The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Before the Court is Defendants' motion (# 16) to dismiss Plaintiff's Eighth Amendment claim against all defendants with prejudice and to dismiss the entire amended complaint (# 15) as to Defendants Goord and Zon for lack of personal involvement. For the reasons stated below, the Court denies the motion.
Plaintiff alleged in his initial complaint that his First Amendment right to practice his religion and his due process rights were violated at Wende Correctional Facility ("Wende") when he was disciplined for failing to provide a urine sample during Ramadan.*fn1 Plaintiff claimed that he was unable to provide a sample as a result of his fasting pursuant to the requirements of Ramadan. Following Plaintiff's refusal to submit to the urinalysis, a disciplinary hearing was held and Plaintiff was found guilty of the charges and sentenced to 90 days keeplock, 90 days loss of privileges, 90 days loss of commissary, 90 days loss of phone, and 90 days loss of television. (Am. Compl., at Ex. G.) He was released after serving 77*fn2 days.
Defendants filed a 12(b) motion in lieu of serving an answer to the original complaint. The Court granted that motion in part and dismissed the original complaint as to Defendants Goord and Zon, because Plaintiff did not allege facts showing their personal involvement. In addition, the Court dismissed the Fourteenth Amendment due process and Eighth Amendment claims without prejudice, granting Plaintiff leave to re-plead the Eighth Amendment and Fourteenth Amendment due process claims. Plaintiff filed an amended complaint (# 15) which was docketed on August 4, 2006. In pertinent part, he alleges as follows:
31. The night before February 5, 2004, the plaintiff received (from the facility) his Sahour meal which consisted of two milks, 6 slices of bread, 6 sugars, and either 4 slices of cheese, or 2 eggs, or 1 hot, or two cold cereals.
32. This meal was consumed well before 5 a.m., and no other food or drink would be allowed (according to the tenets of fasting) from sunrise until sunset.
33. At about 2 p.m. on November 20th, 2003, Correction Officer J. Barbara (from herein, "Barbara") ordered the plaintiff to undergo a urine test.
34. The plaintiff went with the officer to the bathroom to comply, but could not produce a urine sample.
35. The plaintiff explained to the officer that he was fasting, and that he had been at work all day and was "parched", and thus could not provide a urine sample.
36. At about 3 p.m., the officer offered the plaintiff some water, but the plaintiff told him that he could not drink water during the fast. But that after sunset, he could drink water and produce a urine sample. He (the plaintiff) then asked the officer could the three hours run from that point.
37. The officer said that the three hour period began from the moment of notification (which was about 2 p.m.), and that either the plaintiff drink water and provide the sample, or wait the three hours and pray that he gives a sample. Otherwise, at the end of the three hours he would receive a ticket for not complying.
38. The plaintiff asked the officer to contact the facility Islamic Chaplain, but the officer refused.
39. At about 4:15 p.m., which was about 30 minutes before the plaintiff could break his fast, Barbara brought another cup of water to the plaintiff, and said "is your religion worth 90 days in the hole?". He said this while offering the water to the plaintiff.
40. To this, the plaintiff simply stated, "I'm Fasting", and asked for 30 minutes-until the time of breaking the fast-when he could drink water,-AND significant time thereafter to produce a sample.
41. At about 5:15 p.m., the officer informed the plaintiff that his time to produce the sample had expired, and it was now, considered a refusal to comply ...