The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action, pursuant to 42 U.S.C. § 1983 brought by plaintiff Dontie Mitchell ("Plaintiff"), a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"), against DOCS and various DOCS employees. Now before the Court is Plaintiff's motion [#37] for preliminary injunctive relief. For the reasons that follow, the application is denied.
In this action, Plaintiff alleges the following: 1) DOCS Inmate Grievance Program is unfair and ineffective; 2) DOCS staff misuse the prison disciplinary system to harass inmates; 3) DOCS provides an unsafe and psychologically damaging living environment; 4) DOCS employees misuse mechanical restraints; 5) Southport Correctional Facility's ("Southport") Mail Room Supervisor violates DOCS rules concerning inmate mail; 6) DOCS denies inmates belonging to the Nation of Islam*fn1 ("NOI") religion a diet that conforms with their beliefs; and 7) Officials at Southport denied Plaintiff religious meals on two occasions.
On April 10, 2008, Plaintiff filed the subject motion [#37] for preliminary injunctive relief. At the time he filed the motion, Plaintiff was housed at Southport. Plaintiff's application concerns alleged mail tampering and the alleged failure to provide an appropriate religious diet. Specifically as to mail, Plaintiff alleges that on a few occasions, Southport's Mail Room Supervisor failed to deliver legal mail sent to him from an attorney named Charles Carbone ("Carbone"). Plaintiff also alleges that a DOCS directive, Directive 4422, which permits inmates to receive not more than five pages of photocopies in regular correspondence, is unconstitutional. Plaintiff seeks an injunction requiring DOCS to reassign the Mail Room Supervisor and to rescind the five-page photocopy rule. As to his religious diet claim, Plaintiff states that "the Nation of Islam has specific dietary laws its members are required to follow. We are not supposed to eat white bread or rice, unkosher meats (if any), soy bean products, kidney beans, collard greens, processed meats, and other food items often served to us." (Motion [#37] at 2). Plaintiff seeks an injunction requiring DOCS to provide him with meals that conform to "the dietary laws of the Nation of Islam as set forth in How to Eat to Live, Volumes 1 and 2, by the Honorable Elijah Muhammad." (Motion [#37]).
On June 20, 2008, Defendants filed responsive papers.*fn2 Concerning Plaintiff's mail claims, Defendants submitted an affidavit from Angela Bartlett ("Bartlett"), the Deputy Superintendent for Programs at Southport. Bartlett states that pursuant to DOCS Directive 4422, "printed or photocopied material in excess of five pages are not permitted when arriving within regular correspondence." (Bartlett Aff. ¶ 7). Bartlett further indicates that "[c]orrespondents often use return addresses that look like legal entities to avoid . . . [the] five page limits." ( Id . at ¶ 13). Bartlett states that in March 2008, Plaintiff received correspondence from an organization known as "MIM," which contained photocopied material in excess of five pages. (Id. at ¶ 14). The excess materials were returned to the sender. ( Id .). With regard to legal mail from Carbone, Bartlett states that in or about March 2008, certain mail from Carbone was delayed in arriving at Southport because it had to be forwarded from Plaintiff's previous correctional facility. ( Id . at ¶ 8). Subsequently, there was a further delay because officials at Southport were not sure that Carbone was a legitimate legal entity. ( Id .). Bartlett states that in or about March 2008, other correspondence was sent to Plaintiff by Carbone, and officials at Southport sent the correspondence to Southport's Superintendent for review, since "the contents did not appear to be legal in nature." ( Id . at ¶ 9). The Superintended subsequently reviewed the materials and had them delivered to Plaintiff. Bartlett states that in April 2008, Southport received more correspondence purportedly sent to Plaintiff from Carbone. Corrections staff opened the correspondence in Plaintiff's presence, and then requested permission from DOCS's Counsel's office to investigate whether the materials were legal in nature. Bartlett suspected that "Plaintiff and his correspondents were using Charles Carbone's name on privileged correspondence to avoid the five page limit applicable to general correspondence." (Id. at ¶ 19). Bartlett called Carbone's office several times, but Carbone did not return her calls. ( Id .). Officials at Southport subsequently removed non-legal materials and delivered the legal materials to Plaintiff. ( Id . at ¶ 10). Finally, Bartlett states that in May 2008, Plaintiff received correspondence from an entity known as "Collective Legal Services," which did not appear to be legal in nature. Officials in DOCS's Counsel's office determined that Collective Legal Services was not a legal entity, and that the mail was not legal mail, and they forwarded the mail to Plaintiff as general correspondence. ( Id . at ¶ ¶ 12, 20).
Defendants also submitted an affidavit from Benjamin Rondeau ("Rondeau"), an associate attorney in DOCS's Counsel's office. Rondeau states that the five-page limit on photocopies in general correspondence promotes security in the prisons. In that regard, he states that "[p]rior to implementation of the 5 page limit large amounts of contraband was secreted between pages of printed or photocopied materials and sent to DOCS inmates via general correspondence which required extensive searching of such materials and contraband entering DOCS facilities." [sic] (Rondeau Aff. ¶ 2). As for Plaintiff's correspondence, Rondeau states that Bartlett contacted his office several times concerning correspondence allegedly sent by Carbone. Rondeau states that certain correspondence purportedly sent by Carbone was suspicious because it bore a return address in Oakland, California, while Carbone's office is in San Francisco. ( Id . at ¶ 6). According to Rondeau, "Bartlett was legitimately concerned that Charles Carbone's name was being used in an attempt to circumvent the five page limit." ( Id .). Rondeau also states that in response to an inquiry from Bartlett, he determined that "Collective Legal Services" was not a bona fide "entity providing legal services." ( Id . at ¶ 7).
Defendants submitted no affidavits concerning Plaintiff's religious diet claim. Instead, Defendants' counsel states that "insofar as plaintiff is seeking an Order directing DOCS to provide him with meals that conform to the dietary laws of the Nation of Islam, his Motion must be denied as he cannot show a likelihood of success on the merits." (Bove Decl. ¶ 3). Defendants' counsel further states that "[t]he dietary component of plaintiff's (equal protection) claims against DOCS has been considered and ultimately rejected in several cases within the Second Circuit, Muhammad v. Warithu-Deen Umar , 98 F.Supp.2d 337 (W.D.N.Y. 2000) citing, Allah v. Kelly , 1999 U.S. Dist. LEXIS 21776, (W.D.N.Y. 1999); Abdul-Malik v. Goord , 1997 U.S. Dist. LEXIS 2047 (S.D.N.Y. 1997)." [sic] (Defendants' Memo of Law [#44] at 5).
On August 25, 2008, Plaintiff submitted a reply memo of law. In the reply, Plaintiff indicates, in relevant part, that his mail claim is actually broader than the incidents described in his original moving papers. However, the Court declines to consider the additional allegations concerning mail tampering, since they were raised for the first time in a reply brief.
On October 15, 2008 Defendants filed a sur-reply (Docket [#46]), stating that Plaintiff has been transferred from Southport to Elmira Correctional Facility ("Elmira"). Defendants contend that Plaintiff's request for injunctive relief concerning mail claims is now moot, since he is no longer housed at Southport.
The standard to be applied when considering an application for a preliminary injunction is well settled:
A party seeking a preliminary injunction ordinarily must show: (1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's favor. When the movant seeks a 'mandatory' injunction-that is, as in this case, an injunction that will alter rather than maintain the status ...