The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.,
On October 14, 2010, Defendants, the County of Rockland and Revered Teresa Darden Clapp, moved this Court for an order of summary judgment dismissing the instant complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1 of the Southern District Local Civil Rules. Defendants' summary judgment motion was supported by: the Affidavit of Revered Teresa Darden Clapp; the Affidavit of Joseph Conjura, Captain of the Rockland County Sheriff's Department; the Declaration of Richard M. Mahon, II, Attorney for Defendants, with attached exhibits; and Defendant's Statement Pursuant to Local Rule 56.1.
Plaintiffs, Gregory Gordon, Kin Vasquez, and Kenneth Kidd, filed a complaint on February 24, 2010 alleging violations of the First, Fifth, Eighth and Fourteenth Amendments; 42 U.S.C. § 1983; and the parallel rights of the New York State Constitution. Plaintiffs claim that between March 26, 2007 and May 7, 2007, Defendants engaged in a pattern of unconstitutional conduct, policies and practices that abridged the Plaintiffs' religious freedoms causing plaintiffs to sustain severe psychological trauma. Specifically, Plaintiffs claim that between those dates, Defendant, Reverend Clapp, distributed two religious booklets ("the tracts"), published by Chick Publications, entitled "Men of Peace?" and "Allah has no Son" which contained defamatory statements about the Muslim faith. (Compl. ¶¶ 13-18). Further, Plaintiffs claim that Revered Clapp refused to permit the Plaintiffs from using the Quran in the Jail; that on occasion Muslim Services were held in the "barber shop" of the jail which hindered and prevented prayer service; that the County had a policy, both express and/or implied, to deny the religious rights of Plaintiffs; that the County, despite its knowledge of the conduct of Reverend Clapp, permitted her to act as Plaintiffs' religious director; that the County failed to hire anyone to lead Muslim services in an effort to discourage and hinder religious observance by Muslims; and that as a result of the distribution of the two tracts, non-Muslim inmates began altercations with inmates, including plaintiffs and, non-Muslim inmates called Allah the devil, causing Plaintiffs to sustain severe psychological trauma. (Id. at ¶¶ 22-26.)
On January 5, 2011, Plaintiffs voluntarily withdrew all claims asserted against the County of Rockland. (Declaration of Andrew F. Plasse ("Plasse Decl.") at ¶ 10.) Thus, the only remaining Defendant in this action is Reverend Clapp, in both her official and personal capacity. Further, the opposition papers submitted by Plaintiffs only addressed the issue of Reverend Clapp's deliberate indifference to Plaintiffs' right to free exercise of religion by distributing the allegedly defamatory tracts. Consequently, Plaintiffs' First Amendment allegation regarding the distribution of the tracts is the sole remaining claim at issue on this motion for summary judgment.
For the foregoing reasons Defendant's motion for summary judgment is granted in part and denied in part. Summary judgment on this claim against Reverend Clapp in her official capacity is granted and summary judgment on this claim against Reverend Clapp in her personal capacity is denied.
Summary judgment is granted when "there is no genuine issue as to any material fact and.the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-587 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of his constitutional or statutory rights by a person acting under the color of state law. To be liable under §1983, the defendant must have been personally involved in the alleged violation. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Here, Plaintiffs' claim under § 1983 is that Reverend Clapp, a state actor by virtue of her employment with the Jail, violated their First Amendment right to free exercise of religion through her deliberate indifference in distribution of the allegedly defamatory tracts. While prisoners, like other citizens, have a First Amendment right to the free exercise of their religion "a threshold question is whether the alleged state action in question substantially burdens that right." Wagnoon v. Gatson, Nos. 00 Civ 3722, 2001 WL 709276, at *3 (S.D.N.Y. June 25, 2001).
The following facts are drawn from the Plaintiffs' Complaint filed on February 24, 2010 ("Compl."), Defendants' Statement of Undisputed Facts pursuant to Local Rule 56.1 filed October 25, 2010 ("Def. 56.1"), Plaintiffs' Statement of Undisputed Facts pursuant to Local Rule 56.1 filed January 05, 2011 ("Pla. 56.1"), Affidavits from Reverend Teresa Darden Clapp ("Clapp Aff.") and Captain Joseph Conjura ("Conjura Aff."), the Declaration of Richard M. Mahon, II ("Mahon Decl.") filed October 25, 2010 with exhibits A through M, and the Declaration of Andrew F. Plasse ("Plasse Decl.") filed January 5, 2011, with exhibits A throughH. Revered Clapp ("Rev. Clapp"), an ordained Christian minister, has been employed by the County of Rockland at the Rockland County Correctional Facility ("the Jail") in the capacity of Jail Chaplin since February 1994. (Def. 56.1 ¶ 1.) Since February 1994, part of Rev. Clapp's duties included the distribution of religious materials and literature to the inmate population. (Id. at ¶ 2.) According to Defendant, on March 26, 2007, Rev. Clapp placed multiple copies of two tracts published by Chick Publications on tables in Housing Unit A and Housing Unit E of the Jail. (Id. at ¶ 4.) These tracts, entitled "Men of Peace?" and "Allah has no Son" contained allegedly defamatory images and statements about the Muslim faith. (Compl. ¶¶ 13-18.) Defendant maintains that over the years, she has distributed various tracts from Chick Publications at the Jail, without complaint or incident. (Clapp Aff. ¶ 11.) On this instance, Rev. Clapp asserts that she had not read or reviewed the tracts prior to their distribution at the jail, and that she was unaware of their contents. (Id. at ¶ 2.)
On March 27, 2007, Rev. Clapp spoke with inmate Dorian Epps ("Mr. Epps") who expressed his concerns about the pamphlets. (Def. 56.1 ¶ 7.) According to Defendant's Rule 56.1 Statement, Rev. Clapp then apologized to Mr. Epps and promptly collected all the Chick Publications she could locate. (Id. at ¶ 8.) On March 28, 2007, Captain Conjura spoke with Rev. Clapp about the subject tracts and instructed her to remove all Chick Publications, including the tracts at issue here, from the inmate population, and prohibited Rev. Clapp from further distributing any tracts from Chick Publications at the Jail. (Id. at ¶ 10.) On April 12, 2007, as a result of the distribution of these two tracts, Rev. Clapp was suspended with pay. (Id. at ¶ 12.) On or about May 15, 2007, a disciplinary proceeding pursuant to section 75 of the Civil Service Law was commenced against Rev. Clapp regarding the distribution of the subject tracts. (Id. at ¶ 15.) On May 15, 2007, Rev. Clapp' suspension was continued; however, she was suspended without pay. (Id. at ¶ 16.) Following a three day disciplinary hearing, the Arbitrator of that proceeding determined that Rev. Clapp was negligent in failing to read or inspect the subject tracts prior to their distribution to the inmate population. (Id. at ¶ 19.) On September 10, 2007, Rev. Clapp was permitted to return to work. (Id. at ¶ 20.) Upon Rev. Clapp's return to work, she was ordered to cease and desist from supervising any other religious leaders that enter the jail and was stripped of her responsibilities over all religious matters that pertained to the Jail. (Id. at¶ 21.)
Defendant Clapp asserts three reasons why summary judgment should be granted in her favor: 1) Plaintiffs are unable to establish a "custom or policy" on the part of the County of Rockland such that Defendant can be sued in her "official capacity"; 2) Plaintiffs are unable to establish that Rev. Clapp's actions amounted to anything more than mere negligence which is insufficient to sustain a suit against Rev. Clapp in her "personal capacity"; and 3) Plaintiffs have failed to exhaust their administrative remedies. The Court will discuss each of these three in turn.
A.Plaintiffs are unable to establish a "custom or policy" on the part of the County of Rockland Official capacity suits under § 1983, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). A governmental entity is liable under § 1983, "only when the entity itself is a 'moving force' behind the deprivation." Id. at 166 (internal citation omitted). Thus, in an official capacity suit, "the entity's 'policy or custom' must have played a part in the violation of federal law." Id. It is well settled that the "policy or custom used to anchor liability need not be contained in an explicitly adopted rule or regulation." Sorlucco v. New York City Police Dep't., 971 F.2d 864, 870 (2d Cir. 1992) (internal citation omitted). Nevertheless, the plaintiff must prove that the "allegedly violative ...