The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Keith Terrell Butler ("Butler"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, two DOCS employees, violated his constitutional rights under the First, Eighth, and Fourteenth Amendments*fn2. Compl. (Dkt. No. 1). Presently pending are (1) Butler's motion for summary judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 36), and (2) defendants' cross-motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) (Dkt. No. 40). Butler has also requested to amend his Statement of Material Facts.*fn3 Dkt. No. 44. For the following reasons, it is recommended that Butler's motions be denied and that, converted to a motion for summary judgment, defendants' cross-motion be granted.
The facts are related herein in the light most favorable to Butler.
At all relevant times, Butler was incarcerated at Upstate Correctional Facility ("Upstate"). Compl. ¶ 2. On November 7, 2007, defendant Hyde, a corrections officer, served Butler a kosher meal which was infested with little black bugs. Id. ¶ 6. Defendant Hogue, another corrections officer, made a joke about the bugs and then began laughing with Hyde. Id. On November 8, 2007, Hyde served Butler kosher soup, which had two pen holes in the cup. Dkt. No. 36 at 22. Hyde refused to give him a new cup of soup. Id. at 22.
Butler filed a grievance on November 15, 2007 concerning his insect-contaminated soup. Dkt. No. 36 at 23. The grievance was denied by the superintendent as "no evidence was found to support [Butler's]... allegations...." Id. at 23. The grievance was appealed, and affirmed by the Central Office Review Committee, again noting that there was "no indication that [Butler's] soup was contaminated or tampered with...." Id. at 25. Additionally, during November and December of 2007, Butler authored multiple letters regarding the events of November 7 and 8. Id. at 31 (letter to Inspector General), 32 (letter to rabbi concerning the events of November 7), 35 (letter to New York State Police regarding the events of November 7), 38 (letter to Food Administration Services regarding events of November 7), 39 (letter to Inmate Grievance Program regarding prior grievances and the events of November 7).
Two days after receiving the contaminated meal, Butler went to sick call complaining of a sore throat. Dkt. No. 36 at 16. He was examined and noted to have no indication for treatment, no patches, and no swelling. Id. Butler was scheduled to see a physician for complaints of a chronic sore throat. Id. From November 20, 2007 until November 30, 2007, Butler was seen by medical staff with complaints of a sore throat six times. Id. at 12-14. Butler was continually told to gargle with salt water, given medication to lessen his symptoms, told to increase his level of hydration, and rest his voice. Id. at 12-14. This action followed.
Butler moves for summary judgment based upon the fact that defendants served him an insect-infested religious meal and a soup cup with holes in it. Defendants move for judgment on the pleadings on the grounds that (1) the failure to provide two religious meals fails to establish a First Amendment violation and (2) defendants' alleged obnoxious or demeaning comments were insufficient to sustain a § 1983 claim.
In this case, in response to Butler's motion for summary judgment, defendants filed a motion for judgment on the pleadings. At the close of the pleadings, a request for dismissal for failure to state a claim may be brought as a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). See generally Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983)). "The test for evaluating a 12(c) motion is the same as that applicable to a motion to dismiss under Fed. R. Civ. P. 12(b)(6)." Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Burke v. New York, 25 F. Supp. 2d 97, 99 (N.D.N.Y. 1998) (Munson, J.). On a motion under Rule 12(c), a determination must be made based solely on the allegations of the complaint and answer and any documents necessarily incorporated therein by reference. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006).
Butler has submitted various documents outside the pleadings in support of his motion, seeking summary judgment. Those documents have been referenced by defendants and considered by the Court. Thus, since defendants' motion has moved beyond consideration of the complaint and answer, that motion must be converted to one for summary judgment. Cleveland, 448 F.3d at 521 ("A court may indeed convert a motion for judgment on the pleadings into a motion for summary judgment if matters outside the pleadings are presented to and not excluded by the court.") (internal quotation marks and citation omitted). Generally, a district court should give parties specific notice of its intent to convert a motion to dismiss into a motion for summary judgment unless "the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment...." See e.g., In re G.&A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985). For example "where only the party moving... has submitted extrinsic material... the opposing party may be deemed to have had adequate notice that the motion... would be converted." Id. (citations omitted). In this case, defendants received Butler's motion six weeks before they filed their own. See Dkt. Sheet. Butler's motion was titled and docketed as a motion to dismiss and it included extrinsic evidence as exhibits. Thus, defendants were fully aware of the potential for the Court to convert the motion, and should have reasonably expected as much.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. ...