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Aurel Smith v. Kenneth Perlman

February 28, 2012

AUREL SMITH, PLAINTIFF,
v.
KENNETH PERLMAN, DEPUTY COMMISSIONER OF PROGRAMS, NYS DEPARTMENT OF CORRECTIONAL SERVICES; MARK LEONARD, DIRECTOR OF MINISTERIAL SERVICES, NYS DEPARTMENT OF CORRECTIONAL SERVICES; DANIEL MARTUSCELLO, SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY; CAPTAIN R. SHANLEY, CAPTAIN, ACTING DEPUTY SUPERINTENDENT OF SECURITY AT COXSACKIE CORRECTIONAL FACILITY; SALTSMAN, CORRECTIONAL OFFICER, COXSACKIE CORRECTIONAL FACILITY; AND MR. J. ADAMS,*FN1 CORRECTIONAL OFFICER, COXSACKIE CORRECTIONAL FACILITY, DEFENDANTS.



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

REPORT-RECOMMENDATION AND ORDER*fn2

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 ...


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