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Aurel Smith v. Kenneth Perlman


February 28, 2012


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge


Plaintiff pro se Aurel Smith ("Smith"), an inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), brings this action against six DOCCS employees alleging violations of the Civil Rights Act, 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. ("RLUIPA"). Am. Compl. (Dkt. No. 5). Smith contends that defendants deprived him of his statutory rights to religious freedom as well as his constitutional rights under the First and Fourteenth Amendments. Id. Smith also asserts pendant state law claims for negligence against various defendants. Id.

Presently pending is defendants' motion to dismiss certain claims and defendants pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 24. Smith opposes the motion. Dkt. No. 26. Also pending is Smith's motion to file a second amended complaint to add the State of New York as a defendant in the present action. Dkt. No. 27. For the following reasons, it is recommended that the defendants' motion be granted in part and denied in part. It is further ordered that Smith's motion to amend be denied.

I. Background*fn3

The facts are related herein in the light most favorable to Smith as the non-moving party. See seubsection II(A) infra.

A. Family/Guest Participation Policy (Counts 1-3)

Smith is a practicing Muslim. Am. Compl. ¶ 20. Islaam has several holy days, two of which, the Eidul-Fitr and the Eidul-Adhaa ("the 'Eids"), are the basis of the current complaint. Id. ¶¶ 22-24. Both 'Eids included a family/guest participation for many years until late 2007 when DOCCS changed its internal policy to limit the number of family/guest participation events to one per year. Id. ¶¶ 26-28; see also Dkt. No. 5-2 at 1 (showing policy in 1982 where both 'Eids were categorized as "communal feast[s] which [are] celebrated with family."). Accordingly, since 2008, only one of the two aforementioned 'Eids could be celebrated with the family members or guests of the inmates. Am. Compl. ¶ 28; see also Id. ¶¶ 34-35 (Eidul-Adhaa celebrations in January 2009 and December 2010 occurred without family/guest participation), ¶ 36 (Eidul-Adhaa celebration in 2011 not scheduled as a family/guest participation event); Dkt. No. 5-1 at 12-16 (religious calendar for 2008); Dkt. No. 5-1 at 17-20 (religious calendar for 2007); Dkt. No. 5-3 (religious calendar for 2010); Dkt. No. 5-2 at 2-4 (religious calendar for 2011).

However, no similar limitation was instituted for the number of Native American religious services which allowed family participation in at least nine religious services. Am. Compl. ¶ 29; see also Id. ¶ 37 (noting that Native American celebrations all still accommodate family/guest participation); Dkt. No. 5-1 at 16 (allowing family participation for all Native American celebrations in 2008); Dkt. No. 5-1 at 20 (same for all Native American celebrations in 2009); Dkt. No. 5-3 at 19 (same for all Native American celebrations in 2010); Dkt. No. 5-2 at 2-4 (same for all Native American celebrations in 2011). Smith submitted letters of complaint to various DOCCS officials. Id. ¶ 32; Dkt. No. 5-2 at 5. On January 15, 2009, defendant Kenneth Perlman, DOCCS Commissioner of Programs, responded to Smith's letter of complaint, directing him to file a formal grievance*fn4 to the facility so that his concerns could be addressed. Am. Compl. ¶ 33; Dkt. No. 5-2 at 6.

Smith also filed a grievance concerning the disparity between the family/guest participation allowed in each respective religious organization. Am. Compl. ¶ 30; Dkt. No. 5-1 at 1-2. An investigative report was submitted to the Inmate Grievance Resolution Committee ("IGRC") detailing that the investigator spoke with the facility's Islamic spiritual advisor, the Imam, who explained "that in past years family events were scheduled for both 'Eids but this policy was changed. As per directive there is only one family event allowed by each religious group with exception of Native Americans." Dkt. No. 5-2 at 8. As the Imam was not involved with decisions about facility policies, and because the policy at issue here had already been determined, further discussion with the Imam was not deemed necessary by DOCCS. Id. The IGRC deadlocked on the issue and it was automatically appealed to the Superintendent. Am. Compl. ¶ 41; Dkt. No. 5-2 at 9-10 (IGRC decision). According to Smith, part of the IGRC's decision was based on comments by defendant Leonard, DOCCS Director of Ministerial Services, that "family participation [wa]s not mandatory for [the 'Eid's] observance." Am. Compl. ¶ 41. However, the IGRC decision outlines that it was denied by the Staff Representatives pursuant to facility policy allowing "one family event . . . per religious organization." Dkt. No. 5-2 at 10. Regardless, Smith disagrees with the proposition that family is not integral to the 'Eid's observance. Am. Compl. ¶ 42; but see Id. ¶ 141 ("[A]lthough family participation in 'Eid observances need not be mandatory or obligated, their participation . . . is integral to the celebration of both 'Eids and participation therein is an obligation on family members as well as the Muslim prisoners themselves."); Dkt. No. 5-1 at 5, 7 (excerpts from religious text stating that attending prayer services is an individual obligation of each Muslim); Dkt. No. 5-1 at 9 (excerpt from religious text outlining importance of Muslims to meet with family and friends during religious times, but emphasizing that visitation is "permissible, and . . . recommended . . . .").

The Superintendent denied the grievance, noting that [p]er Ministerial Services, [the] Central Office allows one family event per year, with the exemption of the Native American faith group. A Native American religious ceremony is observed with a family meal. The other religions do not require a family meal as part of the religious observance. Other religious holidays can be observed without a family event scheduled.

Dkt. No. 5-2, Am. Compl. ¶ 44 (substantially the same recitation of the Superintendent's denial); see e.g. Dkt. No. 5-3 (showing full calendar for all religious events in 2010 and illustrating that every religion, except Native Americans, were limited to, at most, one family/guest participation event per year); Dkt. No. 5-2 at 2-4 (same for 2011). Smith appealed the denial and CORC upheld the Superintendent's determination, emphasizing again that while only one 'Eid is now a family event, both are equally acknowledged and celebrated as holy days on the religious calendar. Am. Compl. ¶¶ 45-46; Dkt. No. 5-2 at 13-16.

On January 20, 2009, Smith again wrote to Perlman complaining about the guest participation disparities. Am. Compl. ¶ 48; Dkt. No. 5-2 at 17-18. On February 2, 2009, non-party Karen Bellamy responded to Smith's letter on Perlman's behalf. Am. Compl. ¶ 48; Dkt. No. 5-2 at 19. On January 31, 2009, Smith again wrote to the Commissioner and received a response from Perlman on the Commissioner's behalf, informing him that there were no plans to change the policy for guests participating in religious events. Am. Compl. ¶ 50; Dkt. No. 5-2 at 20-23. Smith claims that Perlman and Leonard were responsible for either the change in the department policy, or the maintenance of it, and that it should have been modified to allow Muslims to have both 'Eids include family or guest participation. Am. Compl., Count One.

B. Friday Religious Services (Counts 4-5)

Every Friday, religious services were held for Islamic inmates. Am. Compl. ¶¶ 55-56. While in the general population, Smith attended these services weekly. Id. ¶ 57. In July 2009, Smith received a misbehavior report for allegedly threatening an unnamed corrections officer. Id. ¶ 65. On August 1, 2009, Smith was removed from the general population and placed in keeplock*fn5 pending his disciplinary hearing. Id. ¶ 66. Smith was found guilty at the hearing and given confinement in keeplock for thirty days until September 1, 2009. Id. ¶ 72.

While in keeplock, inmates were required to ask permission, via a special DOCCS form, to attend weekly religious services. Am. Compl. ¶ 66; Dkt. No. 5-2 at 27. Smith contends that if permission was denied, DOCCS was required to provide an explanation for said denial via the form.*fn6 Am. Compl. ¶ 69; Dkt. No. 5-2 at 32. While Smith did not seek permission to attend services the first Friday he was keeplocked, he did seek permission each of the following three weeks. Am. Compl. ¶ 73. Smith sent these requests to defendant Martuscello, the Coxsackie Superintendent, who then forwarded them for decision m to defendant Shanley, the Coxsackie Acting Deputy Superintendent of Security. Am. Compl. ¶ 76. The requests were all denied.

Specifically, the first Friday Smith sent both the DOCCS form seeking permission to attend services and an additional letter to Martuscello outlining his continued right to attend religious services despite being keeplocked. Am. Compl. ¶¶ 78-79. Martuscello never responded to Smith's letter, though he forwarded the request to Shanley who denied it based on Smith's misbehavior report and disciplinary conviction for threatening an officer. Id. ¶¶ 79-80. Shanley indicated, by circling two of the three considerations, that Smith's current infraction and disciplinary record were reasons for the denial of his request. Id. ¶ 80. Shanley also wrote that Smith "[W]as given a misbehavior report for threats," in the space below the enumerated criteria for consideration. Id.

In response, Smith wrote another letter to Martuscello, complaining that Shanley's reason denying his participation was insufficient. Am. Compl. ¶ 81. In addition, Smith enclosed another form seeking permission to attend the next week's religious services. Id. ¶ 82. Martuscello again failed to reply to the letter, forwarded the request to Shanley, who again denied permission citing the same reasons as before. Id. ¶¶ 83-85. Smith again wrote to Martuscello, complaining about the adequacy of Shanley's denials. Id. ¶ 86. Smith also submitted his third, and final, request for permission to attend the following week's religious services. Id. ¶ 87. Again, Shanley received, and denied, Smith's requests. Id. ¶¶ 89-91. However, this time Shanley only circled the considerations of Smith's current infraction and disciplinary record and did not include a further notation to explain why permission was denied. Id. ¶ 91.

Smith filed a grievance regarding Shanley's repeated denials. Am. Compl. ¶ 94. The IGRC denied Smith's grievance, which was later upheld by Martuscello. Id. ¶ 95. Smith disputed the validity of Shanley's denials because Smith was serving a minor sentence, was due to return to general population and thus was not a long-term threat, and was not attending services with or near the individual that he allegedly threatened. Id. ¶ 104. Smith also contends that "Martuscello and Shanley maintained a practice not to allow any keeplocked prisoner attendance at religious services whatsoever," as it was his belief that no keeplocked prisoners attended religious services from January 2009 through July 2010. Id. ¶¶ 101, 107, 159.

C. Saturday Islamic Studies Class

Smith attended an Islamic Studies class regularly on Saturday afternoons. Am. Compl. ¶ 109. To attend, Smith needed to be on a list. Id. ¶ 110. On February 6, 2010, Smith was on this list and was scheduled to attend. Id. ¶¶ 111, 113. Defendants Saltsman and Adams, both corrections officers, were working on Smith's unit that day. Id. ¶ 113. At the time of the class,, Smith spoke with Saltsman as he was passing by Smith's cell. Id. ¶ 115. Saltsman acknowledged that Smith had permission to attend the class but did not release Smith from his cell. Id. ¶ 116.

Shortly thereafter, Adams released other inmates from their cells for the law library. Am. Compl. ¶ 117. Smith called out to Adams, informing him of his call out for his religious group. Id. ¶ 118. Adams also acknowledged that the group was being held and did not dispute Smith's permission to attend said course but never released Smith for the class. Id. ¶¶ 119-20.

Smith filed a grievance against Saltsman and Adams for failing to release him from his cell for the class. Am. Compl. ¶ 122; Dkt. No. 5-2 at 36-38. Smith was interviewed in conjunction with the grievance and was told that neither Saltsman or Adams denied failing to release him, but instead the investigator surmised that defendants "may have mistakenly failed to [release him]." Am. Compl. ¶¶ 123-24. Both officers claimed not to recall the event. Id. ¶ 135. The grievance was denied and subsequently appealed. Dkt. No. 5-2 at 39.

II. Discussion

In his amended complaint, Smith alleges that his First Amendment rights were violated when defendants prohibited him from attending three religious Friday services, a Saturday religious study group, and changed the policy to allow only one 'Eid to have family participation. Smith also asserts a Fourteenth Amendment violation because he was unable to attend religious services while keeplocked and because Muslims were treated differently than Native Americans concerning the number of family/guest participation events they were allowed annually. Smith also seeks to add the State of New York as a defendant in the present complaint. Defendants move for dismissal on the grounds that (1) Perlman, Leonard and Martuscello lacked personal involvement in the alleged constitutional violations; (2) the constitutional claims are meritless; (3) the RLUIPA claims are also meritless; and (4) the state claims are precluded by Corrections Law § 24.

A. Legal Standard

Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, this "tenet . . . is inapplicable to legal conclusions[; thus, t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (holding that "entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . [as] courts are not bound to accept as true a legal conclusion couched as a factual allegation.")).

Accordingly, to defeat a motion to dismiss, a claim must include "facial plausibility . . . that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556 (explaining that the plausibility test "does not impose a probability requirement . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that, "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible . . . .") (citations omitted). Determining whether plausibility exists is "a content specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950-51.

When, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated, [t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude," . . . that a pro se litigant's submissions must be construed "liberally,". . . and that such submissions must be read to raise the strongest arguments that they 'suggest. . . . . At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, . . or arguments that the submissions themselves do not "suggest, . . ." that we should not "excuse frivolous or vexatious filings by pro se litigants" . . . and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law . . . ."

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally.'" (citations omitted)).

B. Personal Involvement

"'[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. Id.; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). However, supervisory personnel may be considered "personally involved" if:

(1) [T]he defendant participated directly in the alleged constitutional violation;

(2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong;

(3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom;

(4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or

(5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).*fn7

1. Perlman

Perlman is the Deputy Commissioner of Programs. In this capacity, he responded to Smith's complaints about the changes to the family/guest participation events. While the first response merely directed Smith to file a formal grievance at the facility level, an action insufficient to establish personal involvement, the second response indicated that there were no plans to reinstate an additional family event. Perlman also authored the memoranda distributed to the various Superintendents at the DOCCS facilities which outlined the religious calendar and the number and dates of the family/guest participation events. Dkt. No. 5-3 at 1. Accordingly, in light of Perlman's letter and memoranda and viewing the evidence in the light most favorable to Smith, it appears that Perlman was involved in at least the continuation of the allegedly unconstitutional policy. See Boddie v. Morgenthau, 342 F. Supp. 2d 193, 203 (S.D.N.Y. 2004) ("While mere receipt of a letter from a prisoner is insufficient to establish individual liability . . . [p]ersonal involvement will be found . . . where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint."); McClary v. Coughlin, 87 F. Supp. 2d 205, 215 (W.D.N.Y. 2000) ("Personal involvement does not hinge on who has the ultimate authority for constitutionally offensive decisions. Rather, the proper focus is the defendant's direct participation in, and connection to, the constitutional deprivation."). Accordingly, Smith has alleged sufficient facts to demonstrate that Perlman was directly involved with the implementation and continuation of the alleged unconstitutional policy.

Defendants' motion on this ground as to Perlman should be denied.

2. Leonard

Leonard was the Director of Ministerial Services, allegedly informed individuals during the grievance decisions how the religious policy regarding family/guest participation operated, and expressed his understanding of its continued existence in the future. Documents attached to the complaint show that Ministerial Services was contacted, and provided guidance, to CORC when it was asked to issue a decision for Smith's grievance. Dkt. no. 5-2 at 12. Accordingly, as with Perlman, viewing the facts alleged in the amended complaint in the light most favorable to Smith, Smith has alleged sufficient facts to deem Leonard directly involved with the implementation and continuation of the policy. Therefore, defendants' motion on this ground as to Leonard should be denied.

3. Martuscello

As the Superintendent of Coxsackie, Martuscello failed to respond to Smith's letters of complaint regarding his denied requests for permission to attend religious Friday services while keeplocked. Failure to respond to letters is insufficient to establish personal involvement. Smart v. Goord, 441 F. Supp. 2d 631, 643 (S.D.N.Y. 2006) ("Commissioner . . . cannot be held liable on the sole basis that he did not act in response to letters of protest sent by [plaintiff] . . . ."). Similarly, receipt of a letter, without personally investigating or acting on the letter or grievance, is insufficient to establish personal involvement. See, e.g., Rivera v. Fischer, 655 F. Supp. 2d 235, 238 (W.D.N.Y.2009) (citing cases); Boddie v. Morgenthau, 342 F. Supp. 2d 193, 203 ("While mere receipt of a letter from a prisoner is insufficient to establish individual liability . . . [p]ersonal involvement will be found . . . where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint.").

Moreover, Martuscello's actions in forwarding Smith's requests for permission to attend religious activities to Shanley is also insufficient to establish personal involvement because it is within the purview of a superior officer to delegate responsibility to others. See Vega v. Artus, 610 F. Supp. 2d 185, 198 (N.D.N.Y.2009) (finding no personal involvement where "the only involvement of the supervisory official is to refer the inmate's complaint to the appropriate staff for investigation.") (citing Ortiz-Rodriquez v. N.Y. State Dep't of Corr. Servs., 491 F. Supp. 2d 342, 347 (W.D.N.Y.2007)).

Lastly, Martuscello's actions in denying Smith's two grievance appeals, regarding isolated and unrelated incidents relating to Shanley's refusal to allow him to participate in three Friday services and Saltsman's and Adam's failure to take him to his Saturday religious studies group, are also insufficient to state a claim for personal involvement. Both of these grievances relate to "alleged misconduct [that] had already occurred . . . [as opposed to] complaining about an 'ongoing' violation." Harnett v. Barr, 538 F. Supp. 2d 511, 524-25 (N.D.N.Y. 2008). Without more, the requirement for personal involvement has not been satisfied. Id.

Martuscello cannot otherwise be deemed personally involved for his position in a hierarchical chain of command. Wright, 21 F.3d at 501. Moreover, the amended complaint fails to allege, and Smith offers no evidence other than conclusory statements, that Martuscello failed to train any of the defendants. Finally, for the same reasons as cited above, Smith has failed to establish that Martuscello was grossly negligent or aware, and indifferent to an ongoing constitutional violation.

Accordingly, defendants' motion as to Martuscello should be granted on this ground.

C. First Amendment

The First Amendment protects the right to free exercise of religion. See generally Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). "Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause." Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). This right is not absolute and can be limited due to the inmate's "incarceration and from valid penological objectives -- including deterrence of crime, rehabilitation of prisoners, and institutional security." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted); see also Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990) ("The governing standard is one of reasonableness, taking into account whether the particular regulation . . . is reasonably related to legitimate penological interests.") (citations omitted).

The Turner Court determined that the four factors to be considered are: 1) whether there is a rational relationship between the regulation and the legitimate government interests asserted; 2) whether the inmates have alternative means to exercise the right; 3) the impact that accommodation of the right will have on the prison system; and 4) whether ready alternatives exist which accommodate the right and satisfy the governmental interest.

Benjamin, 905 F.2d at 574 (citing Turner v. Safely, 483 U.S. 78, 89-91 (1987).

1. Attendance at the Friday Services

""[P]risoners have a constitutional right to participate in congregate religious services."

Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (citations omitted). "Confinement in keeplock does not deprive prisoners of this right." Id. (citations omitted). While the Second Circuit has accorded prison officials great deference in the administration and "responsibility of maintaining order in prisons, . . . prisoners should be afforded every reasonable opportunity to attend religious services, whenever possible." Young v. Coughlin, 866 F.2d 567, 570 (2d Cir. 1989) (citations omitted). "The governing standard is one of reasonableness, taking into account whether the particular regulation affecting some constitutional right asserted by a prisoner is reasonably related to legitimate penological interests." Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990) (citations omitted). The same analysis is undertaken when there is an allegation that "an individual dec[ided] to deny a prisoner the ability to engage in some requested religious practice." Ford, 352 F.3d at 595 n.15 (citations omitted).

Defendants contend that Smith's religious beliefs were not substantially burdened if he was denied attendance at three Friday prayer services. The Supreme Court has previously recognized the importance of these Friday services, explaining that they are "commanded by the Koran and must be held . . . after the sun reaches its zenith and before the . . . afternoon prayer." O'Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987); see also Salahuddin, 993 F.2d at 307 ("Participation in Jumu'ah [the Muslim Friday prayer service,] is the central observance of Islam."). Accordingly, significant importance attaches to the prayer services.

However, some courts have determined that individual prayer is adequate to fulfill a Muslim's prayer obligations and that legitimate excusals from prayer services do not substantially burden religious beliefs. See Abdur-Rahman v. Michigan Dep't of Corr., 65 F.3d 489, 492 (6th Cir. 1995) (concluding that because "the Islamic religion expressly excuses individuals who are in prison for good cause [and that] . . . Friday services are not fundamental to [the Islamic] religion . . . " no substantial burden had occurred); Boomer v. Irving, 963 F. Supp. 227, 230-31 (W.D.N.Y. 1997) (explaining that "two Muslim Imams [testified] . . . that an inmate's failure or inability to attend one [prayer] service does not substantially interfere with the inmate's obligations as a practicing Muslim because those obligations may be fulfilled by individual prayer offerings with no adverse consequences."). Smith continually stresses that the deprivation of attending the three services substantially burdened him, but fails to articulate why or how. Pl. Mem. of Law (Dkt. No. 26) at 11. However, construing the facts in the light most favorable to Smith it may be determined that by missing three consecutive religious services a substantial burden occurred.

Regardless I of this burden, Smith has failed to allege or prove that the denial of his requests for permission to attend three Friday services while in keeplock was unreasonable and thus in contravention of his constitutional rights. In this case, the regulation requiring Smith to seek and receive permission to attend services only if the inmate did not pose a security risk is reasonably related to one of the most important prison objectives of maintaining order and safety in the correctional institutions. Smith was denied permission to attend the services for the same reasons which led to his keeplock confinement, that he had threatened a corrections officer and received a disciplinary confinement for such actions. Accordingly, defendants Martuscello and Shanley acted pursuant to legitimate penological concerns. Defs. Mem. of Law (Dkt. No. 24-1) at 12-13. Furthermore, the Muslim faith allows "excuse[s] from Friday services for [legitimate] reasons . . . ." which would include releases precluded because of security risks. Abdur-Rahman, 65 F.3d at 491-92 (dismissing inmate's First Amendment claims when his requests to leave his work assignment to attend religious services was denied due to the resulting security threat); Boomer, 963 F. Supp. at 230-31.

Defendants' motion on this ground should be granted.

2. Attendance at Saturday Religious Studies Group

Smith also contends that Saltsman and Adams violated his First Amendment rights when they failed take him fro keeplock to one meeting of a Saturday religious study group. Defendants contend that denying Smith attendance at one isolated religious study group session is insufficient to burden Smith's religious rights.

A substantial burden requires more than a mere inconvenience to an inmate's religious beliefs. Boomer, 963 F. Supp. at 230 (citations omitted); see also Salahuddin, 467 F.3d at 275 (citations omitted). Missing one religious service does not constitute a substantial burden on an inmate's right to practice his religion. See Cancel v. Mazzuca, 205 F. Supp. 2d 128, 142 (S.D.N.Y. 2002) (granting motion to dismiss against defendant that prevented inmate from attending religious services on one occasion); Boomer, 963 F. Supp. at 230-31. The Second Circuit has also affirmed this, concurring that missing one religious service was insufficient to state a First Amendment claim. Gill v. DeFrank, 8 Fed. Appx. 35, 37 (2d Cir. 2001) (attached to Report-Recommendation as Ex. 1). It is arguable whether a religious study group session is afforded the same deference as a religious service as it is informal by its nature and has not been identified as being a part of, or comparable to, a recognized religious service. Regardless of its significance, the actions of Stalsman and Adams in precluding Smith from attending one meeting of the religious study group was at most an inconvenience which is insufficient to establish a substantial burden.

Therefore, defendants' motion as to this claim should be granted on this ground.


The RLUIPA provides that [n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1. In a RLUIPA claim, "[t]he prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs. The defendants then bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct." Salahuddin, 467 F.3d at 274-75.

Congress, in enacting the RLUIPA, anticipated that Courts would give "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources. Nevertheless, prison officials cannot simply use the words "security" and "safety", and expect that their conduct will be permissible.

Singh v. Goord, 520 F. Supp. 2d 487, 499 (S.D.N.Y. 2007) (internal citations omitted).

As discussed above, even construing the facts in the light most favorable to Smith, he has failed to allege facts sufficient to establish that (1) Martuscello and Shanley's actions were not supported by a legitimate penological interest and (2) defendants Saltsman and Adams' conduct substantially burdened his religious beliefs and practices. Accordingly, defendants' motion on this ground should be granted as to this claim.

E. Fourteenth Amendment

The Fourteenth Amendment's Equal Protection Clause mandates equal treatment under the law. Essential to that protection is the guarantee that similarly situated persons be treated equally. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) ("To prove a violation of the Equal Protection Clause . . . a plaintiff must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination.").

[T]he Equal Protection Clause bars the government from selective adverse treatment of individuals compared with other similarly situated individuals if such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.

Vegas, 610 F. Supp. 2d at 209 (internal quotation marks and citations omitted). However, "[t]he Supreme Court has specifically held that in the prison context, the Equal Protection clause does not require that every religious sect or group within a prison . . . have identical facilities or personnel." Pugh v. Goord, 571 F. Supp. 2d. 477, 502 (S.D.N.Y. 2008) (internal quotation marks and citations omitted). Thus, even if Smith alleges that two groups were similarly situated, disparate treatment may still have been permissible if the distinctions were reasonably related to legitimate penological interests. Id.

In this case, Smith claims that his equal protection rights were violated when he was not allowed to attend Friday services on three occasions when general population inmates were allowed to attend. Also, Smith alleges his rights were generally violated because Martuscello and Shanley were believed to never allow keeplocked inmates to attend religious services. Smith has failed to allege an equal protection claim. First, Smith was not similarly situated to the inmates in the general population because he had been adjudged guilty of a disciplinary charge which resulted in confined housing. Second, Smith was not the subject of intentional discrimination. As previously discussed, he was precluded from attending the services for legitimate penological reasons which had nothing to do with Smith's religious affiliation. Third, Smith's claims that all keeplocked inmates were prevented from ever attending any religious services are conclusory and unsupported. Smith fails to identify the other inmates to whom he refers, their religious affiliations, or from which services they were denied attendance. Accordingly, Smith has failed to establish the necessary elements of an Equal Protection claim.

Defendants' motion as to this claim should be granted.

F. State Law Claims

Smith's amended complaint also asserts that Martuscello, Saltsman, and Adams were all negligent in their actions. However these claims fail as a matter of law. New York Correction Law § 24 provides that

1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.

2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state. "Section 24 thus precludes claims against corrections officers brought against them in any court in their personal capacities arising out of the discharge of their duties." Crump v. Ekpe, No. 07-CV-1331, 2010 WL 502762, at *18 (N.D.N.Y. Feb. 8, 2010) (citations omitted) (Attached to Report-Recommendation as Ex. 2).

Because a federal court applying pendent jurisdiction is forced to apply state substantive law to a state claim, this would result in inmates being prohibited from advancing such pendent claims along with their federal claims in federal court. Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996).

In 2009, the United States Supreme Court held that § 24 is unconstitutional to the extent that it precludes inmates from pursuing § 1983 actions. However, at least two judges in this District have observed that because Haywood's focus is on concerns about civil rights claims and the Supremacy Clause, the decision does not affect the question of whether this Court has proper jurisdiction to hear a pendent state law claim.

Tafari v. McCarthy, 714 F. Supp. 2d 317, 384 (N.D.N.Y. 2010) (internal quotation marks and citations omitted). Accordingly, this district has continued to dismiss state law pendent claims against defendants acting within their personal capacities, discharging their duties, pursuant to the preclusive effects of § 24. See e.g., Crumpe, 2010 WL 502762, at *18.

When determining whether actions fall within the scope of the defendants employment, courts have considered: the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by any employee; the extent of the departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated.

Degrafinreid v. Ricks, 452 F. Supp. 2d 328, 333 (S.D.N.Y. 2006) (citations omitted). Thus, "an employee will be considered within the scope of his employment so long as he is discharging his duties no matter how irregularly, or with what disregard of instructions." Id. (citations omitted). Even in cases where alleged excessive force was used in frisking or searching a cell, or where negligence was alleged in the provision of medical care, such actions are still defined to be within an employee's duties. Id. (citations omitted); see also Crump, 2010 WL 502762, at *18 (listing DOCCS employee duties to include "determinations to administratively confine plaintiff to SHU, to issue a misbehavior report, the conduct of the disciplinary hearing, and the determination that plaintiff was guilty of the charges alleged," and explaining that while actions "exceeding the scope of the corrections officer's authority . . . ." may give rise to a constitutional violation, such actions are still precluded pursuant to § 24).

With respect to the defendants making the present motion, all of their purported actions fall within their assigned duties. Martuscello's actions in denying grievances and making determinations on the whereabouts of inmates all fell within his assigned duties as a Superintendent. The same is true of Shanley's discretion in granting or denying Smith permission to attend religious services and Saltsman's and Adams' duties in running the housing floor and assembling inmates for call outs. Thus, § 24 prohibits the advancement of any pendent state law claims. While these defendants' actions may be cited as the alleged cause of a constitutional violation, it is insufficient to remove this action from the bar of § 24.

Accordingly, defendants' motion should be granted on this ground as to Smith's state law claims against the moving defendants.

III. Motion to Amend

Rule 15(a) provides that a court should grant leave to amend "freely . . . when justice so requires." When exercising its discretion, a court must examine whether there has been undue delay, bad faith, or dilatory motive on the part of the moving party. Evans v. Syracuse City School District, 704 F.2d 44, 46 (2d Cir. 1983) (citing Foman, 371 U.S. at 182). The court must also examine whether there will be prejudice to the opposing party. See, e.g., Ansam Associates Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir.1985) (permitting proposed amendment would be especially prejudicial once discovery has been completed and a summary judgment motion filed). Finally, where it appears that granting leave to amend is unlikely to be productive or the amendment is futile, it is not an abuse of discretion to deny leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted).

In this case, granting Smith's liberally construed request to amend his complaint to add New York State as a defendants is futile under the Eleventh Amendment. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "[D]espite the limited terms of the Eleventh Amendment, a federal court [cannot] entertain a suit brought by a citizen against his [or her] own State." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 21 (1890)). Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Halderman, 465 U.S. at 100.

Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979). Therefore, the Eleventh Amendment bars suit against the State of New York.

Moreover, in the case of proposed amendments where new defendants are to be added, the Court must also look to Fed. R. Civ. P. 21. Rule 21 states that a party may be added to an action "at any stage of the action and on such terms as are just." Rule 21 is "intended to permit the bringing in of a person, who through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable." United States v. Commercial Bank of N.A., 31 F.R.D. 133, 135 (S.D.N.Y. 1962) (internal quotations omitted). Addition of parties under Rule 21 is also guided by the same liberal standard as a motion to amend under Rule 15. Fair Housing Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y. 1972).

As previously stated, the State of New York is neither a necessary or desirable party as all claims against it are futile. Thus, as the liberal standard of Rule 15 precludes the addition of the State as a defendant, so does Rule 21. Accordingly, Smith's motion to amend is denied on this ground.

IV. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that defendants' motion to dismiss (Dkt. No. 24) be:

1. GRANTED as to

A. The First Amendment and RLUIPA claims against Martuscello and Shanley for denying Smith attendance at Friday religious services;

B. The First Amendment and RLUIPA claims against defendants Saltsman and Adams for denying Smith attendance at Saturday's religious study group;

C. The Equal Protection claims against Martuscello and Shanley for precluding Smith, and the other keeplocked inmates, from attending religious services; and

D. Smith's state law negligence claims against Martuscello, Saltsman, and Adams; and

2. DENIED in all other respects; and

IT IS HEREBY ORDERED that Smith's motion for leave to file a second amended complaint (Dkt. No. 27) is DENIED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

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