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Robert Cardew and Barry Arkim v. Joseph F. Bellnier

August 2, 2011

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



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pro se plaintiffs Robert Cardew, a former inmate of Upstate Correctional Facility and Wende Correctional Facility, and Barry Arkim, a former inmate of Wende, bring this action under 42 U.S.C. § 1983, claiming violations of the First and Fourteenth Amendments and the Religious Land Use and Institutionalized Persons Act (RLUIPA).*fn1 (See Compl., Dkt. No.

1.) 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 allege 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 RLUIPA. (See id.)

On May 25, 2010, defendants moved to dismiss plaintiffs complaint pursuant to FED. R. CIV. P. 12(c). (Dkt. No. 107.) In a Report and Recommendation (R&R) filed December 9, 2010, Magistrate Judge Andrew T. Baxter recommended that defendants' motion be granted in part and denied in part.*fn2 (See R&R at 2-9, Dkt. No. 133.) Pending are plaintiffs' objections to the R&R. (Dkt. Nos. 134, 135.) For the reasons that follow, the R&R is adopted in its entirety.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.

III. Discussion

A. Equal Protection Claims

In the R&R, Judge Baxter recommended that plaintiffs' as-applied equal protection claims be dismissed because plaintiffs failed to allege that the housing policies of the Department of Correctional Services (DOCS) were applied against them in a racially, religiously, or otherwise discriminatory manner. (See R&R at 25, 27, Dkt. No. 133.) Given plaintiffs' specific, though misguided, objections, (see Objections at 1-4, Dkt. No. 134), the court has reviewed this portion of the R&R de novo and concurs with and adopts Judge Baxter's assessment. In particular, the court echoes Judge Baxter's findings that plaintiffs' allegations are conclusory and implausible, and their legal assertions inaccurate. (See R&R at 18-27, Dkt. No. 133.) Therefore, plaintiffs' as-applied equal protection claims are dismissed.

As to plaintiffs' facial challenge, Judge Baxter concluded that in light of plaintiffs' allegations-suspect as they are-and due to defendants' failure to adequately brief this issue, plaintiffs' challenge should survive against defendants Bezio, Cascaceli, Jordan, Kearney, LeClaire, Quinn, Sheahan, and Sticht. (See id. at 28-30.) As none of the parties have objected to this recommendation, the court has reviewed it for clear error and finds none. Accordingly, plaintiffs' facial claims are dismissed against all but the above-specified defendants.

B. First Amendment Claims

Judge Baxter further recommended that plaintiffs' First Amendment claims be dismissed. (See id. at 30-39.) Plaintiffs essentially claim that defendants violated their First Amendment rights in two ways. First, that because religion is a criterion used when making Double Occupancy Housing Unit (DOHU) assignments, defendants are "endorsing religion over non-religion" and "trying to coerce Cardew into acting contrary to his beliefs to declare a religion in order to be housed in a DOHU." (Compl. ¶ 84, Dkt. No. 1.) And second, plaintiffs claim that the "non-red-meat" menu served on Ash Wednesday and Fridays forces them to participate in a "Catholic religious dietary ritual." (Id. at ¶¶ 86, 94, 101.)

In objecting to Judge Baxter's recommendation, plaintiffs simply reassert the factual and legal assertions contained in their complaint. But as Judge Baxter already pointed out, "[n]othing alleged in plaintiffs' complaint plausibly indicates that the DOCS criteria for [housing] required inmates to declare membership in a religion as a prerequisite to receive a DOHU, or otherwise infringed in any way on either of their religious beliefs." (R&R at 30, Dkt. No. 133.) Thus, Judge Baxter correctly concluded that defendants' "us[e of] religion as a criterion in DOHU assignments does not implicate the First ...


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