The opinion of the court was delivered by: Michael H. Dolinger United States Magistrate Judge
REPORT & RECOMMENDATION and MEMORANDUM & ORDER
TO THE HONORABLE GERARD E. LYNCH, U.S.D.J.
Plaintiff Michael Wesley is an inmate in the New York City correctional system. He originally filed three pro se complaints in this court, alleging that various prison personnel at three Rikers Island prison facilities had infringed his right to the free exercise of his Muslim faith because the facilities were serving meals and providing food items at the prison commissary in a manner that violated the Halal requirements of his religion. (See Order dated June 23, 2005 at 1-2 & n.1).*fn1 The three cases were later consolidated, and plaintiff has since acquired pro bono representation. (Id.; Aff. of Madeleine Giansanti CaS, executed July 9, 2007, at ¶¶ 2-3). His counsel recently filed a second amended complaint ("2d Am. Compl."), which proffers similar but far more detailed allegations and names twenty-three individuals as well as various municipal agencies and New York City as defendants.
Following the filing of the most recent complaint, defendants moved to dismiss that pleading for facial inadequacy. They contend that the complaint fails to state a claim because plaintiff's three complaints, taken together, demonstrate that he has in fact not fully exhausted his administrative grievance procedures before filing suit, thus proving an affirmative defense. (Defs.' Reply Mem. of Law at 1-8). They further assert that the complaint does not adequately describe the personal participation of any of the individual defendants in the alleged wrongful conduct. Finally, they argue that all of the individual defendants are protected from liability by a qualified-immunity defense. Plaintiff has opposed the motion and has separately asked for expedited discovery to ascertain in more detail who bore responsibility for the violation of his First Amendment rights.
For the reasons that follow, we recommend that defendants' motion to dismiss be granted in part and denied in part. We further grant leave to plaintiff to conduct certain expedited discovery.
A. Plaintiff's Allegations and Claims
Plaintiff alleges that he is an adherent of the Muslim faith, and that one requirement of that religion is that he consume only food prepared in a manner consistent with "Halal" requirements, including avoidance of all pork-based products. (2d Am. Compl. at ¶¶ 17-25). He reports that he has been in custody in three New York City prison facilities from September 23, 2002 through December 23, 2005. (Id. at ¶¶ 4-5). He alleges that during that time, although the New York City Department of Correction ("DOC") had a rule requiring disposable trays for Kosher and Halal meals, it failed to comply with that rule for Muslim inmates. (Id. at ¶ 36). As a result, he asserts, although the prisons provide separate non-disposable trays for Halal and non-Halal meals (colored blue for Halal and beige for non-Halal), they have consistently failed to provide to him or other prisoners of the Muslim faith meals that conform to the basic requirements of their faith. (Id. at ¶¶ 28-32, 46-57). According to plaintiff, these violations include (1) a failure to provide meat that is fully cooked through, as required by Halal rules (id. at ¶ 55), (2) use in cooking of margarine and other products that contain pork-based by-products (id. at ¶ 56), (3) the stacking of all non-disposable trays together (both those used for Halal and those used for non-Halal meals) and washing them all in a common dishwasher (id. at ¶¶ 47-49, 51-52), (4) the washing of all non-disposable trays with soap that contains pork-based ingredients (id. at ¶¶ 53-54), and (5) sales of food products, including non-Halal items, in the prison commissaries without identifying which are non-Halal, a practice that results in Muslim inmates unknowingly placing non-Halal food on the blue trays. (Id. at ¶¶ 37-42, 44-46)).
Plaintiff further asserts that he was aware of these violations, and brought them to the attention of prison authorities. However, those officials failed or refused to deal with these problems, which were the product of their own policies or practices. (Id. at ¶¶ 8(a)-(k), 16, 60). He also says that he sought to avoid ingesting what his religion teaches is contaminated food by subsisting on a diet of "bread, matzo crackers and water," but that hunger compelled him, approximately twice a week, to eat non-Halal food (that is, food designated as Halal but contaminated) that was placed on his blue tray. (Id. at ¶ 58).
As defendants, plaintiff names numerous corrections officers and several Department officials, as well as a number of John Doe defendants and the City of New York.*fn2 He alleges, separately as to each of the named supervisory defendants, that they were informed of the violations and failed to correct them. (E.g., id. at ¶¶ 8(a)-(k), 60). As for the other individual defendants, he asserts that they participated in the sale of unidentified non-Halal food items in the prison commissaries, with the result that Halal trays in the dining facilities were contaminated. (Id. at ¶ 6(a)-(n)).*fn3
Based on these allegations, plaintiff asserts four claims, all for violation of his right to the free exercise of his religious beliefs. These claims are based, respectively, on (1) the First and Fourteenth Amendments, (2) the Religious Land Use and Institutionalized Persons Act, (3) Article I, section 3 of the New York State Constitution and section 610 of the N.Y. Correctional Law, and (4) Title 40, Chapter I, section 08 of the Rules of New York City. (Id. at ¶¶ 61-73). For relief, he asks for a declaratory judgment, compensatory and punitive damages and an award of attorney's fees. (Id. at p. 19, ¶¶ (a)-(d)).
Finally, the current version of the complaint makes only a passing reference to the exhaustion of prison remedies. In so doing, it states simply that "Plaintiff has exhausted such administrative remedies as were available to him." (Id. at ¶ 16).
I. Defendants' Motion to Dismiss
Defendants press three principal arguments in support of their motion to dismiss. First, they contend that plaintiff "fails to state a federal claim upon which relief can be granted" because he has purportedly not exhausted his administrative remedies. (Defs.' Mem. of Law at 3; Defs.' Reply Mem. of Law at 1). Although articulated as a challenge to the face of his pleading, this argument substantially rests on purported admissions contained in plaintiff's prior pro se pleadings. (Defs.' Mem. of Law at 8-9). Second, defendants argue that plaintiff's current complaint does not adequately plead the personal involvement of the various individually named defendants. (Defs.' Mem. of Law at 13-15; Defs.' Reply Mem. of Law at 12-16). This argument plainly turns on the facial adequacy of the Second Amended Complaint. Third, defendants argue that the individually named defendants are entitled to qualified immunity, an argument that also must depend upon the factual allegations of the current complaint. (Defs.' Mem. of Law at 15-18; Defs.' Reply Mem. of Law at 17-20).
We address these arguments in the order in which defendants present them.
Defendants' first argument -- that Wesley has failed to plead a claim because he has not exhausted his prison remedies, thereby justifying dismissal for failure to comply with the pertinent provision of 42 U.S.C. § 1997e(a) -- has a familiar ring. It is virtually identical to arguments made by defendants in a number of parallel lawsuits by other City inmates challenging alleged violations of Halal requirements at Rikers Island. Indeed, this court has already rejected those arguments in the first two sets of motions to be adjudicated. See Randolph v. City of New York Dep't of Correction, 2007 WL 2660282, *4-9 (S.D.N.Y. Sept. 7, 2007); Robinson v. City of New York, 06 Civ. 945 (GEL)(MHD), Report & Recommendation at 5-17 (S.D.N.Y. March 7, 2007). In each, defendants sought dismissal for lack of exhaustion based solely on their interpretation of certain allegations in the pro se plaintiffs' complaints. In each, defendants offered no evidence to demonstrate that plaintiffs had not exhausted their prison remedies and also failed to address the potential exceptions to the requirement of full exhaustion that the Second Circuit recognized in a series of decisions originating in 2003. See, e.g., Randolph, 2007 WL 2660282 at *8-9 & n.9 (discussing Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004), and similar cases).
In those earlier rulings, we noted that the Supreme Court had made clear in Jones v. Bock, 127 S.Ct. 910 (2007), that a plaintiff need not plead satisfaction of the exhaustion requirement, and that the cited statutory exhaustion provision merely creates an affirmative defense, thus obligating the defendants both to plead the defense and to prove the facts on which it is based. See Randolph, 2007 WL 2660282 at *5. We further observed that although dismissal on the basis of exhaustion (or other affirmative defenses) might be obtained if the allegations of the complaint clearly demonstrated that the defense was merited, a pro se plaintiff's pleading references to various efforts that he had made to bring alleged prison violations to the attention of the prison authorities cannot be treated as tantamount to an admission that he had not exhausted his remedies. Id. at *4-8. We also held that, in any event, if the complaint indicated that the plaintiff's efforts, through a grievance, to have prison ...