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Aurel Smith v. Kenneth Perlman

March 19, 2012


The opinion of the court was delivered by: Mae A. D'agostino, U. S. District Judge



In this pro se action under 42 U.S.C. § 1983, plaintiff, an inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), claims that defendants violated § 3 of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc--1, the Free Exercise Clause of the First Amendment and plaintiff's rights to Equal Protection under the Fourteenth Amendment. In addition, plaintiff asserted state law claims against defendants Martuscello, Saltsman and Adams. Defendants' moved to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 24) and plaintiff cross moved to amend the complaint. (Dkt. No. 27). The motions were referred to United States Magistrate Judge David R. Homer for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3( c ). Magistrate Judge Homer issued a Report-Recommendation (Dkt. No. 33) recommending that the motion to dismiss be granted in part and denied in part and further, recommending that plaintiff's cross motion to amend be denied.*fn2

Plaintiff and defendants filed specific objections to the Report-Recommendation. (Dkt. Nos. 34 and 36). In view of the objections and pursuant to 28 U.S.C. § 636(b)(1), this Court conducts a de novo review of these issues. The Court reviews the remaining portions of the Report-Recommendation for clear error or manifest injustice. See Brown v. Peters, 1997 WL 599355, at *2-3 (N.D.N.Y.) aff'd without op., 175 F.3d 1007 (2d Cir. 1999). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).


I. The Amended Complaint*fn3

At the relevant time, plaintiff was incarcerated at Great Meadow Correctional Facility ("GMCF") and Coxsackie Correctional Facility ("CSF"). Plaintiff is a Muslim of orthodox (or Sunni) belief and practice. Two of the holy days observed by Muslims are the two 'Eids ('EidulFitr and 'Eidul Adhaa). Both 'Eids are observed similarly and include a special prayer, sermon, a religious feast, family attendance and charitable acts to the poor. Family/guest attendance and participation is an integral part of the 'Eids. Plaintiff's religion also obligates him to attend weekly congregate services on Friday afternoons known as "Jum'ah". Jum'ah services include a religious sermon given by a Muslim Chaplain and a special prayer. At CSF, Jum'ah services are regularly scheduled to occur on Friday afternoons in the gymnasium. Plaintiff regularly attended such services while confined in the general population at CSF. Plaintiff also regularly attended Islamic Studies (Ta'lim) classes on Saturday afternoons at CSF. Attendance at these classes was on a "list basis" and prisoners would receive a "call out slip/pass".

A. Family/Guest Participation in the 'Eids

From 1982 until December 2007, DOCCS officials accommodated family/guest attendance and participation in the 'Eids. In December 2007, plaintiff claims that officials, "abruptly and without notice" limited the Muslim inmates to one family event per year. Accordingly, only one of the 'Eids could be celebrated with the family members/guests of the inmates. Plaintiff alleges that no such limitations were placed on Native American services which allows family participation. To wit, DOCCS continues to accommodate at least nine holy days of Native American observance and allowed family/guest participation. Upon learning of the change in policy, in December 2008 (while incarcerated at GMCF), plaintiff wrote a letter to Commissioner Fischer regarding the "religious violations".*fn4 On January 15, 2009, defendant Perlman*fn5 responded to plaintiff's letter advising plaintiff to file a formal grievance at the facility level.*fn6 In December 2008, plaintiff filed a grievance and submitted letters to DOCCS officials seeking intervention. The Inmate Grievance Review Committee ("IGRC") deadlocked on the issue and plaintiff's grievance was forwarded to the GMCF Superintendent. Superintendent Williams denied plaintiff's grievance noting: per ministerial services*fn7 , Central Office allows one family event per year, with the exception 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.

Plaintiff appealed this decision to the Central Office Review Committee ("CORC"). CORC upheld the Superintendent's denial.*fn8 On January 20, 2009, plaintiff wrote a letter to Perlman seeking to resume family participation in the 'Eid holy days. Plaintiff received a response to his letter to Perlman from Karen Bellamy, Director of the Inmate Grievance Program. On January 31, 2009, plaintiff wrote a letter to the Commissioner regarding violations of his religious rights. On March 9, 2009, plaintiff received a letter from Perlman which stated, "there are no plans at the current time to reinstate two religious family events".*fn9

B. Weekly Congregate Religious Services

In January 2009, plaintiff was transferred to CSF. In May 2009, plaintiff claims he was harassed by his housing unit officer, C.O. Stevens.*fn10 Plaintiff filed grievances against C.O. Stevens and plaintiff alleges that as a result, C.O. Stevens issued plaintiff a misbehavior report for non-compliance to cell standards.*fn11 Plaintiff claims that, in CSF, once a prisoner is issued a misbehavior report, the inmate is transferred from the general population to keeplock housing, even for pre-hearing confinement. In this instance, however, plaintiff was not placed in keeplock for Steven's non-compliance report. Plaintiff claims that when Stevens realized that plaintiff was not placed in keeplock, Stevens issued another misbehavior report claiming that plaintiff verbally threatened him.*fn12 After this report was issued, plaintiff was placed in keeplock pending a Tier 2 disciplinary proceeding. On August 1, 2009, plaintiff was found guilty of the violations and placed in keeplock for 30 days until September 1, 2009.

DOCS Directive 4202 required inmates in keeplock to notify officials, in writing, upon commencement of keeplock confinement, if the inmate wished to attend regularly scheduled congregate religious services. Plaintiff admits that he did not file such a request to attend services on the first Friday in August 2009 but that he filed three separate requests to attend services on the remaining three Fridays in August 2009. Plaintiff addressed each of request to defendant Martuscello. Martuscello was the Deputy Superintendent of Security at CSF and Acting Superintendent in August 2009. Plaintiff alleges that Martuscello was, "responsible for either deciding plaintiff's requests to attend congregate religious services while on keeplock , or designat[ing] a subordinate to so decide plaintiff's requests". Martuscello forwarded plaintiff's requests to defendant Shanley. Shanley was the Captain at CSF and Acting Deputy Superintendent of Security in August 2009. Shanley denied plaintiff's requests explaining that plaintiff was given a misbehavior report for threats. Plaintiff claims that there was no further explanation for the refusal to allow him to attend services.

Plaintiff wrote letters to Martuscello contending that Shanley's denials were insufficient and filed grievances regarding the denials. Plaintiff's first grievance was denied. Plaintiff appealed the denial to the Superintendent (Martuscello) who upheld the IGRC decision. CORC affirmed the decision with regard to the first grievance. Plaintiff's second grievance was accepted by IGRC and CORC.*fn13

C. Saturday Religious Study

On February 6, 2010, while still incarcerated at CSF, plaintiff was scheduled to attend a Ta'lim class at 12:30 p.m. Plaintiff received a call-out slip and his name was on the attendance list. At that time, plaintiff was housed in the A-3 unit and his housing officers were C.O. Saltsman and C.O Adams. At 12:30 p.m., plaintiff stopped Saltsman as he was passing plaintiff's cell to inform him of his "callout". Saltsman reviewed the call out slip but did not release plaintiff from his cell. Plaintiff also informed C.O. Adams of his call-out and while Adams verbally acknowledged that studies were being held and did not dispute that plaintiff was scheduled to attend, he did not release plaintiff. Plaintiff missed the religious studies class. Plaintiff filed a grievance regarding the matter. Plaintiff claims he was interviewed regarding the matter but his grievance was denied.*fn14

D. Causes of Action

On January 7, 2011, plaintiff filed an amended complaint asserting eight causes of action as follows: In Counts One, Two and Three, plaintiff claims that Perlman and Leonard violated his rights to Equal Protection, his First Amendment rights and his right to free exercise of religion pursuant to the RLUIPA because the DOCCS policy limited the number of annual religious family events for Muslim prisoners while Native American inmates were allowed nine such events. In Counts Four and Five, plaintiff claims that Martuscello and Shanley violated his First Amendment rights, his rights pursuant to the RLUIPA and his Fourteenth Amendment right to Equal Protection when they refused to allow plaintiff to attend weekly religious services while plaintiff was in keeplock. In Count Six, plaintiff alleges a state law claim against Martuscello for negligent supervision. In Count Seven, plaintiff claims that Saltsman and Adams violated his First Amendment rights and rights under the RLUIPA when they failed to allow him to attend religious studies on February 6, 2010. In Count Eight, plaintiff alleges state law negligence claims against Saltsman and Adams. (Dkt. No. 5).

II. Report-Recommendation

On August 12, 2011, defendants moved to dismiss arguing: (1) that Perlman, Leonard and Martuscello lacked personal involvement; (2) plaintiff's religious claims against Martuscello, Shanley, Saltsman and Adams should be dismissed for failure to state a claim; (3) the equal protection claims against Martuscello and Shanley should be dismissed for failure to state a claim; and (4) the negligence claims are barred by Corrections Law § 24.*fn15 Plaintiff opposed the motion and cross moved to amend the complaint.

On February 28, 2012, Magistrate Judge Homer recommended that the Court grant in part and deny in part defendants' motion to dismiss. Magistrate Homer recommended that defendants' motion to dismiss be granted as to (1) plaintiff's First Amendment and RLUIPA claims against Martuscello and Shanley for denying plaintiff attendance at Friday religious services; (2) plaintiff's First Amendment and RLUIPA claims against Saltsman and Adams for denying plaintiff attendance at Saturday religious study group; (3) plaintiff's equal protection claim against Martuscello and Shanley for precluding plaintiff and other keeplock inmates from attending religious services; and (4) plaintiff's negligence claims against Martuscello, Saltsman and Adams. Magistrate Judge Homer also found that plaintiff did not establish personal involvement on the part of Martuscello. Magistrate Judge Homer also recommended denying plaintiff's motion to amend. Plaintiff sought to add New York State as a defendant and Magistrate Judge Homer reasoned that such an amendment would be futile under the Eleventh Amendment.

III. Objections

Both parties have objected to the Report-Recommendation. Defendants argue that Judge Homer erred when he failed to dismiss all claims against Leonard due to lack of personal involvement. Specifically, defendants object to the reliance upon exhibits attached to plaintiff's complaint as evidence of Leonard's personal involvement. Plaintiff also objects to the Report- Recommendation on various grounds. Plaintiff argues that Magistrate Judge Homer erred when he found: (1) that Martuscello lacked personal involvement; (2) plaintiff's religious rights were not substantially burdened when he was denied the right to attend three consecutive Jum'ah services; (3) defendants asserted a legitimate penological interest sufficient to defeat plaintiff's First Amendment ...

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