The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On July 6, 2004, the parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. The matter is presently before the court on Defendant's motion for summary judgment (Doc. No. 17), filed December 15, 2004.
Plaintiff Mark A. Smith ("Plaintiff") commenced this civil rights action pro se pursuant to 42 U.S.C. § 1983 on March 26, 3004, alleging Defendant John Nuttal ("Nuttal"), and two others identified only as "John Doe" ("the John Doe Defendants").*fn2 refused to allow Plaintiff, who is Muslim, to receive a kosher Cold Alternative Meal ("CAM"), in violation of his rights under the First Amendment's Free Exercise Clause and the Fourteenth Amendment's Equal Protection Clause. In particular, Plaintiff maintains that although he was allowed to receive the Religious Alternative Meal ("RAM") diet, which is generally available to inmates who request it and which fully comports with the tenets of Plaintiff's Muslim faith, the RAM meal provides Halal*fn3 meat only once a week, whereas the CAM diet, which also comports with Muslim dietary requirements, provides meat products several times a week.*fn4
As noted, on December 15, 2004, Defendant filed the instant motion for summary judgment (Doc. No. 17) ("Defendant's Motion"), and supporting papers including the Declarations of Assistant Attorney General Stephen Gawlik ("Gawlik") (Doc. No. 18) ("Gawlik Declaration"), and John Nuttall (Doc. No. 19) ("Nuttall Declaration"), Defendant's Statement of Facts Not in Dispute (Doc. No. 20) ("Defendant's Statement of Facts"), and Defendant's Memorandum of Law in Support of Motion for Summary Judgment (Doc. No. 21) ("Defendant's Memorandum"). In opposition to summary judgment, Plaintiff filed on February 7, 2005, Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Doc. No. 24) ("Plaintiff's Memorandum"), a Statement of Facts in Dispute (Doc. No. 25) ("Plaintiff's Statement of Facts"), and the Declaration of Mark A. Smith (Doc. No. 26) ("Plaintiff's Declaration"). In further support of summary judgment, Defendant filed on February 18, 2005, the Reply Declaration of Gawlik in Support of Defendant's Motion for Summary Judgment (Doc. No. 28) ("Gawlik Reply Declaration"). Oral argument was deemed unnecessary.
Based on the following, Defendant's motion for summary judgment is GRANTED.
Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The court is required to construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 58, 59 (2d Cir. 1999) (citing Anderson, supra, 477 U.S. at 255); Rattner, supra. The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, supra, 477 U.S. at 322; see Anderson, supra, at 247-48 ("summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
"[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.' Such a motion, whether or not accompanied by affidavits, will be 'made and supported as provided in this rule [FRCP 56],' and Rule 56(e) therefore requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, supra, 477 U.S. at 323-24 (1986) (quoting Fed. R. Civ. P. 56). Thus, "as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the non-moving party's case." Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir. 1998). Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). Rule 56 further provides that
[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).
Defendant argues in support of summary judgment that the policy of New York's Department of Correctional Services ("DOCS"), whereby the kosher CAM diet is provided only to Jewish and Hebrew Israelite inmates, while Muslims are restricted to the RAM diet, does not substantially burden Plaintiff's practice of his religion, Defendant's Memorandum at 3-6, and is rationally related to a legitimate penological interest, id. at 6-8, that Plaintiff's equal protection claim has already been litigated and rejected by other courts, id. at 9-11, Plaintiff's request for injunctive relief is moot, id. at 11-12, that Defendant was not personally involved in the decision denying Plaintiff's request to participate in the kosher diet program, id. at 12-13, and that Defendant is entitled to qualified immunity, id. at 14-15. In opposition to summary judgment, Plaintiff explains that he "does not contend or allege that the Religious Alternative Meal (RAM) did not meet the dietary requirements of his religious beliefs but rather that as a practicing Muslim he [Plaintiff] was denied the right to eat the Cold Alternative Diet, unless he changed his religious affiliation, even after DOCS . . . . changed its policy permitting practicing Muslims to eat the Cold Alternative Diet." Plaintiff's Memorandum at 5. Plaintiff also concedes that the RAM diet comports with the dietary requirement of his religious beliefs, but maintains that he was denied the opportunity to receive the CAM diet, which typically contains more meat products, unless he designated his religious affiliation as Jewish, although other inmates who were not Jewish were provided the CAM diet. Plaintiff's Memorandum at 4-5. Plaintiff further maintains that DOCS's policy of refusing to allow Muslim inmates to participate in the kosher CAM diet is not rationally related to any legitimate penological interest, id. at 6-8, denies that Plaintiff's equal protection claim has been previously litigated, id. at 8-10, asserts Defendant was personally involved in denying Plaintiff's request to receive the CAM diet, id. at 10-12, and maintains Defendant is not entitled to qualified immunity, id. at 13. In further support of summary judgment, Defendant maintains that Plaintiff has failed to identify any material issue of fact precluding summary judgment. Gawlik Reply Declaration ¶ 4.
Defendant is alleged to have violated Plaintiff's civil rights under 42 U.S.C. § 1983, pursuant to which an individual may seek damages against any person who, under color of state law, subjects such individual to the deprivation of any rights, privileges, or immunities protected by the Constitution or laws of the United States. 42 U.S.C. § 1983. Section 1983, however, "'is not itself a source of a substantive rights,' but merely provides 'a method for vindication of federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). Thus, "[t]he first step in any such claim is to identify the specific constitutional right allegedly infringed." Id. (citing Graham v. Connor, 490 U.S. 386, 394 (1989); and Baker, supra, at 140). Here, Plaintiff maintains that Defendant's refusal to permit Plaintiff to receive the CAM diet violates Plaintiff's First Amendment right to the free exercise of his religion, and Fourteenth Amendment right to equal protection under the law. Complaint, First Claim for Relief. Plaintiff's claims are without merit.
Although Plaintiff's religious liberty claim is only asserted under the First Amendment, such claim derives from two independent sources, including the First Amendment's Free Exercise Clause and § 3 of the Religious Land Use and Institutionalized ...