTENDENT OF PROGRAMS, SHAWANGUNK CORRECTIONAL FACILITY; GLENN S. GOORD, COMMISSIONER, NEW YORK STATE DEPT. OF CORRECTIONAL SERVICES; JOHN H. NUTTALL; MARK LEONARD; GEORGE PATAKI, DEFENDANTS.



The opinion of the court was delivered by: Gustave J. DI Bianco, Magistrate Judge

DECISION and ORDER

I. Introduction and Proceedings to Date

Plaintiffs Tyheem Keesh, f/k/a Tyheem Allah, and Jesus Michael Jova, f/k/a Robert D'Lucca, inmates in the custody of the New York State Department of Correctional Services ("DOCS"), filed this civil rights action alleging that they have been denied accommodations by DOCS to practice their religion in violation of their free exercise rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq. ("RLUIPA"). Plaintiffs' religion, known as "Tulukeesh", was started by plaintiff Keesh in 2003. Dkt. No. 31, Affirmation of Tyheem Keesh ¶ 9.*fn1 Plaintiff Keesh identifies himself as the "Savior and Teacher" of Tulukeesh. Id. at Ex. A p. 3. The tenets and practices of Tulukeesh are set forth in the holy book which Keesh authored entitled "Holy Blackness." Dkt. No. 26 at Facts ¶ 12; Dkt. No. 36 (Motion for Preliminary Injunction) Affirmation of Tyheem Keesh ¶ 13.*fn2

In response to a letter request from Keesh, defendant Gorelick, Deputy Superintendent of Programs at Shawangunk, advised that, in accordance with DOCS Directive 4202, approval of all requests for congregate religious services or classes require the involvement of outside religious clergy and an approved inmate facilitator. Dkt. No. 47, Mans Aff. Ex. F. Gorelick also stated that special menus and holidays could be established only with direction from outside clergy. Id. Keesh was advised that DOCS takes no position acknowledging any particular religion and that he could continue to practice his faith in his cell. Id.

In June, 2004, Keesh commenced a proceeding in New York State Supreme Court pursuant to CPLR Art. 78, alleging that the determinations made by defendants Goord and Smith regarding the practice of Tulukeesh deprived him of his constitutional right to practice his religion. Dkt. No. 47, Mans Aff. ¶ 5 and Ex. D. By Decision and Judgment dated December 30, 2004, Keesh's petition was dismissed on its merits. In his decision, State Supreme Court Justice E. Michael Kavanagh determined that the respondents acted reasonably and appropriately in responding to Keesh's request for accommodation of his religious beliefs and practices, by applying the provisions of DOCS Directive 4202. Id. and Ex. E.

This action followed. Following the filing of defendants' answer to the complaint, the Court set pretrial deadlines for this action. Dkt. No. 39.*fn3 Plaintiffs filed several motions for injunctive relief, seeking to compel defendants to accommodate plaintiffs' practice of their religion with respect to, inter alia, religious diet, holiday observances, programming, and access to religious items and literature. Dkt. Nos. 31, 36, 37. By Memorandum-Decision and Order filed March 2, 2006, plaintiffs' motions were denied by the Honorable Norman A. Mordue. Dkt. No. 79.*fn4

Presently before this Court for consideration are motions from plaintiffs seeking leave to file a second amended complaint and to compel discovery. Plaintiffs' motion for a protective order regarding the conduct of their depositions is also before the Court.

II. Motion to Amend

The decision to grant or deny a motion to amend is committed to the sound discretion of the trial court, and its decision is not subject to review on appeal except for abuse of discretion. Nettis v. Levitt, 241 F.3d 186, 192 (2d Cir. 2001). A motion to amend a pleading is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave to amend shall be freely given "when justice so requires." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993). In the case of proposed amendments where new defendants are to be added, the Court must also look to Rule 21, which states that a party may be added to an action "at any stage of the action and on such terms as are just." See United States v. Chilstead Building Co., No. 96-CV-0641 (N.D.N.Y. Nov. 7, 1997) (McAvoy, C.J.).

A motion to amend may properly be denied where the requested relief would be futile. Foman, supra, 371 U.S. at 182.*fn5 Similarly, "[w]here it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted). The Second Circuit has stated that "despite the lenient standard of Rule 15(a), a district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause." Parker v. Columbia Pictures Industries, 204 F.3d 326, 340 (2d Cir. 2000).

Plaintiffs seek leave to file a second amended complaint in this action, having previously filed an amended complaint as of right pursuant to Rule 15(a). The proposed amended complaint submitted in support of the motion names fourteen (14) additional defendants and sets forth plaintiffs' claims in one hundred thirty-eight (138) additional paragraphs. Dkt. No. 56.*fn6 The proposed amendments set forth ongoing acts and/or omissions by defendants which, according to plaintiffs, are attributable to the violation of their right to practice their religious beliefs. As plaintiff Keesh recognizes, "[t]o be truthful, it would be necessary to amend my complaint every day." Dkt. No. 69 ¶ 3.

Defendants oppose plaintiffs' motion to amend. Dkt. No. 57. Defendants urge the denial of the requested amendments on numerous grounds, including failure to state a claim, failure to allege facts sufficient to state a claim, and futility. Id.

As defendants correctly note, the proposed amended complaint sets forth claims against several newly named defendants who are absolutely immune from liability on plaintiffs' claims for damages.

The law in this Circuit clearly provides that "[j]udges enjoy absolute immunity from personal liability for 'acts committed within their judicial jurisdiction.'" Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994) (emphasis added) (quoting Pierson v. Ray, 386 U.S. 547 (1967)). "The absolute immunity of a judge applies however erroneous the act may have been, and however injurious in its ...


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