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Johnson v. Killian

April 21, 2009


The opinion of the court was delivered by: Layra Taylor Swain, Usdj


Pro se Plaintiffs Neil Johnson ("Johnson"), Devon Pandy ("Pandy"), Hiawata Burks ("Burks"), Ronald Counts ("Counts"), Jude Fernand ("Fernand"), Kasey Harge ("Harge"), Carl Stevens ("Stevens"), Robert Taylor ("Taylor") and Kevin Washington ("Washington"), seeking monetary and declaratory relief on behalf of themselves and a putative class of Sunni Muslim inmates at the Federal Correctional Institution at Otisville, New York ("FCI Otisville"), bring this action pursuant to the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, and the First Amendment of the United States Constitution, claiming that Defendants Warden J. Killian ("Killian"), Rabbi Laskin ("Laskin"), and Case Manager D. Wynkoop ("Wynkoop") (collectively, "Defendants"), placed a substantial burden on the practice of their Muslim religion and infringed upon their free exercise of religion by limiting congregational group prayer within FCI Otisville (hereinafter "RFRA claims" and "First Amendment prayer policy claims"). Plaintiffs also bring claims under the First Amendment based on Plaintiff Neil Johnson's ("Johnson") transfer out of FCI Otisville, allegedly in retaliation for Johnson's attempts to redress his grievances and in an attempt to moot the present lawsuit (hereinafter "First Amendment retaliation claims"). Defendants move, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, for dismissal all of Plaintiffs' claims except for Johnson's First Amendment retaliation claims against Wynkoop. In their opposition papers, Plaintiffs cross-move for summary judgment, on the basis that the prayer policies allegedly implemented by Defendants at FCI Otisville were not authorized by national Bureau of Prisons ("BOP") policies.

Defendants' motion papers were accompanied by a Statement pursuant to S.D.N.Y. Local Civil Rule 56.1, as well as a Notice to Pro Se Litigant Opposing Motion for Summary Judgment, as required by Local Civil Rule 56.2, and a number of evidentiary submissions. Although Plaintiffs have not submitted the required response to Defendants' Rule 56.1 Statement and Defendants' factual proffers could, for that reason, be taken as admitted under Local Civil Rule 56.1(c), the Court has examined carefully Plaintiffs' memorandum and evidentiary proffers in determining whether there are any genuine issues of material fact. The Court has also considered carefully all of the parties' submissions. For the reasons explained below, all of Plaintiffs' claims are dismissed (without prejudice as to certain Plaintiffs' claims), except for Plaintiff Johnson's First Amendment retaliation claim against Defendant Wynkoop; and Plaintiffs' cross-motion is denied.


Plaintiffs' allegations, as presented in the Plaintiffs' First Amended Complaint (the "FAC"), are summarized briefly. Before Defendant Killian became warden of the Federal Correctional Institution in Otisville, New York ("FCI Otisville") in 2007, there was an inconsistently-enforced policy that generally restricted Muslim inmates' ability to perform regular congregational prayers. (FAC ¶ 5.) After Killian's arrival, however, a policy was consistently enforced whereby Muslim prisoners could only perform a congregational prayer one time a day, five days a week, in the chapel. According to Plaintiffs, however, they are required by their religious beliefs to participate in congregational prayer five times a day. Plaintiffs additionally allege that they were unable to conduct individual prayers in their own cells in proper adherence to their religious tenets, because of, inter alia, the restrictive size of the cells and the nearby depiction of images. (Id. ¶¶ 7-12.) On April 12, 2007, after an attempted group prayer meeting was halted by a corrections officer, Johnson's case manager, Defendant Wynkoop, threatened to write Johnson an incident report if he attempted to participate in group prayer again. Johnson said that he would file a suit in court, Wynkoop responded, "Why don't you do that" and, on June 6, 2007, Johnson filed the instant suit. (FAC ¶ 14.) A few days later, Johnson learned that he was to be transferred to the Federal Correctional Institution in Elkton, Ohio ("FCI Elkton"), even though he had previously indicated twice to Wynkoop that, if eligible for a transfer, Johnson would prefer to be transferred closer to Connecticut where his family resides. (Id. ¶¶ 15, 18-19.)

The parties have submitted evidentiary proffers in connection with the motions for summary judgment and, unless otherwise stated, the following relevant facts are undisputed. Inmate grievance procedures at FCI Otisville consist of four stages: (1) an informal appeal to staff; (2) a written request to the Warden; (3) an appeal to the Regional Director; and (4) an appeal to the General Counsel. (Decl. of Elisa Mason dated Aug. 28, 2008, at ¶ 13.) Seven of the named Plaintiffs -- Burks, Counts, Fernand, Harge, Stevens, Taylor and Washington -- have not filed any administrative grievance concerning restrictions on congregational prayer at FCI Otisville. (Mason Decl. ¶¶ 14, 15.) Plaintiffs Johnson and Pandy filed administrative grievances concerning limitations on congregational prayer at FCI-Otisville in 2005, but their requests were denied and appealed to the fullest extent possible. (Id. ¶¶ 16-19; Exs. B, C.) According to Plaintiffs' opposition papers, Johnson and Pandy did not file suit in 2005 because prison officials nonetheless stopped interfering with congregational prayers after their administrative remedies had been exhausted. (Opp'n at 4.) Warden Killian took office in April 2007 (Mason Decl. ¶ 6), and Johnson and Pandy did not thereafter file any administrative grievance concerning the prayer policies enforced by Killian. (Id. ¶¶ 17-19.)

Plaintiff Johnson was transferred to FCI Elkton on August 28, 2007. (Mason Decl. ¶ 10.) Plaintiffs Harge, Fernand and Stevens were each released from BOP custody sometime between March and July 2008. (Id. ¶ 12.) Plaintiffs Pandy, Burks, Counts, Taylor and Washington remain at FCI Otisville.


Summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure is to be granted in favor of the moving party when "the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the burden of establishing that no genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). However, as the Second Circuit has explained, it is not enough for the party opposing summary judgment to show that "'some metaphysical doubt as to the material facts'" exists. Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, the nonmoving party must proffer specific facts showing the existence of a genuine issue for trial. Id. "[M]ere conclusory allegations, speculation or conjecture," will not provide a sufficient basis for a non-moving party to resist summary judgment. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). On cross-motions for summary judgment, "the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 314 (2d Cir. 1981).

The Prison Litigation Reform Act of 1995 (the "PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a) (West 2003). This exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Prisoners must exhaust administrative remedies even if they believe that administrative remedies would be ineffective or futile. Harris v. Bowden, No. 03 Civ. 1617 (LAP), 2006 WL 738110, at *2 (S.D.N.Y. March 23, 2006). Furthermore, the PLRA requires "proper exhaustion," that is, a prisoner must follow the system's procedural rules because the "benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance." Macias v. Zenk, 495 F.3d 37, 41 (2d Cir 2007) (interpreting Woodford v. Ngo, 548 U.S. 81, 93-95 (2006)).

The Second Circuit has recognized exceptions to the exhaustion rule where a prisoner plaintiff plausibly seeks to counter defendants' contentions that the prisoner has failed to exhaust available administrative remedies as required by the PLRA. See Hemphill v. New York, 380 F.3d 680,686 (2d Cir 2004). First, a court should consider whether administrative remedies were unavailable. Id. Second, a court should inquire into whether the defendant's actions, by threat or otherwise, inhibited the inmate's exhaustion remedies, so as to estop the defendant from raising as a defense the plaintiff's failure to exhaust. Id. Third, a court should consider whether there are "special circumstances" that plausibly justify the prisoner's failure to comply with administrative procedure, such as a reasonable misinterpretation of the prison system's regulations. Id. at 686, 689. The existence of such special circumstances "must be determined by looking at circumstances which might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way." Giano v. Goord, 380 F.3d 670, 678 (2d Cir. 2004).

Typically, the dismissal of a claim for failure to exhaust administrative remedies is without prejudice, since a "prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit." Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (quoting Snider v. Melindez, 199 F.3d 108, 111-112 (2d Cir. 1999)). However, "where exhaustion was required but administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust," dismissal with prejudice is warranted. Id. at 88.

Plaintiffs' RFRA and First Amendment Prayer Policy Claims are Asserted Only Against Defendants Killian and Laskin, and the First Amendment Retaliation Claim is Asserted Only Against Defendant Wynkoop by Plaintiff Johnson

Plaintiffs' opposition papers confirm that the RFRA and First Amendment prayer policy claims are intended to be asserted only against Defendants Killian and Laskin, and that the First Amendment retaliation claims are asserted only against Defendant Wynkoop. (Opp'n at 1.) Plaintiffs further clarify that the First Amendment retaliation claims against Wynkoop are asserted only on behalf of Plaintiff Johnson. (Id.) Accordingly, the FAC is dismissed without prejudice insofar as it appears to assert RFRA and First Amendment prayer policy claims against Defendant Wynkoop, First Amendment ...

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