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Robert Cardew and Barry Arkim v. Joseph F. Bellnier

December 9, 2010

ROBERT CARDEW AND BARRY ARKIM, PLAINTIFFS,
v.
JOSEPH F. BELLNIER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge

REPORT AND RECOMMENDATION

This matter was referred by U.S. District Judge Gary L. Sharpe, for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). The case was transferred to me on January 4, 2010, following the retirement of U.S. Magistrate Judge Gustave J. Di Bianco. (Dkt. No. 52).

In this civil rights complaint, plaintiffs allege that defendants have implemented a policy of segregation in double occupancy housing assignments that violates the Equal Protection Clause and the right to practice one's religion as protected by the First Amendment. Plaintiffs also argue that defendants' policy of serving "non-red-meat meals" on Fridays during Lent and the Catholic holiday of Ash Wednesday, compels plaintiffs, who are not Catholic, to participate in a "Catholic Religious Dietary Ritual" in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5. Plaintiffs seek significant monetary damages, as well as injunctive relief.

Presently before the court is defendants' motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 107). For the following reasons, this court concludes that defendants' motion as to plaintiffs' Equal Protection claim should not be granted in its entirety. However, defendants' dietary policy did not violate plaintiffs' rights under the First Amendment or under RLUIPA. Accordingly, this court recommends granting defendants' motion in part and denying it in part.

I. Facts and Contentions

A. Double Bunking Policy

Plaintiff Cardew was transferred to Upstate Correctional Facility (Upstate) on January 11, 2008, where he was provided with a medical permit for a bottom bunk. Plaintiff Cardew alleges that he was told that he would be placed in a Double Occupancy Housing Unit (DOHU) by himself because there was no other inmate who fit the Department of Correctional Services (DOCS) DOHU policy for sharing a cell with plaintiff Cardew. (Compl. ¶¶ 44--45). Cardew alleges that he was advised that there was no other inmate of Cardew's race who weighed as much as Cardew, with whom he could be double-celled. (Dkt. No. 107-3 at 5--6).*fn1

Cardew submitted a grievance (Grievance No. UST-34086-08), alleging that the DOHU policy was discriminatory because race and physical size were used as criteria for DOHU assignments. Id.

An investigation was conducted on January 17, 2008, which reported that Cardew's "assessment has been completed and, due to safety and security reasons, [Cardew] has been single celled." (Dkt. No. 107-3 at 9) (emphasis added). The Inmate Grievance Review Committee (IGRC) denied Grievance No. UST-34086-08 on January 24, 2008, stating that "Albany Central Office of Classification & Movement shall be responsible for the selection of inmates for double cell housing." (Dkt. No. 107-3 at 7). Cardew appealed this decision to the Superintendent. Id. Superintendent Woods denied Cardew's appeal of Grievance No. UST-34086-08 on January 29, 2008, indicating that "cell assignments are made at the discretion of security staff" according to criteria found in the Special Housing Unit (SHU) Manual, and "this procedure will not be changed." (Dkt. No. 107-3, p. 8). Cardew appealed the superintendent's decision on Grievance No. UST-34086-08 to the Central Office Review Committee (CORC). The CORC's decision affirmed the denial of the grievance and noted that Upstate's "SHU Manual clearly indicates that it is not necessary that inmates share the same ethnic or religious background in a double cell." (Dkt. No. 107-3 at 1).

On December 30, 2008, Cardew was transferred to from Upstate to Wende Correctional Facility (Wende), and was initially placed in a DOHU with an inmate of another ethnic and religious background. (Compl. ¶ 55). However, the next day, on December 31, 2008, Cardew was removed from his DOHU and placed in a Single-Occupancy Housing Unit (SOHU), after staff allegedly told him he could not share a cell with an inmate of another ethnic and religious background. (Compl. ¶ 56).

On February 4 and 13, 2009, plaintiffs Cardew and Arkim submitted individual "volunteer to double cell" requests, which were denied on February 25, 2009. (Compl. ¶¶ 56--57). Cardew filed a grievance (Grievance No. WDE-30294-09) on February 25, 2009, alleging that he was again the victim of discrimination due to the denial of the double cell request. (Compl. ¶ 59). The IGRC denied Grievance No. WDE-30294-09 on March 2, 2009, stating that the IGRC could not advise security on how to house inmates. (Compl. ¶ 60). Cardew appealed the decision to Superintendent Kirkpatrick, who denied the appeal of Grievance No. WDE-30294-09 on March 5, 2009, stating that the double cell request was denied because Cardew was over the size limit for a DOHU. (Compl. ¶ 61; Pls.' Ex. 4). The CORC upheld the superintendent's determination, stating that "although the grievant meets the physical size*fn2 requirements to be double celled," the Deputy Superintendent for Security "appropriately utilized his discretion" when he disapproved Cardew's request to double cell, and that "[t]here is no evidence of racial or religious discrimination . . . this decision was based upon the grievant's extensive disciplinary history and several placements in protective custody . . . grievant is not entitled to be housed in the cell of his choice." (Pls.' Ex. 5) (emphasis added).

Arkim submitted his own grievance (Grievance No. WDE-30401-09) on March 9, 2009, alleging discrimination on the basis of ethnicity and religion as to the denial of a DOHU for himself and Cardew. (Compl. ¶ 62). Plaintiffs claim that on March 12, 2009, the IGRC recommended that Arkim and Cardew should be allowed to be placed in a DOHU together. (Compl. ¶ 64).

Cardew submitted another grievance (Grievance No. WDE-30390-09) on March 10, 2009, alleging that defendant Kirkpatrick "intentionally lied" when he denied the appeal of Grievance No. WDE-30294-09, and stated that Cardew was over the size limit to be placed in a DOHU. (Compl. ¶ 63). Superintendent Kirkpatrick personally interviewed Cardew on March 16, 2009, and told him that security concerns were the reason for denying Grievance No. WDE-30294-09 and for the denial of a DOHU assignment. (Compl. ¶ 65). Superintendent Kirkpatrick also explained that the DOHU criteria, which include consideration of ethnicity and religion, are under the discretion of defendants Sticht (Deputy Superintendent for Security at Wende), Kearney (Corrections Captain at Wende), and Casaceli (Corrections Captain at Wende). (Compl. ¶ 65). After his conversation with Superintendent Kirkpatrick, Cardew submitted another grievance (Grievance No. WDE-30447-09) on March 17, 2009, again alleging discrimination. (Compl. ¶ 66). On March 19, 2009, Superintendent Kirkpatrick denied Grievance No. WDE-30390-09. (Compl. ¶ 67; Pls.' Ex. 10).

Cardew appealed the superintendent's decision on Grievance No. WDE-30294-09 to the CORC. The CORC upheld the superintendent's decision on April 8, 2009, stating that there was no evidence of racial or religious discrimination, and that Deputy Superintendent Sticht exercised his discretion in denying a DOHU to Cardew and Arkim, notwithstanding that Cardew now met the physical criterion for DOHU placement. (Compl. ¶ 71; Pls' Ex. 5). The CORC also stated that the request was denied "based upon the grievant's extensive disciplinary history and several placements in protective custody." Id. (emphasis added). On April 22, 2009, the CORC upheld the superintendent's determination of Grievance No. WDE-30390-09, reciting the same reasons included in their denial of Grievance No. WDE-30294-09. (Compl. ¶ 72; Pls.' Ex. 11).

Superintendent Kirkpatrick allegedly reversed*fn3 the IGRC's recommendation to Arkim's Grievance No. WDE-30401-09 that Arkim and Cardew be allowed to double cell on March 20, 2009, indicating that Cardew and Arkim's double housing request was denied for safety and security reasons. (Compl. ¶ 68; Pls.'

Ex. 7). Arkim appealed the superintendent's decision of Grievance No. WDE-30401-09 to the CORC, who upheld the superintendent's decision on April 22, 2009, stating that the Deputy Superintendent for Security appropriately utilized his discretion in denying Cardew and Arkim a DOHU assignment due to safety and security reasons and that the CORC was not presented with sufficient evidence of racial or religious discrimination. (Compl. ¶ 73; Pls.' Ex. 8).

On March 26, 2009, the IGRC denied Cardew's Grievance No. WDE-30447-09, stating that DOHU assignments are made at the discretion of Deputy Superintendent Sticht. (Compl. ¶ 69). Cardew appealed the decision of the IGRC on Grievance No. WDE-30447-09 to the superintendent, who denied the appeal on April 3, 2009, indicating the denial was due to security reasons. (Compl. ¶ 70; Pls.' Ex. 12). Cardew appealed, and the CORC upheld the superintendant's decision on Grievance No. WDE-30447-09 on May 6, 2009, repeating the same reasoning given in their decision on Grievance No. WDE-30294-09, and citing their decision on Grievance No. UST-34086-08, again reaffirming that due to Cardew's "extensive disciplinary history and several placements in protective custody," he was placed in a single cell for "safety and security reasons." (Compl. ¶ 74; Pls.' Ex. 13) (emphasis added).

On May 6, 2009, Captain Casaceli allegedly sent Arkim a memo, which stated that if Arkim would change his program assignment, Casaceli would grant him a DOHU with Cardew. (Compl. ¶ 75). Captain Casaceli allegedly then sent Arkim another memo on May 15, 2009, indicating that Arkim and Cardew would not be granted a DOHU together, and instructed Arkim to retain his program assignment. (Compl. ¶ 75).

For their first cause of action, plaintiffs contend that the above history constitutes evidence of a policy and practice of discrimination in DOHU assignments based on ethnicity and religion in violation of the Equal Protection Clause. Plaintiffs' second cause of action claims that, because the determination of whether two inmates may be double-celled includes a consideration of their religious affiliations, the policy also violates the Establishment Clause. Plaintiffs allege that the policy has the effect of "endorsing religion over non-religion, and giving preferential treatment over other religions and non-religion." (Compl. ¶ 84).

B. Dietary Policy

Plaintiffs' third and fourth causes of action are based on DOCS' alleged dietary practices. Cardew submitted Grievance No. UST-34303-08 on February 4, 2008, while he was still at Upstate. (Compl. ¶ 86). The grievance was based on an alleged change in the menu for February 6, 2008. (Compl. ¶ 86). Plaintiffs claim that there was no red meat on the February 6, 2008 menu, because it was Ash Wednesday. (Compl. ¶ 86--87). Red meat was also missing from the menu on every Friday that year during the Lenten season. (Compl. ¶ 86--87).

The IGRC denied Cardew's Grievance No. UST-34303-08 on February 14, 2008, indicating that Ash Wednesday is a "major holiday" like July 4 or Labor Day. (Compl. ¶ 88). On February 22, 2008, Superintendent Woods denied Cardew's appeal of Grievance No. UST-34303-08, indicating that "the holidays that are listed on the menu are the same major holidays that are listed on a regular calendar. For example[,] Ash Wednesday, Thanksgiving, July 4, Labor Day, etc.," and that the same menu that was served on Ash Wednesday was also served on other dates. (Compl. ¶ 90; Pls.' Ex. 15). The Deputy Commissioner for Program Services, defendant Perlman, told Cardew in a letter dated February 21, 2008, that defendant Dean, the Director of Nutritional Services, is in charge of DOCS' statewide menu, and that Cardew's complaint was referred to him. (Compl. ¶ 89; Pls.' Ex. 41). Defendant Dean notified Cardew by letter, stating that the Ash Wednesday meal has been the same for many years. (Compl. ¶ 91). Cardew appealed the superintendent's decision to the CORC, who affirmed the superintendent's decision on March 26, 2008. (Compl. ¶ 92; Pls.' Ex. 16).

Cardew filed a similar grievance (Grievance No. WDE-30296-09) the next year on February 24, 2009, while he was at Wende, complaining that the DOCS statewide menu required all inmates to "participate in the Catholic religious dietary ritual of not eating red meat on the first day of Lent and they [are] not given the option of opting out." (Compl. ¶ 93). On March 4, 2009, the IGRC stated that the local food service administrator has no control over the statewide menu, and food comes from the Food Production Center. (Compl. ¶ 95). The IGRC allegedly also noted that if the menu was changed to accommodate the Catholic tradition of no red meat on Ash Wednesday, then "at least through appearances," DOCS would be showing preference for the Catholic religion. (Compl. ¶ 95). Superintendent Kirkpatrick denied the appeal of Grievance No. WDE-30296-09 on March 5, 2009, citing the CORC response to Grievance No. UST-35637-08 and stating that "there is no indication on the menu that red meat is not served on Fridays because of the Catholic religion." (Compl. ¶ 96; Pls.' Ex. 18).

The Deputy Commissioner for Program Services, defendant Perlman, sent Cardew a letter dated March 12, 2009, indicating that the Office of Nutritional Services "attempts to accommodate the majority of the population observances on major holidays and religious days such as Christmas and the Fourth of July" and referred Cardew to defendant Schattering, the Director of Nutritional Services. (Compl. ¶ 97; Pls.' Ex. 43). The CORC affirmed the superintendent's decision on Grievance No. WDE-30296-09, citing a recommendation from the Director of Nutritional Services, defendant Schattering, and indicting that the grievance was addressed in previous CORC decisions (Grievance Nos. UST-34303-08, UST-35637-08, and WDE-30064-09). (Compl. ¶ 98; Pls. Ex. 19). Plaintiffs allege that the above constitutes evidence of a DOCS policy that "creates excessive government entanglement in religion, promotes one religion over other religions and non-religion, [and] gives one religion special privilege." (Compl. ¶ 99).

Plaintiffs' fourth cause of action is similar to their third, in that it relates to DOCS' dietary practices. On May 19, 2008, Cardew submitted a grievance (Grievance No. UST-35637-08) at Upstate, alleging that he was required to participate in the "Catholic religious dietary ritual of Fasting of Friday" because the statewide menu did not offer red meat. (Compl. ¶ 102). The IGRC denied Grievance No. UST-35637-08, explaining that Upstate simply follows the statewide menu set up by Nutritional Services, and that the issue was previously addressed in their decision for Grievance No. UST-34303-08. (Compl. ¶ 103). Cardew appealed the IGRC decision to Superintendent Woods, who denied the appeal on June 16, 2008, stating that "[t]here is no indication on the menu that red meat is not served on Fridays because of the Catholic Religion." (Compl. ¶ 104; Pls.' Ex. 20). Cardew appealed the superintendent's decision to the CORC, who upheld the superintendent's determination of Grievance No. UST-34303-08, stating that "inmates are not being forced to participate in a religious ritual." (Compl. ¶ 105; Pls.' Ex. 21).

Cardew was transferred to Wende in December 2008, where he claimed that he was "required to participate in this same Catholic religious dietary ritual along with Arkim. (Compl. ¶ 106). Cardew submitted a grievance (Grievance No. WDE-30064-09) on January 5, 2009, based on the alleged requirement that he participate in the "Catholic religious dietary ritual of Fasting on Friday by not eating red meat." (Compl. ¶ 107). The IGRC denied Grievance No. WDE-30064-09 on January 15, 2009, explaining that the Wende Food Service Administrator has no control over the statewide menu. (Compl. ¶ 108). Deputy Superintendent Sticht denied Cardew's appeal on January 23, 2009, explaining that the Division of Nutritional Services determines what food will be served each day and "[t]here is no force of religion to serve fish on Friday." (Compl. ¶ 109; Pls.' Ex. 23). Cardew appealed the decision to the CORC, who upheld the decision of the superintendent and indicated the issue had already been addressed in Grievance Nos. UST-34303-08 and UST-35636-08. (Compl. ¶ 110; Pls.' Ex. 24).

On April 6, 2009, Arkim submitted a grievance (Grievance No. WDE- 30569-09) based on his objection to the Friday menu served by DOCS that did not offer red meat. (Compl. ¶ 111). Arkim was called to the Wende grievance office on April 9, 2009, and given a direct order by the sergeant to sign off on Grievance No. WDE-30569-09 "because [the IGRC] had already addressed this issue and they were not going to address it again." (Compl. ¶ 112). Arkim was allegedly not given the opportunity to appeal. (Compl. ¶ 112). Cardew and Arkim allege that these dietary practices constitute a custom and policy that requires them to participate in a "Catholic religious dietary ritual," and violates the Free Exercise Clause and the Establishment Clause of the First Amendment along with RLUIPA. (Compl. ¶¶ 11, 116).

Cardew's final cause of action based on the alleged nutritionally deficient diet served to him at Upstate that Cardew alleges caused him to lose 96 pounds, is not the subject of defendants' motion for judgment on the pleadings. Therefore, the court will ...


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