The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
DECISION AND ORDER and ORDER TO SHOW CAUSE PURSUANT TO LOCAL RULE 41.2
This is an action pursuant to 42 U.S.C. § 1983, in which Plaintiff, formerly a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that Defendants, all employees of DOCS, violated his federal constitutional rights. Now before the Court is Defendants' unopposed motion for partial summary judgment [#29]. For the reasons that follow, the application is granted in part and denied in part. Additionally, Plaintiff is directed to show cause why his remaining claims should not be dismissed for failure to prosecute.
Unless otherwise noted, the following are the undisputed facts of this case, viewed in the light most-favorable to Plaintiff, the non-moving party. At all relevant times, Plaintiff was housed at Five Points Correctional Facility ("Five Points"). During the relevant period, Defendant Thomas Poole ("Poole") was the Superintendent at Five Points, Defendant Lawrence W eingartner ("W eingartner") was the Deputy Superintendent, Defendant S.E. Byrne ("Byrne") and Defendant Henry ("Henry") were Corrections Officers, and Defendant Omar Abdel-Rassaq ("Omar") was the Muslim Imam or Chaplain. At all relevant times, Defendant Glenn Goord ("Goord") was the DOCS Commissioner, and Defendant Kenneth McLaughlin ("McLaughlin") was employed by the Office of the New York State Inspector General.
On June 22, 2005, Plaintiff was assigned to a new cell at Five Points, in which there was no mattress. Plaintiff complained about the missing mattress to several corrections officers, including Defendant Henry. Plaintiff received a mattress the next day.
On July 4, 2005, Plaintiff filed an inmate grievance, stating that he was a Muslim, and that he did not want to be double-bunked with his non-Muslim cell-mate, since the man had photographs of family members displayed, which prevented Plaintiff from praying. The Inmate Grievance Review Committee ("IGRC") denied the appeal, and Poole affirmed the IGRC's decision.
Sometime prior to July 2005, Plaintiff successfully settled a lawsuit in which Byrne was a defendant. On July 28, 2005, Byrne wrote a misbehavior report against Plaintiff, charging him with harassment. Plaintiff was subsequently found guilty of the charge and sentenced to twenty-five days in Keeplock, with loss of privileges. As discussed further below, Plaintiff wrote a letter to the Office of the New York State Inspector General, complaining about Byrne's alleged retaliation. Although the details are not clear from the record, the Inspector General's office initiated some type of investigation. However, Plaintiff was not satisfied with the result. Poole also investigated and found no evidence to substantiate the allegation. (See, Letter of Lucien J. Leclaire, Jr. Deputy DOCS Commissioner, dated August 23, 2005).
On August 8, 2005, Plaintiff filed a grievance, complaining that he was not being allowed to purchase Muslim oil from a particular mail-order supplier. The IGRC denied the grievance, finding that Plaintiff was required, by DOCS Directive 4911, to obtain such oil from the facility Imam. In that regard, Five Points's Policies and Procedures, Policy Number 23.1, states, in relevant part: "The facility Imam will provide access to religious oils through a community fund raiser. As per DOCS Directive #4911, Section IV, Paragraph K, the Superintendent has approved the facility Imam as the only approved source for Islamic oils." (Defendant's Rule 26 Disclosures, Exhibit B). Poole affirmed the IGRC's ruling.
On November 8, 2005, Imam Omar sent a memo to Weingartner, advising him that he was suspending Plaintiff, along with four other inmates, from Muslim community call-outs, "due to their misbehavior and continuance [sic] disturbance of the Muslim community programs and activities." On November 10, 2005, Plaintiff filed an inmate grievance, complaining that Omar had "unjustly" removed Plaintiff's name from the call-out list for Islamic classes and "Friday Jummah Services." As part of the grievance, Plaintiff also asked that he be provided with "fasting food for 6 days of Shawwal." Plaintiff did not indicate that he had previously requested or been denied such food. The IGRC denied the grievance, and Poole affirmed the decision, stating: "Imam Omar removed you from the call out based on a disturbance you caused within the Muslim community. You were advised to write to the Imam and resolve the issue. Appeal denied."
On May 23, 2006, Plaintiff, proceeding pro se, commenced this action. On March 8, 2007, Plaintiff filed an Amended Complaint, Docket No. [#6] ("the Complaint"). The Complaint purports to state the following claims: 1) a claim that Henry deprived Plaintiff of a mattress on one occasion; 2) a claim that Byrne retaliated against Plaintiff by filing a false misbehavior report against him; 3) a claim that Omar violated Plaintiff's rights to religious freedom and due process, by removing him from the Muslim call-out list, resulting in Plaintiff missing Friday Jummah prayer services and religious instruction over a period of three weeks, and by denying him religious meals; 4) a claim that W eingartner permitted Omar to violate Plaintiff's rights of religious freedom and due process; 5) a claim that Poole permitted Byrne to retaliate against him, and permitted Omar and Weingartner to violate his rights to religious freedom and due process, and that Poole further violated Plaintiff's religious rights by allowing him to be double-bunked with a non-Muslim cell mate and by preventing him from receiving Muslim oils through the mail; 6) a claim that Goord failed to prevent retaliation by Byrne, and permitted violations of Plaintiff's religious rights; and 7) a claim that McLaughlin failed to properly investigate Plaintiff's retaliation complaint against Byrne.
On June 25, 2008, Omar filed his sworn responses to Plaintiff's Request for Deposition Upon Written Questions. (Docket No. [#27]). Omar stated in relevant part: "On November 8, 2005, C. Neal was suspended from Muslim community call outs due to misbehavior and disturbance of the Muslim community programs and activities. . . . Directive 4202 sets out the procedure for managing religious services. The inmates and plaintiff were not suspended from practicing their religious faith only from call outs to participate in religious services."
On November 25, 2008, Defendants filed the subject motion for summary judgment. Defendants contend that they are entitled to judgment for the following reasons: 1) Plaintiff lacks standing to challenge his removal from Muslim services, since such removal "was due to Plaintiff's own misbehavior and disturbances"; 2) Plaintiff's First Amendment religious freedom claims must be dismissed, since Plaintiff did not have a sincerely-held belief in the Muslim faith, since Defendants did not substantially burden Plaintiff's beliefs, and since Defendants acted reasonably; 3) the claims against Goord, Poole, and McLaughlin must be dismissed for lack of personal involvement; 4) Defendants are entitled to qualified immunity on the claim involving double-bunking with non-Muslim cell mates; and 5) Plaintiff cannot recover compensatory damages, since he suffered no physical injury. Defendants also contend that the claim against C.O. Henry must be dismissed, pursuant to FRCP 4(m), for failure to effect service. Along with their motion, Defendants served Plaintiff with an Irby notice, advising him, inter alia, that his claims could be dismissed unless he responded with "sworn affidavits or other papers as required by Rule 56(e)." (Docket No. [#32]).
On February 5, 2009, the Court issued a Motion Scheduling Order [#34], directing Plaintiff to file and serve any response to the summary judgment motion on or before March 6, 2009. On February 9, 2009, the Court issued a Decision and Order [#35], denying Plaintiff's motion for appointment of counsel, and reiterating that he had to "comply with the scheduling deadlines set forth in the Motion Scheduling Order (Docket No. [#34]) filed on February 5, 2009." On May 18, 2009, the Court issued an Amended Motion Scheduling Order [#36], noting that ...