The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief United States District Judge
MEMORANDUM DECISION and ORDER
Plaintiff Bakhosheq Allan brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging that defendants have violated his right to practice his religion pursuant to the First Amendment of the United States Constitution as well as under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. (Dkt. No. 36)(amended complaint). Plaintiff seeks a substantial amount of monetary relief.
Presently before the court is defendants' second*fn1 motion for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c). (Dkt. No. 50). Plaintiff has responded in opposition to the motion. (Dkt. No. 62). For the following reasons, this court agrees with defendants and will dismiss the amended complaint.
1. Judgment on the Pleadings
After the pleadings are closed, a motion to dismiss for failure to state a claim is properly brought as a motion for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983) (citations omitted). See FED. R. CIV. P. 12(b), 12(c) and 12(h)(2). The motion for judgment on the pleadings is then treated according to the same standard as a motion under Rule 12(b)(6). Id.
A court may not dismiss an action pursuant to Rule 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (citing inter alia Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept the material facts alleged in the complaint as true. Id. (citing Cooper v. Pate, 378 U.S. 546 (1964)(per curiam)). In determining whether a complaint states a cause of action, great liberality is afforded to pro se litigants. Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991)(citation omitted).
When considering a motion to dismiss for failure to state a claim, the court may consider the complaint, together with any documents attached as exhibits or incorporated by reference. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1998). In this case, plaintiff has submitted "supplemental exhibits" in support of his complaint. (Dkt. Nos. 40, 41). This court may, therefore, consider the facts contained in those exhibits.
Plaintiff alleges that when he arrived at Upstate Correctional Facility on September 17, 2004, he was assigned to work in the mess hall. Amended Complaint (AC) at p.3. Plaintiff states that he informed defendants Fortin, Hutchins, and Haug that plaintiff was a Hebrew Israelite and could not work on Fridays and Saturdays. Id. Fridays and Saturdays are the Sabbath for the Hebrew Israelite faith. Plaintiff claims that initially, defendants Fortin and Hutchins told plaintiff that the work schedule would not be a problem, and that plaintiff's request would be accommodated. Id.
Plaintiff claims that on October 1, 2004, "plaintiff was denied all previous arrangements." Id. Plaintiff states that when he approached defendants Fortin and Hutchins to "reconfirm" the agreement, plaintiff was told that he would work one half day on October 1, 2004 so that he could prepare for the Sabbath, which began at sundown. However, plaintiff states that on October 1, 2004, defendant Fortin "reneged on the agreement." Id. Plaintiff states that he went to speak with defendant Haug, who was the Food Service Administrator, but defendant Haug told plaintiff that he did not care about plaintiff, that defendant Haug was a Christian, and he had to work on Sunday, so plaintiff would have to work on his Sabbath. Id.
Plaintiff states that he then spoke with defendant Sergeant Daniel King, who told plaintiff that the facility did not have sufficient information about his "way of life," and he gave plaintiff a direct order to report for work on the Sabbath or plaintiff would be "keep-locked and ticketed." AC at p.4. Plaintiff states that on the evening of October 1, 2004, he wrote to defendant Superintendent Woods and filed a grievance complaint about this matter. Id. Plaintiff hoped that he could remedy the situation before he had to report to work the next day. However, plaintiff states that he realized on October 2, 2004 that his letter and grievance were "ineffective" because plaintiff was told to report to the mess hall. Id. Plaintiff claims that he obeyed defendant King's order and reported to work on October 2, 2004, but that plaintiff was so distressed that he was unable to focus on his job, and he ultimately suffered an injury. Id. Plaintiff states that he went to the infirmary, where his injury was treated. Id.
Plaintiff claims that on October 15, 2004, he was afforded a hearing on his grievance, and he was told that according to the Upstate Clergy, there was no information that plaintiff was not supposed to work on the Sabbath. Plaintiff appealed the denial of his grievance, and plaintiff states that he was informed in the October 20, 2004 Superintendent's Response, that the Hebrew Israelite religion was not "officially recognized" by the Department of Correctional Services. Id. However, plaintiff states that, contrary to the Superintendent's response, the Central Office Review Committee (CORC) agreed that Hebrew Israelite inmates should not have to work from sundown Friday to sundown on Saturday. AC at p.5. Plaintiff received the CORC decision on November 17, 2004. Id.
Plaintiff states that during the grievance hearing, he informed the Inmate Grievance Review Committee that he was going to file a lawsuit regarding this incident. Id. Plaintiff spends the rest of the amended complaint detailing incidents in which he believes that the defendants retaliated against him based on his statement that he was going to file a lawsuit. AC at pp.5-8. Plaintiff alleges that on October 27, 2004, defendant Falcon placed plaintiff in keep-lock for no legitimate reason. Plaintiff filed a grievance which was initially denied, but ultimately the CORC stated that "additional investigation" showed that plaintiff was erroneously placed in keep-lock from October 27, 2004 until October 31, 2004. Id. Plaintiff states that in his appeal to the Superintendent, plaintiff stated that he "presume[d] that the unjustified days of keeplock were an attempt of reprisal." AC at p.5.
The second act of alleged retaliation occurred on January 4, 2005, when plaintiff claims that C.O. McGraw "misappropriated" forty seven postage stamps, pens, and candy from plaintiff during a cell search. Id. Plaintiff states that he filed a grievance regarding this incident, however, it was determined that there was "no evidence" to substantiate the allegations." AC at p.6. The CORC affirmed this finding. Id.
Plaintiff claims that after he filed this civil action, defendants subjected plaintiff to "one final display of harassment." Id. Plaintiff alleges that on February 16, 2006, defendant Hall sexually assaulted plaintiff during a pat-frisk by fondling and complimenting plaintiff on his testicles. AC at p.6. Plaintiff states that "after responding defensively" to defendant Halls actions, plaintiff was sent back to his housing unit, and defendant Hall filed a false incident report against plaintiff. Id. Plaintiff states that he knew from prior experience that the grievance program did "not serve as an adversary process against employees," thus, plaintiff complained about this incident directly to the Deputy Superintendent of Security. Id. The Amended Complaint discusses this incident and plaintiff's subsequent complaint about the incident at length. Plaintiff also appears to have mentioned the complaint against defendant Hall during the disciplinary hearing that resulted from the pat-frisk incident. Plaintiff claims that at the time of the Amended Complaint, further investigation was pending regarding plaintiff's claim of sexual assault.*fn2
The Amended Complaint contains three causes of action. AC at pp.8-9. The first cause of action states that the defendants have violated RLUIPA by placing a substantial burden on the exercise of plaintiff's religious rights. AC at p.8. The second cause of action states that "collectively, the officers and administration" forced plaintiff to obey a direct order that violated plaintiff's First Amendment rights. AC at p.8. It appears that plaintiff is also attempting to raise "retaliation" in the second cause of action. Id. Finally, plaintiff's third cause of action appears to be a restatement of his First Amendment and ...