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Selam Selah v. Brian Fischer

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


July 3, 2012

SELAM SELAH, PLAINTIFF,
v.
BRIAN FISCHER, COMMISSIONER; JUSTIN TAYLOR, SUPERINTENDENT; KAREN BELLAMY, DIRECTOR OF DOCCS INMATE GRIEVANCE PROGRAM; T. KILLIAN, SENIOR CHAPLAIN; MARK LEONARD, DIRECTOR OF MINISTERIAL AND FAMILY SERVICES; ABUNA FOXE, DOCCS RASTAFARIAN RELIGIOUS ADVISOR; CHERYL MORRIS, DIRECTOR OF MINISTERIAL SERVICES; FR. E. MANTZOURIS, GREEK ORTHODOX CHRISTIAN CHAPLAIN; AND NEW YORK DOCCS, DEFENDANTS.

The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge

REPORT AND RECOMMENDATION

Pro se plaintiff Selam Selah, a New York State prison inmate, has commenced this action against the New York State Department of Corrections and Community Supervision ("DOCCS"), the agency's Commissioner, and eight other DOCCS employees, pursuant to 42 U.S.C. § 1983, alleging deprivation of his civil rights. In his complaint plaintiff asserts that the defendants have violated his constitutional rights to equal protection and free religious exercise, as well as those guaranteed under the Religious Land Use and Institutionalized Person Acts ("RLUIPA"), 42 U.S.C. § 2000cc et seq., by failing to accommodate his religious beliefs and permit him to practice his chosen religion, while members of other religious sects, including Rastifarians, are treated more favorably.

Currently pending before the court in connection with this action is a motion brought by the defendants seeking dismissal of plaintiff's complaint for failure to state a cause of action upon which relief may be granted. In their motion defendants argue that plaintiff's complaint fails to comply with governing pleading requirements and that certain of the claims set forth are not legally cognizable. In addition, defendants assert that they are entitled to qualified immunity from suit. For the reasons set forth below, I recommend that plaintiff's claims against the DOCCS be dismissed, but that defendants' motion otherwise be DENIED.

I. BACKGROUND *fn1

Plaintiff is a prison inmate entrusted to the custody of the DOCCS.

See generally Amended Complaint (Dkt. No. 84). While at the time this action was commenced plaintiff was confined within the Gouverneur Correctional Facility ("Gouverneur"), located in Gouverneur, New York, see Complaint (Dkt. No. 1) ¶ 2, he was later transferred into the Orleans Correctional Facility, located in Albion, New York, Amended Complaint (Dkt. No. 84) ¶ 34. He is currently incarcerated at the Clinton Correctional Facility, located in Dannemora, New York. See Dkt. entry of 1/19/12. Plaintiff's inter-facility transfers, however, do not appear to impact upon his claims, which address agency-wide DOCCS policies and practices. *fn2

Id.

Plaintiff subscribes to the religious tenets of the Ethiopian Orthodox Christian Faith, which is also known as Ethiopian-Egyptian Coptic Orthodox Christianity. Amended Complaint (Dkt. No. 84) ¶ 21; see also Complaint (Dkt. No. 1) p. 20. Plaintiff's religion has many similarities to Rastafarianism with the exception that its teachings acknowledge Jesus Christ as the Messiah, whereas Rastafarians do not. Amended Complaint (Dkt. No. 84) ¶ 21.

Plaintiff's complaint in this action centers upon defendants' alleged failure to recognize and accommodate his religion. Plaintiff maintains that this failure is manifested through defendants' 1) refusal to permit plaintiff and others of his religious persuasion to possess and display head gear, a prayer shawl, a prayer girdle, a prayer rug, and other appropriate religious attire and artifacts consistent with their beliefs; 2) refusal to allow members of plaintiff's sect to observe and commemorate seven specified major holy days and nine minor holy days; 3) denial of the opportunity to participate in congregate religious services and education; 4) failure to provide meals consistent with old testament dietary laws; 5) failure to permit the plaintiff and his fellow Ethiopian Orthodox Christians to wear beards and dreadlocks or braids; and 6) refusal to exempt him from work on Saturdays and Sundays. Plaintiff maintains that despite his complaints to various prison officials within the DOCCS hierarchy, his requests for accommodation have not been honored, while Rastafarians are provided all or most of the accommodations now sought.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on December 7, 2009. Dkt. No. 1.

Since inception of the action the court has been besieged with numerous and oftentimes repetitive serial filings by the plaintiff requesting various forms of relief, resulting in a procedural history which, to date, includes some 124 docket entries spanning over the two years during which the case has been pending, despite the fact that issue has not yet been joined by the filing of an answer. In addition to the standard motion for leave to proceed in forma pauperis , Dkt. No. 2, that history includes the filing of siX motions for a temporary restraining order and/or preliminary injunction, three requests for the appointment of pro bono counsel, and an application for certification of the matter as a class action. See Dkt. No. 5, 6, 69, 74, 86, 89, 109, 115, and 122.

On September 14, 2011, with leave of court, plaintiff filed an amended complaint -- the currently operative pleading in the case. *fn3 Dkt. No. 84. Plaintiff's complaint, as amended, names as defendants DOCCS Commissioner Brian Fischer; DOCCS Rastafarian Religious Advisor Abuna Foxe; the agency's Greek Orthodox Christian Chaplain, Fr. E. Mantzouris; Cheryl Morris, the DOCCS Director of Ministerial Services; Karen Bellamy, the Director of the DOCCS Inmate Grievance Program; Justin Taylor, the Superintendent at Gouverneur; T. Killian, the Senior Chaplain at Gouverneur; and Mark Leonard, the DOCCS Director of Ministerial and Family Services, all of whom are sued in both their individual and official capacities, as well as the DOCCS itself. Id. Plaintiff's complaint alleges violation of his right to freely exercise his chosen religion, as guaranteed under the First Amendment to the United States Constitution, the denial of equal protection, in violation of the Fourteenth Amendment, and infringement of his statutory rights under the RLUIPA, and seeks various forms of monetary, declaratory, and injunctive relief. *fn4 Id.

In response to plaintiff's complaint defendants have moved seeking its dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 111. In support of that motion, defendants argue that 1) plaintiff's amended complaint fails to meet the governing pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure; 2) plaintiff has failed to demonstrate the existence of a plausible claim under any of the constitutional or statutory provisions cited; 3) plaintiff's claims against the DOCCS are subject to dismissal on the basis of sovereign immunity and the Eleventh Amendment; and 4) in any event the individual defendants are entitled to qualified immunity from suit. Id. Plaintiff has since submitted papers in opposition to defendants' motion. Dkt. No. 113.

Defendants' motion, which is now been fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Dismissal Motion Standard

A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 554, 555, 127 S. Ct. 1955, 1964-65 (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see also id. While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. 679, 129 S. Ct. at 1950.

In deciding a Rule 12(b)(6) dismissal motion, though the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party, Hudson v. Palmer , 468 U.S. 517, 541 n.1, 104 S. Ct. 3194, 3208 n.1 (1984) (citing cases); Miller v. Wolpoff & Abramson, LLP , 321 F.3d 292, 300 (2d Cir. 2003), cert. denied , 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory , 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.), it is "'not bound to accept as true a legal conclusion couched as a factual allegation'", Iqbal , 129 S. Ct. at 1950 (quoting Twombly , 550 U.S. at 555, 127 S. Ct. at 1965). To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim that is plausible on its face. Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly , 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly , 550 U.S. at 570, 127 S. Ct. at 1974) (alteration in original).

When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus , 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976) (internal quotations omitted)); Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d Cir. 2008) (citations omitted); Kaminski v. Comm'r of Oneida Cnty. Dep't of Social Servs. , 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011).

B. The DOCCS as a Named Defendant

In their motion defendants argue that plaintiff's claims against the DOCCS are in reality brought against the State and are therefore subject to dismissal on the basis of sovereign immunity. *fn5

The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. *fn6 Alabama v. Pugh , 438 U.S. 781, 782, 98 S. Ct. 3057, 3057-58 (1978). This absolute immunity which states enjoy under the Eleventh Amendment extends to state agencies such as the DOCCS. Salvodon v. New York , No. 11 Civ. 2190(PAC)(KNF), 2012 WL 1694613, at *3 (S.D.N.Y. May 14, 2012); Bloom v. Fischer , No. 11--CV--6237L, 2012 WL 45470, at *3 (W.D.N.Y. Jan. 3, 2012) (citing Whitfield v. O'Connell , 09 Civ.1925, 2010 WL 1010060, at *4 (S.D.N.Y. Mar. 18, 2010) ("[B]ecause Section 1983 does not abrogate a state's sovereign immunity and the State of New York has not waived its immunity, claims against DOCS for both monetary and injunctive relief are barred under the Eleventh Amendment") (citations omitted), aff'd, 402 Fed. App'x 563 (2d Cir. 2010), cert. denied , ---- U.S. ----, 131 S. Ct. 2132 (2011)) (other citation omitted); see also Richards v. State of New York Appellate Div., Second Dep't , 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing Pugh and Cory v. White , 457 U.S. 85, 89-91, 102 S. Ct. 2325, 2328-29 (1982)). Accordingly, plaintiff's claims against the DOCCS are subject to dismissal. *fn7

C. Compliance with Rules 8 and 10

Defendants next argue that plaintiff's amended complaint fails to comply with the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. *fn8 As was previously noted, Rule 8 of the Federal Rules of Civil Procedure, which sets forth the general pleading requirements applicable to most complaints filed in the federal courts, requires that such a pleading include "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a); see In re WorldCom, Inc. , 263 F. Supp. 2d 745, 756 (S.D.N.Y. 2003). The purpose of Rule 8 "'is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.'" Hudson v. Artuz , 1998 WL 832708, *1 (quoting Powell v. Marine Midland Bank , 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. Califano , 75 F.R.D. 497, 498 (D.D.C.1977))) (other citation omitted). A complaint asserting only bare legal conclusions is insufficient. Iqbal , 556 U. S. at 678, 129 S. Ct. at 1950 (quoting Twombly , 550 U.S. at 555, 127 S. Ct. at 1965). Instead, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S. Ct. at 1974. A claim will have "facial plausibility when the plaintiff pleads [sufficient] factual content [to] allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S. Ct. at 1949.

In the end, Rule 8 contemplates only notice pleading; under the rule's mandates, a complaint must sufficiently apprise a defendant as to the nature of plaintiff's claims with sufficient clarity to allow that defendant to answer and prepare for trial. Salahuddin v. Cuomo , 861 F.2d 40, 42 (2d Cir. 1988). To the extent that greater detail is required in order to effectively defend against such claims, "it is the role of the litigation tools of discovery and summary judgment to weed out unmeritorious suits." In re Natural Gas Commodity Litig. , 337 F. Supp. 2d 498, 506 (S.D.N.Y. 2004) (citation omitted).

To be sure, a complaint lodged by a pro se plaintiff can properly be dismissed under appropriate circumstances for failing to comply with the applicable pleading requirement that it be "short and plain." Philips , 408 F.3d at 130; Pickering-George v. Cuomo , No. 1:10-CV-771, 2010 WL 5094629, at * 4 n.8 (N.D.N.Y. Dec. 8, 2010) (Suddaby, J.) (citing cases). "Dismissal, however, is 'usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Hudson , 1998 WL 832708, *2 (citation omitted).

Turning to Federal Rule of Civil Procedure 10, I note that this provision imposes a requirement whose intent is largely pragmatic, requiring, among other things, that a pleading consist of separately numbered paragraphs "each of which shall be limited as far as practicable to a statement of a single set of circumstances[.]" Fed. R. Civ. P. 10(b).

Rule 10(b) is designed to assist litigants and the court by allowing the interposition of a responsive pleading and the corresponding framing of issues with sufficient clarity to allow an orderly and meaningful presentation of a plaintiff's claims and any corresponding defenses, either on motion or at trial. See Flores v. Graphtex , 189 F.R.D. 54, 55 (N.D.N.Y. 1999).

Analysis of plaintiff's amended complaint, in the face of defendants' motion, is informed not only by the salutary purposes to be served by these pleading requirements, but additionally by two equally important principles. First, it is a well-established requirement that a complaint prepared by a pro se litigant is entitled to liberal construction in his or her favor. Salahuddin v. Cuomo , 861 F.2d at 42-43. Additionally, courts generally favor adjudication of cases on their merits, rather than on the basis of a technicalities or procedural niceties. Id. at 42; see also Zdziebloski v. Town of East Greenbush, New York , 101 F. Supp. 2d 70, 72 (N.D.N.Y. 2000)(citing Salahuddin ); Upper Hudson Planned Parenthood, Inc. v. Doe , 836 F.Supp. 939, 943 n.9 (N.D.N.Y. 1993).

A counterweight to these considerations, which militate in favor of lenity toward a plaintiff, is the challenge presented by plaintiff's lengthy and verbose complaint, particularly to the defendants who must frame a proper responsive pleading, as well as to the court in discerning the contours of the plaintiff's claims. "[U]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Salahuddin v. Cuomo, 861 F.2d at 42; see also Ceparano v. Suffolk Cnty., No. 10-CV-2030 (SJF) (ATK), 2010 WL 5437212, at *3 (E.D.N.Y. Dec. 15, 2010).

In this instance, while plaintiff's original complaint suffered from his failure to include numbered paragraphs, as demanded by Rule 10, this deficiency has been cured, and plaintiff's amended complaint, as defendants acknowledge, does contain allegations that are separately numbered. Though many of the paragraphs contained in plaintiff's amended complaint are prolix and contain more than the "single set of circumstances" contemplated under Rule 10(b), in the court's view the amended complaint is sufficiently parsed out to permit formulation of proper answer.

The court has also reviewed the allegations set forth in plaintiff's complaint to determine whether they adequately apprise the defendants of the nature of his claims. Though plaintiff's amended complaint is indeed unnecessarily lengthy, laced with unnecessary verbiage, and accompanied by random and seemingly unorganized attachments, it provides fair notice to defendants of the claims being asserted. Distilled to its core, the complaint discloses the existence of cognizable claims that defendants have interfered with plaintiff's free exercise of his religious beliefs in violation of the First Amendment and RLUIPA, and additionally that he has been denied equal protection based upon the differences between the treatment afforded to members of his religion and others within the DOCCS system. Where, as here, a complaint, though burdened with irrelevant detail, does articulate, recognizable, alleged unconstitutional behavior, dismissal is not warranted . See Prezzi v. Schelter , 469 F.2d 691, 692 (2d Cir. 1972) (per curiam), cert. denied , 411 U.S. 935, 93 S. Ct. 1911 (1973) with these guiding principles as a backdrop. I have concluded that plaintiff's complaint, though by no means a model of clarity, gives fair notice of the claims being asserted in the action and therefore satisfies the minimal pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Shomo v. State of New York, 374 Fed. App'x 180, 2010 WL 1628771 (2d Cir. 2010) (cited in accordance with Fed. R. App. P. 32.1) (citing Phillips , 408 F.3d at 130).

The bases for plaintiff's claims are sufficiently delineated in his pleading, in which he asserts violations of the First Amendment's Free Exercise Clause, the Equal Protection Clause of the Fourteenth Amendment, and the RLUIPA. The facts forming the underpinnings of those claims are also set forth, including the religious accommodations plaintiff has requested but has been denied. In sum, when read with the requisite deference owed to the plaintiff as a pro se inmate, albeit a somewhat seasoned litigator, I conclude that plaintiff's amended complaint meets the requirements of Rules 8 and 10, and therefore recommend denial of the portion of defendants' motion asserting his failure to comply with those rules.

D. Legal Sufficiency of Plaintiff's Religious Exercise Claims In their motion, citing Iqbal and Twombly , defendants argue that plaintiff's amended complaint, with its conclusory allegations, fails to state a claim upon which relief may be granted. That argument is only halfheartedly stated, and does not include any analysis of plaintiff's constitutional and statutory claims. The court has nonetheless reviewed the allegations of plaintiff's complaint with an eye toward determining whether his claims pass muster under the governing Rule 12(b)(6) standard, discussed above.

As a starting point, I note that it is well-established that prison inmates do not shed all rights upon entry into the prison system. While inmates confined within prison facilities are by no means entitled to the full panoply of rights guaranteed under the United States Constitution, including its First Amendment, the Free Exercise Clause of that amendment does afford them at least some measure of constitutional protection, including of their right to participate in congregate religious services. See Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974) ("In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system."); see also Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) ("It is well established that prisoners have a constitutional right to participate in congregate religious services.") (citing cases). That right extends under certain circumstances beyond mere attendance at congregate religious services, and also prohibits adoption of polices or practices that burden an inmate's sincerely held religious beliefs unless they are reasonably related to legitimate penological interests. O'Lone v. Estate of Shabazz , 482 U.S. 342, 349, 107 S. Ct. 2400 (1987). Courts must analyze free exercise claims asserted by prison inmates by evaluating "1) whether the practice asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely held; 2) whether the challenged practice of the prison officials infringes upon the religious belief; *fn9 and 3) whether the challenged practice of the prison officials furthers some legitimate penological objective." Farid v. Smith , 850 F.2d 917, 926 (2d Cir.1988) (citations omitted).

Similar protections are accorded to inmates under the RLUIPA, a statutory enactment forming the basis for some of plaintiff's claims. That statute provides, in pertinent part, that [n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of a 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(a). The familiar principles informing the analysis of plaintiff's free exercise claim under the First Amendment are similar to those applicable to his RLUIPA cause of action, although the two claims are analyzed under slightly different frameworks. See Salahuddin v. Goord , 467 F.3d at 264.

Plaintiff's complaint also asserts an equal protection claim, arguing that he and other members of his designated religion are treated differently by the defendants than Rastafarian inmates despite the similarity of their religious beliefs. The Equal Protection Clause directs state actors to treat similarly situated persons alike. See City of Cleburne, Texas v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). To prove a violation of the Equal Protection Clause, a plaintiff must demonstrate that he or she was treated differently than others similarly situated as a result of intentional or purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski , 54 F.3d 1050, 1057 (2d Cir.1995) (citing, inter alia , McCleskey v. Kemp , 481 U.S. 279, 292, 107 S. Ct. 1756, 1767 (1987)). The plaintiff must also show that the disparity in treatment "cannot survive the appropriate level of scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not reasonably related to [any] legitimate penological interests." Phillips , 408 F.3d at 129 (quoting Shaw v. Murphy , 532 U.S. 223, 225, 121 S. Ct. 1475 (2001) (internal quotation marks omitted)).

Plaintiff's claims of interference with his free religious exercise rights under the First Amendment and the RLUIPA, and an alleged Equal Protection violation based upon the difference between defendants' treatment of members of his religion and Rastafarians, are plausibly stated in his amended complaint. Plaintiff has alleged the existence of specific policies and practices within the prison facilities in which he has been housed prohibiting the growing of beards and wearing of dreadlocks or braids, the refusal to permit possession and wearing religious head coverings, the failure to permit the possession of prayer rugs, religious shawls and religious girdles, the failure to provide a kosher diet mandated by the tenets of his religion, the failure to permit the observance of specified religious holidays, and the failure to excuse the plaintiff from working on Saturdays and Sundays. *fn10 While in response defendants undoubtedly will either deny those allegations or assert that those policies or practices are justified by legitimate penological concerns, and in the end may well prevail in defending against those claims, the allegations contained within plaintiff's complaint assert sufficient facts to permit the court to conclude that plausible claims have been stated under the First Amendment, the RLUIPA, and the Equal Protection Clause of the Fourteenth Amendment. I therefore recommend the defendants' motion seeking dismissal plaintiff's claims as insufficiently stated on the merits be denied.

E. Qualified Immunity

In their motion defendants also assert their entitlement to qualified immunity from suit.

Qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982) (citations omitted). "In assessing an officer's eligibility for the shield, 'the appropriate question is the objective inquiry whether a reasonable officer could have believed that [his or her actions were] lawful, in light of clearly established law and the information the officer[ ] possessed." Kelsey v. Cnty. of Schoharie , 567 F.3d 54, 61 (2d Cir. 2009) (quoting Wilson v. Layne , 526 U.S. 603, 615, 119 S.Ct. 1692 (1999)). The law of qualified immunity seeks to strike a balance between the need to hold government officials accountable for irresponsible conduct and the need to protect them from "harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan , 555 U.S. 223, 129 S. Ct. 808, 815 (2009) .

In Saucier v. Katz , 533 U.S. 194, 121 S. Ct. 2151 (2001), the Supreme Court "mandated a two-step sequence for resolving government official's qualified immunity claims." Pearson , 555 U.S. at 232, 129 S. Ct. at 815-16. The first step requires the court to consider whether, taken in the light most favorable to the party asserting immunity, the facts alleged show that the conduct at issue violated a constitutional right, *fn11 Kelsey , 567 F.3d at 61, with "the second step being whether the right is clearly established", Okin v. Village of Cornwall-On-Hudson Police Dep't , 577 F.3d 415, 430 n.9 (citing Saucier ). *fn12 Expressly recognizing that the purpose of the qualified immunity doctrine is to ensure that insubstantial claims are resolved prior to discovery, the Supreme Court retreated from the prior Saucier two-step mandate in its later decision, in Pearson concluding that because "[t]he judges of the district courts and courts of appeals are in the best position to determine the order of decisionmaking [that] will best facilitate the fair and efficient disposition of each case", those decision makers "should be permitted to exercise their sound discretion in deciding which of the . . . prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." *fn13 Pearson , 555 U.S. at 236, 242, 129 S. Ct. at 818, 821. In other words, as recently emphasized by the Second Circuit, the courts "are no longer required to make a 'threshold inquiry' as to the violation of a constitutional right in a qualified immunity context, but we are free to do so." Kelsey , 567 F.3d at 61(citing Pearson , 129 S. Ct. at 821) (emphasis in original).

For courts engaging in a qualified immunity analysis, "the question after Pearson is 'which of the two prongs . . . should be addressed in light of the circumstances in the particular case at hand.'" Okin , 577 F.3d 430 n.9 (quoting Pearson ). "The [ Saucier two-step] inquiry is said to be appropriate in those cases where 'discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.'" Kelsey , 567 F.3d at 61 (quoting Pearson , 129 S. Ct. at 818).

Qualified immunity is a defense not often particularly well-suited for a disposition in a motion to dismiss under Rule 12(b)(6). Undeniably, the legal rights asserted in plaintiff's complaint are and were well-known and established at the relevant times. Salahuddin v. Goord , 467 F.2d at 277; see also Amaker v. Goord , No. 06--CV--490A(Sr), 2010 WL 2595286, at * 10 (W.D..Y. Mar. 25, 2010), report and recommendation adopted , 2010 WL 2572972 (W.D.N.Y. Jun. 23, 2010). Unfortunately, the question of whether prison officials in the positions of the defendants would reasonably have known that their actions toward the plaintiff, as alleged in his complaint, abridged those rights is inextricably intertwined with the merits of plaintiff's claims such that, at least at this early procedural juncture, it cannot be said that the defendants are entitled to qualified immunity. See Amaker , 2010 WL 2595286, at * 10; Dicks v. Binding Together, Inc. , No. 03 Civ. 7411, 2007 WL 1462217, at * 10 (S.D.N.Y. May 18 2007), aff'd in part , 382 Fed. App'x 28 (2d Cir. 2010) (summary order).

IV. SUMMARY AND RECOMMENDATION

With the passage of more than two years since the filing of this action and many procedural stops along the way, plaintiff has now filed an amended complaint which, though unquestionably verbose, is separated into paragraphs, sets forth allegations placing the defendants on notice of the claims being asserted, and contains sufficient facts demonstrating that at least plausible claims under the First and the Fourteenth Amendments to the Constitution and the RLUIPA have been stated. With the exception of his claims against the DOCCS, an agency of the state entitled to sovereign immunity and the protections of the Eleventh Amendment, I recommend a finding that plaintiff's claims are plausibly stated and thus not subject to dismissal at this early procedural juncture. Additionally, I recommend a finding that defendants' claim of entitlement to qualified immunity cannot be determined at this juncture. Based upon the foregoing, it is hereby respectfully

RECOMMENDED that defendants' motion to dismiss plaintiff's complaint (Dkt. No. 111) be GRANTED, in part, and that his claims against the DOCCS be DISMISSED, but that the motion be DENIED in all other respects.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report, recommendation, and order upon the parties in accordance with this court's local rules.

Syracuse, NY

Not Reported in F.Supp.2d, 2008 WL 4384460 (N.D.N.Y.)

(Cite as: 2008 WL 4384460 (N.D.N.Y.)) and no objections submitted thereto, it is

ORDERED, that:

United States District Court, 1. The Report-Recommendation is hereby adopted in its entirety.

N.D. New York.

Juan TEJADA, Plaintiff, 2. The defendants' motion to dismiss for failure to v. state a claim (Dkt. No. 12) is granted, and plaintiff's Mr. MANCE, Superintendent, Marcy C.F.; Souza, complaint is dismissed in its entirety.

Correctional Officer, Marcy C.F.; and Zurawski, Correctional Officer, Marcy C.F., Defendants. 3. The Clerk of the Court shall serve a copy of this No. 9:07-CV-0830. Order upon all parties and the Magistrate Judge assigned to this case.

Only the Westlaw citation is currently available.

Sept. 22, 2008.

Juan Tejada, Beacon, NY, pro se. IT IS SO ORDERED.

Hon. Andrew M. Cuomo, Attorney General for the State REPORT-RECOMMENDATION of New York, Roger W . Kinsey, Esq., of Counsel, New York, NY, for Defendants. GEORGE H. LOWE, United States Magistrate Judge.

This pro se prisoner civil rights action, commenced

ORDER pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Norman A. Mordue, Chief United States NORMAN A. MORDUE, Chief Judge. District Judge, for Report and Recommendation with *1 The above matter comes to me following a regard to any dispositive motions filed, pursuant to 28 Report-Recommendation by Magistrate Judge George H. U.S.C. § 636(b) and Local Rule 72.3(c). Generally, in his Lowe, duly filed on the 12th day of September 2008. Complaint, Juan Tejada ("Plaintiff") alleges that three Following ten days from the service thereof, the Clerk has employees of the New York State Department of sent me the file, including any and all objections filed by Correctional Services ("DOCS") violated his rights under the parties herein. the First, Eighth and Fourteenth Amendments when they Such Report-Recommendation, which was mailed to denied Plaintiff (and other inmates) an opportunity to plaintiff's last known residence, was returned to the Court exercise outdoors for one hour per day on approximately as undeliverable to plaintiff at such address. See Dkt. No. four days between the period of May 5, 2007, and July 15, 18. 2007, at Marcy Correctional Facility ("Marcy C.F."). (See generally Dkt. No. 1 [Plf.'s Compl.].) Currently pending Additionally, plaintiff was previously advised by the before the Court is Defendants' motion to dismiss for Court that plaintiff was required to promptly notify the failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Clerk's Office of any change in his address, and that (Dkt. No. 12.) For the reasons set forth below, I failure to keep such office apprised of his current address recommend that Defendants' motion be granted. would result in the dismissal of the instant action. See Dkt. I. BACKGROUND No. 6, at page 3.

After careful review of all of the papers herein, including the Magistrate Judge's Report-Recommendation, Construed with the special leniency normally afforded nothing; FN5 to the pleadings of pro se civil rights litigants, Plaintiff's

Complaint and the attachments thereto (which are FN5. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1, incorporated by reference into the Complaint) allege as at 26 [Ex. B to Plf.'s Compl., attaching letter follows: from Plaintiff dated May 23, 2007]; Dkt. No. 1, at 14-19 [Ex. B to Plf.'s Compl., attaching three 1. On May 5, 2007, DOCS Correctional Officer different versions of letter from Plaintiff dated Souza ("Defendant Souza") and Correctional Officer June 24, 2007].)

Zurawski ("Defendant Zurawski") wrongfully deprived Plaintiff, and other inmates in the Marcy C.F. Special 6. At unidentified times before May 26, 2007, Housing Unit ("S.H.U."), of the one hour of outdoor Correctional Officers at Marcy C.F. were, in some way, exercise that they were permitted by DOCS Directive "being racist towards the Spanish [inmates in the Marcy 4933; FN1 C.F. S.H.U.]"; FN6

FN1. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1, FN6. (Dkt. No. 1, at 23 [Ex. B to Plf.'s Compl., at 7 [Ex. A to Plf.'s Compl., attaching letter from attaching letter from Plaintiff dated May 26, Plaintiff dated May 5, 2007].) 2007].)

*2 2. In addition, at unidentified times before May 10, 7. On July 5, 2007, Defendant Souza threatened to 2007, Defendants Souza and Zurawski wrongfully file a false misbehavior report against Plaintiff and his deprived Plaintiff, and other inmates in the Marcy C.F. cellmate (who spoke only Spanish); FN7

S.H.U., of unspecified "supplies" and their radios; FN2

FN7. (Dkt. No. 1, at 32-35 [Ex. B to Plf.'s

FN2. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1, Compl., attaching letter from Plaintiff dated July at 20-21 [Ex. B to Plf.'s Compl., attaching two 5, 2007].) versions of letter from Plaintiff dated May 10, 2007].) 8. On July 9, 2007, Defendant Zurawaski deprived

Plaintiff of the one hour of outdoor exercise that he was 3. On May 23, 2007, Defendants Souza and Zurawski permitted by DOCS Directive 4933, in retaliation against wrongfully deprived Plaintiff, and other inmates in the him for having filed a grievance against Defendant Marcy C.F. S.H.U., of the one hour of outdoor exercise Zurawaski; FN8 and

that they were permitted by DOCS Directive 4933; FN3

FN8. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1,

FN3. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1, at 30 [Ex. B to Plf.'s Compl., attaching letter at 26 [Ex. B to Plf.'s Compl., attaching letter from Plaintiff dated July 9, 2007].) from Plaintiff dated May 23, 2007].)

9. On July 15, 2007, Defendants Souza and Zurawski 4. That same day, two unidentified inmates were wrongfully deprived Plaintiff, and other inmates in the "bitten [sic] ... for standing up [to] this abuse [of the Marcy C.F. S.H.U., of the one hour of outdoor exercise inm

FN4 ates' right to one hour of outdoor exercise per day];" that they were permitted by DOCS Directive 4933.FN9

FN9. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1,

FN4. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.].) at 31 [Ex. B to Plf.'s Compl., attaching letter from Plaintiff dated July 15, 2007].)

5. Also on that day, Plaintiff brought the deprivation of outdoor exercise to the attention of Superintendent As a result of these deprivations, Plaintiff requests Mance ("Defendant Mance"), who subsequently did both injunctive and monetary relief.FN10 *3 Under Fed.R.Civ.P. 12(b)(6), a defendant may FN10. (Dkt. No. 1, ¶¶ 7, 9 [Plf.'s Compl.].) move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Based on these factual allegations, I liberally construe It has long been understood that a defendant may base Plaintiff's Complaint and its attachments as asserting the such a motion on either or both of two grounds: (1) a following four legal claims against Defendants: (1) a claim challenge to the "sufficiency of the pleading" under of inadequate prison conditions and/or harassment under Fed.R.Civ.P. 8(a)(2); FN12 or (2) a challenge to the legal the Eighth Amendment; (2) a procedural due process cognizability of the claim.FN13 claim under the Fourteenth Amendment; (3) an equal FN12. See 5C Wright & Miller, Federal Practice protection claim under the Fourteenth Amendment; and and Procedure § 1363 at 112 (3d ed. 2004) ("A (4) a retaliation claim (against Defendant Souza) under the motion to dismiss for failure to state a claim for First Amendment. FN11 relief under Rule 12(b)(6) goes to the sufficiency of the pleading under Rule 8(a)(2).") [citations FN11. Due to the special solicitude normally omitted]; Princeton Indus., Inc. v. Rem, 39 B.R. afforded to the pleadings of pro se civil rights 140, 143 (Bankr.S.D.N.Y.1984) ("The motion litigants, when a district court is determining under F.R.Civ.P. 12(b)(6) tests the formal legal what legal claims a pro se civil litigant has sufficiency of the complaint as to whether the raised, "the court's imagination should be limited plaintiff has conformed to F.R.Civ.P. 8(a)(2) only by [the plaintiff's] factual allegations, not by which calls for a 'short and plain statement' that the legal claims set out in his pleadings." Phillips the pleader is entitled to relief."); Bush v. v. Girdich, 408 F.3d 124, 130 (2d Cir.2005) Masiello, 55 F.R.D. 72, 74 (S.D.N.Y.1972) [citations omitted]. ("This motion under Fed.R.Civ.P. 12(b)(6) tests the formal legal sufficiency of the complaint, B. Summary of Grounds in Support of Defendants' determining whether the complaint has M otion to Dismiss conformed to Fed.R.Civ.P. 8(a)(2) which calls for a 'short and plain statement that the pleader Generally, Defendants' motion to dismiss is premised is entitled to relief.' "). on the following seven grounds: (1) Plaintiff's Complaint fails to allege facts plausibly suggesting a deprivation that FN13. See Swierkiewicz v. Sorema N.A., 534 was sufficiently serious to constitute a violation of the U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 Eighth Amendment; (2) Plaintiff's Complaint fails to (2002) ("These allegations give respondent fair allege facts plausibly suggesting the personal involvement notice of what petitioner's claims are and the of Defendant Mance (a supervisor) in the constitutional grounds upon which they rest.... In addition, they violations alleged; (4) Plaintiff's Complaint fails to state a state claims upon which relief could be granted procedural due process claim under the Fourteenth under Title VII and the ADEA."); Wynder v. Amendment because a violation of DOCS Directive 4933 McMahon, 360 F.3d 73, 80 (2d Cir.2004) does not constitute a violation of the Fourteenth ("There is a critical distinction between the Amendment; (5) Plaintiff lacks standing to assert any notice requirements of Rule 8(a) and the claims on behalf of other inmates; (6) the Eleventh requirement, under Rule 12(b)(6), that a plaintiff Amendment bars Plaintiff's claims against Defendants in state a claim upon which relief can be granted."); their official capacities; and (7) based on Plaintiff's factual Phelps v. Kapnolas, 308 F.3d 180, 187 (2d allegations, Defendants are protected from liability as a Cir.2002) ("Of course, none of this is to say that matter of law by the doctrine of qualified immunity. (Dkt. a court should hesitate to dismiss a complaint No. 12, Part 2, 1-9 [Defs.' Memo. of Law].) when the plaintiff's allegation ... fails as a matter

II. LEGAL STANDARD GOVERNING M OTIONS of law.") [citation omitted]; Kittay v. Kornstein, TO DISM ISS FOR FAILURE TO STATE A CLAIM 230 F.3d 531, 541 (2d Cir.2000) (distinguishing Narcotics Intelligence and Coordination Unit, between a failure to meet Rule 12[b][6]'s 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d requirement of stating a cognizable claim and 517 (1993) [citation omitted].

Rule 8[a]'s requirement of disclosing sufficient information to put defendant on fair notice); In re FN15. Swierkiewicz, 534 U.S. at 514 (quoting Methyl Tertiary Butyl Ether Prods. Liab. Litig., Conley, 355 U.S. at 48); see also Simmons v. 379 F.Supp.2d 348, 370 (S.D.N.Y.2005) ( Abruzzo, 49 F.3d 83, 86 (2d Cir.1995) ("Fair "Although Rule 8 does not require plaintiffs to notice is that which will enable the adverse party plead a theory of causation, it does not protect a to answer and prepare for trial, allow the legally insufficient claim [under Rule 12(b)(6) application of res judicata, and identify the ].") [citation omitted]; Util. Metal Research & nature of the case so it may be assigned the Generac Power Sys., 02-CV-6205, 2004 U.S. proper form of trial.") [citation omitted]; Dist. LEXIS 23314, at *4-5 (E.D.N.Y. Nov. 18, Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d 2004) (distinguishing between the legal Cir.1988) ("[T]he principle function of pleadings sufficiency of the cause of action under Rule under the Federal Rules is to give the adverse 12[b][6] and the sufficiency of the complaint party fair notice of the claim asserted so as to under Rule 8[a] ); accord, Straker v. Metro enable him to answer and prepare for trial.") Trans. Auth., 331 F.Supp.2d 91, 101-102 [citations omitted]. (E.D.N.Y.2004); Tangorre v. Mako's, Inc., 01-CV-4430, 2002 U.S. Dist. LEXIS 1658, at FN16. Gonzales v. Wing, 167 F.R.D. 352, 355 *6-7 (S.D.N.Y. Jan. 30, 2002) (identifying two (N.D.N.Y.1996) (McAvoy, J.), aff'd, 113 F.3d sorts of arguments made on a Rule 12[b][6] 1229 (2d Cir.1997) (unpublished table opinion); motion-one aimed at the sufficiency of the accord, Hudson v. Artuz, 95-CV-4768, 1998 WL pleadings under Rule 8[a], and the other aimed at 832708, at *2 (S.D.N.Y. Nov.30, 1998), Flores the legal sufficiency of the claims). v. Bessereau, 98-CV-0293, 1998 WL 315087, at

*1 (N.D.N.Y. June 8, 1998) (Pooler, J.).

Rule 8(a)(2) requires that a pleading contain "a short Consistent with the Second Circuit's application and plain statement of the claim showing that the pleader of § 0.23 of the Rules of the U.S. Court of is entitled to relief." Fed.R.Civ.P. 8(a)(2) [emphasis Appeals for the Second Circuit, I cite this added]. By requiring this "showing," Fed.R.Civ.P. 8(a)(2) unpublished table opinion, not as precedential requires that the pleading contain a short and plain authority, but merely to show the case's statement that "give[s] the defendant fair notice of what subsequent history. See, e.g., Photopaint the plaintiff's claim is and the grounds upon which it Technol., LLC v. Smartlens Corp., 335 F.3d 152, rests." FN14 The main purpose of this rule is to "facilitate a 156 (2d Cir.2003) (citing, for similar purpose, proper decision on the merits." FN15 A complaint that fails unpublished table opinion of Gronager v. to comply with this rule "presents far too heavy a burden Gilmore Sec. & Co., 104 F.3d 355 [2d Cir.1996] in terms of defendants' duty to shape a comprehensive ). defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiff's] claims." FN16 The Supreme Court has long characterized this pleading requirement under Fed.R.Civ.P. 8(a)(2) as FN14. Dura Pharm., Inc. v. Broudo, 544 U.S. "simplified" and "liberal," and has repeatedly rejected 336, 125 S.Ct. 1627, 1634, 161 L.Ed.2d 577 judicially established pleading requirements that exceed (2005) (holding that the complaint failed to meet this liberal requirement.FN17 However, it is well established this test) [citation omitted; emphasis added]; see that even this liberal notice pleading standard "has its also Swierkiewicz, 534 U.S. at 512 [citation limits." FN18 As a result, several Supreme Court and omitted]; Leathernman v. Tarrant County Second Circuit decisions exist, holding that a pleading has failed to meet this liberal notice pleading standard.FN19 an actionable antitrust claim under 15 U.S.C. § 1,

"retire[d]" the famous statement by the Court in Conley v. FN17. See, e.g., Swierkiewicz, 534 U.S. at Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 513-514 (noting that "Rule 8(a)(2)'s simplified (1957), that "a complaint should not be dismissed for pleading standard applies to all civil actions, with failure to state a claim unless it appears beyond doubt that limited exceptions [including] averments of fraud the plaintiff can prove no set of facts in support of his or mistake."). claim which would entitle him to relief." 550 U.S. 544, ---- - ----, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 FN18. 2 Moore's Federal Practice § 12.34[1][b] (2007).FN20 Rather than turning on the conceivability of an at 12-61 (3d ed.2003). actionable claim, the Court clarified, the Fed.R.Civ.P. 8 "fair notice" standard turns on the plausibility of an

FN19. See, e.g., Bell Atlantic Corp. v. Twombly, actionable claim. Id. at 1965-74. 550 U.S. 544, ---- - ----, 127 S.Ct. 1955, 1964-1974, 167 L.Ed.2d 929 (2007) (pleading FN20. The Court in Twombly further explained: did not meet Rule 8[a][2]'s liberal requirement); "The phrase is best forgotten as an incomplete, accord, Dura Pharm., 125 S.Ct. at 1634-1635, negative gloss on an accepted pleading standard: Christopher v. Harbury, 536 U.S. 403, 416-422, once a claim has been adequately stated, it may 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), be supported by showing any set of facts Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, consistent with the allegations in the complaint.... 234-235 (2d Cir.2004), Gmurzynska v. Hutton, Conley, then, described the breadth of 355 F.3d 206, 208-209 (2d Cir.2004). Several opportunity to prove what an adequate complaint unpublished decisions exist from the Second claims, not the minimum standard of adequate Circuit affirming the Rule 8(a)(2) dismissal of a pleading to govern a complaint's survival." complaint after Swierkiewicz. See, e.g., Salvador Twombly, 127 S.Ct. at 1969. v. Adirondack Park Agency of the State of N.Y.,

No. 01-7539, 2002 W L 741835, at *5 (2d Cir. More specifically, the Court reasoned that, by Apr.26, 2002) (affirming pre-Swierkiewicz requiring that a pleading "show [ ] that the pleader is decision from Northern District of New York entitled to relief," Fed.R.Civ.P. 8(a)(2) requires that the interpreting Rule 8[a][2] ). Although these pleading give the defendant "fair notice" of (1) the nature decisions are not themselves precedential of the claim and (2) the "grounds" on which the claim authority, see Rules of the U.S. Court of Appeals rests. Id. at 1965, n. 3 [citation omitted]. While this does for the Second Circuit, § 0.23, they appear to not mean that a pleading need "set out in detail the facts acknowledge the continued precedential effect, upon which [the claim is based]," it does mean that the after Swierkiewicz, of certain cases from within pleading must contain at least "some factual allegation[s]." the Second Circuit interpreting Rule 8(a)(2). See Id. [citations omitted]. More specifically, the "[f]actual Khan v. Ashcroft, 352 F.3d 521, 525 (2d allegations must be enough to raise a right to relief above Cir.2003) (relying on summary affirmances the speculative level [to a plausible level]," assuming (of because "they clearly acknowledge the continued course) that all the allegations in the complaint are true. precedential effect" of Domond v. INS, 244 F.3d Id. at 1965 [citations omitted]. What this means, on a 81 [2d Cir.2001], after that case was "implicitly practical level, is that there must be "plausible grounds to overruled by the Supreme Court" in INS v. St. infer [actionable conduct]," or, in other words, "enough Cyr, 533 U.S. 289 [2001] ). fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct]." Id.

Most notably, in the recent decision of Bell Atlantic Corporation v. Twombly, the Supreme Court, in reversing *4 As have other Circuits, the Second Circuit has an appellate decision holding that a complaint had stated repeatedly recognized that the clarified plausibility standard that was articulated by the Supreme Court in give lenders fair notice of her discrimination Twombly governs all claims, not merely antitrust claims claim based on lenders' denial of her home equity brought under 15 U.S.C. § 1 (as were the claims in loan application) [emphasis added].

Twombly ).FN21 The Second Circuit has also recognized that this plausibility standard governs claims brought even It should be emphasized that Fed.R.Civ.P. 8's by pro se litigants (although the plausibility of those plausibly standard, explained in Twombly, was in no way claims is be assessed generously, in light of the special retracted or diminished by the Supreme Court's decision solicitude normally afforded pro se litigants).FN22 (two weeks later) in Erickson v. Pardus, in which the Court stated, "Specific facts are not necessary" to FN21. See, e.g., Ruotolo v. City of New York, successfully state a claim under Fed.R.Civ.P. 8(a)(2). 514 F.3d 184, 188 (2d Cir.2008) (in civil rights Erickson v. Pardus, 551 U.S. 89, ----, 127 S.Ct. 2197, action, stating that "To survive a motion to 2200, 167 L.Ed.2d 1081 (2007) [citation omitted]. That dismiss, a complaint must plead 'enough facts to statement was merely an abbreviation of the state a claim up relief that is plausible on its often-repeated point of law-first offered in Conley and face.' ") [citation omitted]; Goldstein v. Pataki, repeated in Twombly-that a pleading need not "set out in 07-CV-2537, 2008 U.S.App. LEXIS 2241, at detail the facts upon which [the claim is based]" in order *14 (2d Cir. Feb. 1, 2008) (in civil rights action, to successfully state a claim. Twombly, 127 S.Ct. 1965, n. stating that "Twombly requires ... that the 3 (citing Conley v. Gibson, 355 U.S. 41, 47 [1957] ). That complaint's '[f]actual allegations be enough to statement in no way meant that all pleadings may achieve raise a right to relief above the speculative level the requirement of giving a defendant "fair notice" of the ....' ") [internal citation omitted]; ATSI nature of the claim and the "grounds" on which the claim Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d rests without ever having to allege any facts 87, 98, n. 2 (2d Cir.2007) ( "We have declined to whatsoever.FN23 There must still be enough facts alleged to read Twombly's flexible 'plausibility standard' as raise a right to relief above the speculative level to a relating only to antitrust cases.") [citation plausible level, so that the defendant may know what the omitted]; Iqbal v. Hasty, 490 F.3d 143, 157-58 claims are and the grounds on which they rest (in order to (2d Cir.2007) (in prisoner civil rights action, shape a defense). stating, "[W]e believe the [Supreme] Court [in Bell Atlantic Corp. v. Twombly ] is ... requiring FN23. For example, in Erickson, a district court a flexible 'plausibility standard,' which obliges a had dismissed a pro se prisoner's civil rights pleader to amplify a claim with some factual complaint because, although the complaint was allegations in those contexts where such otherwise factually specific as to how the amplification is needed to render the claim prisoner's hepatis C medication had been plausible." ) [emphasis in original]. wrongfully terminated by prison officials for a period of approximately 18 months, the FN22. See, e.g., Jacobs v. Mostow, 281 F. App'x complaint (according to the district court) failed 85, 87 (2d Cir. March 27, 2008) (in pro se to allege facts plausibly suggesting that the action, stating, "To survive a motion to dismiss, termination caused the prisoner "substantial a complaint must plead 'enough facts to state a harm." 127 S.Ct. at 2199. The Supreme Court claim up relief that is plausible on its face.' ") vacated and remanded the case because (1) under [citation omitted] (summary order, cited in Fed.R.Civ.P. 8 and Twombly, all that is required accordance with Local Rule 32.1[c][1] ); Boykin is a "a short and plain statement of the claim" v. KeyCorp., 521 F.3d 202, 215-16 (2d Cir.2008) sufficient to "give the defendant fair notice" of (finding that borrower's pro se complaint the claim and "the grounds upon which it rests," sufficiently presented a "plausible claim of and (2) the plaintiff had alleged that the disparate treatment," under Fair Housing Act, to termination of his hepatitis C medication for 18 months was "endangering [his] life" and that he standard is applied with even greater force where the was "still in need of treatment for [the] disease." plaintiff alleges civil rights violations or where the Id. at 2200. While Erickson does not elaborate complaint is submitted pro se."FN25 In other words, as

much further on its rationale, a careful reading of stated above in Part I.A. of this Report-Recommendation, the decision (and the dissent by Justice Thomas) while all pleadings are to be construed liberally under reveals a point that is perhaps so obvious that it Fed.R.Civ.P. 8(e), pro se civil rights pleadings are to be did not need mentioning in the short decision: a construed with an extra degree of liberality.FN26

claim of deliberate indifference to a serious medical need under the Eighth Amendment FN24. Hernandez v. Coughlin, 18 F.3d 133, 136 involves two elements, i.e., the existence of a (2d Cir.1994) (affirming grant of motion to sufficiently serious medical need possessed by dismiss) [citation omitted]; Sheppard v. the plaintiff, and the existence of a deliberately Beerman, 18 F.3d 147, 150 (2d Cir.1994). indifferent mental state possessed by prison officials with regard to that sufficiently serious FN25. Hernandez, 18 F.3d at 136 [citation medical need. The Erickson decision had to do omitted]; Deravin v. Kerik, 335 F.3d 195, 200 with only the first element, not the second (2d Cir.2003) [citations omitted]; Vital v. element. Id. at 2199-2200. In particular, the Interfaith Med. Ctr., 168 F.3d 615, 619 (2d decision was merely recognizing that an Cir.1999) [citation omitted]. allegation by a plaintiff that, during the relevant time period, he suffered from hepatis C is, in and F N 2 6 . S e e, su p ra , no te 1 o f th is of itself, a factual allegation plausibly suggesting Report-Recommendation. that he possessed a sufficiently serious medical need; the plaintiff need not also allege that he For example, the mandate to read the papers of pro se suffered an independent and "substantial injury" litigants generously makes it appropriate to consider a as a result of the termination of his hepatis C plaintiff's papers in opposition to a defendant's motion to medication. Id. This point of law is hardly a dismiss as effectively amending the allegations of the novel one. For example, numerous decisions, plaintiff's complaint, to the extent that those factual from district courts within the Second Circuit assertions are consistent with the allegations of the alone, have found that suffering from hepatitis C plaintiff's complaint.FN27 Moreover, "courts must construe constitutes having a serious medical need for pro se pleadings broadly, and interpret them to raise the purposes of the Eighth Amendment. See, e.g., strongest arguments that they suggest." FN28 Furthermore, Rose v. Alvees, 01-CV-0648, 2004 WL 2026481, when addressing a pro se complaint, generally a district at *6 (W.D.N.Y. Sept.9, 2004); Verley v. Goord, court "should not dismiss without granting leave to amend 02-CV-1182, 2004 WL 526740, at *10 n. 11 at least once when a liberal reading of the complaint gives (S.D.N.Y. Jan.23, 2004); Johnson v. Wright, 234 any indication that a valid claim might be stated." FN29 Of F.Supp.2d 352, 360 (S.D.N.Y.2002); McKenna course, an opportunity to amend is not required where "the v. Wright, 01-CV-6571, 2002 WL 338375, at *6 problem with [plaintiff's] causes of action is substantive" (S.D.N.Y. March 4, 2002); Carbonell v. Goord, such that "[b]etter pleading will not cure it." FN30 99-CV-3208, 2000 WL 760751, at *9 (S.D.N.Y. June 13, 2000). FN27. "Generally, a court may not look outside the pleadings when reviewing a Rule 12(b)(6) Having said all of that, it should also be emphasized motion to dismiss. However, the mandate to read that, "[i]n reviewing a complaint for dismissal under the papers of pro se litigants generously makes it Fed.R.Civ.P. 12(b)(6), the court must accept the material appropriate to consider plaintiff's additional facts alleged in the complaint as true and construe all materials, such as his opposition memorandum." reasonable inferences in the plaintiff's favor." FN24 "This Gadson v. Goord, 96-CV-7544, 1997 WL 714878, at *1, n. 2 (S.D.N.Y. Nov.17, 1997) *5 However, while this special leniency may (citing, inter alia, Gil v. Mooney, 824 F.2d 192, somewhat loosen the procedural rules governing the form 195 [2d Cir.1987] [considering plaintiff's of pleadings (as the Second Circuit very recently response affidavit on motion to dismiss] ). Stated observed),FN31 it does not completely relieve a pro se another way, "in cases where a pro se plaintiff is plaintiff of the duty to satisfy the pleading standards set faced with a motion to dismiss, it is appropriate forth in Fed.R.Civ.P. 8, 10 and 12.FN32 Rather, as both the for the court to consider materials outside the Supreme Court and Second Circuit have repeatedly complaint to the extent they 'are consistent with recognized, the requirements set forth in Fed.R.Civ.P. 8, the allegations in the complaint.' " Donhauser v. 10 and 12 are procedural rules that even pro se civil rights Goord, 314 F.Supp.2d 119, 212 (N.D.N.Y.2004) plaintiffs must follow.FN33 Stated more plainly, when a (considering factual allegations contained in plaintiff is proceeding pro se, "all normal rules of pleading plaintiff's opposition papers) [citations omitted], are not absolutely suspended." FN34 vacated in part on other grounds, 317 F.Supp.2d 160 (N.D.N.Y.2004). This authority is premised, FN31. Sealed Plaintiff v. Sealed Defendant # 1, not only on case law, but on Rule 15 of the No. 06-1590, 2008 WL 3294864, at *5 (2d Cir. Federal Rules of Civil Procedure, which permits Aug.12, 2008) ("[The obligation to construe the a plaintiff, as a matter of right, to amend his pleadings of pro se litigants liberally] entails, at complaint once at any time before the service of the very least, a permissive application of the a responsive pleading-which a motion to dismiss rules governing the form of pleadings.") [internal is not. See Washington v. James, 782 F.2d 1134, quotation marks and citation omitted]; see also 1138-39 (2d Cir.1986) (considering subsequent Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) affidavit as amending pro se complaint, on ("[R]easonable allowances to protect pro se motion to dismiss) [citations omitted]. litigants from inadvertent forfeiture of important rights because of their lack of legal training ... FN28. Cruz v. Gomez, 202 F.3d 593, 597 (2d should not be impaired by harsh application of Cir.2000) (finding that plaintiff's conclusory technical rules.") [citation omitted]. allegations of a due process violation were insufficient) [internal quotation and citation FN32. See Prezzi v. Schelter, 469 F.2d 691, 692 omitted]. (2d Cir.1972) (extra liberal pleading standard set forth in Haines v. Kerner, 404 U.S. 519 [1972], FN29. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d did not save pro se complaint from dismissal for Cir.2000) [internal quotation and citation failing to comply with Fed.R.Civ.P. 8] ); accord, omitted]; see also Fed.R.Civ.P. 15(a) (leave to Shoemaker v. State of Cal., 101 F.3d 108 (2d amend "shall be freely given when justice so Cir.1996) (citing Prezzi v. Schelter, 469 F.2d requires"). 691) [unpublished disposition cited only to acknowledge the continued precedential effect of FN30. Cuoco, 222 F.3d at 112 (finding that Prezzi v. Schelter, 469 F.2d 691, within the repleading would be futile) [citation omitted]; Second Circuit]; accord, Praseuth v. Werbe, 99 see also Cortec Indus., Inc. v. Sum Holding L.P., F.3d 402 (2d Cir.1995). 949 F.2d 42, 48 (2d Cir.1991) ("Of course, where a plaintiff is unable to allege any fact FN33. See McNeil v. U.S., 508 U.S. 106, 113, sufficient to support its claim, a complaint should 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("While be dismissed with prejudice.") (affirming, in part, we have insisted that the pleadings prepared by dismissal of claim with prejudice) [citation prisoners who do not have access to counsel be omitted]. liberally construed ... we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by 37404, at *4 (N.D.N.Y. Jan.4, 2007) (Kahn, J., those who proceed without counsel."); Faretta v. adopting report-recommendation of Lowe, M.J.). California, 422 U.S. 806, 834, n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The right of III. ANALYSIS self-representation is not a license ... not to comply with relevant rules of procedural and A. First Basis for Dismissal: Facial M erit of substantive law."); Triestman v. Fed. Bureau of Defendants' Unopposed M otion Prisons, 470 F.3d 471, 477 (2d Cir.2006) (pro se status "does not exempt a party from compliance "Where a properly filed motion is unopposed and the with relevant rules of procedural and substantive Court determines that the moving party has met its burden law") [citation omitted]; Traguth v. Zuck, 710 to demonstrate entitlement to the relief requested therein, F.2d 90, 95 (2d Cir.1983) (pro se status "does the non-moving party's failure to file or serve any papers not exempt a party from compliance with as required by this Rule shall be deemed as consent to the relevant rules of procedural and substantive granting or denial of the motion, as the case may be, law") [citation omitted]; cf. Phillips v. Girdich, unless good cause be shown." N.D.N.Y. L.R. 7.1(b)(3). 408 F.3d 124, 128, 130 (2d Cir.2005) (acknowledging that pro se plaintiff's complaint Here, Defendants' motion to dismiss is properly filed, could be dismissed for failing to comply with Plaintiff has failed to oppose it (despite being warned of Rules 8 and 10 if his mistakes either "undermine the possible consequences of that failure), FN35 and the purpose of notice pleading [ ]or prejudice the Plaintiff has failed to show good cause why his failure to adverse party"). oppose Defendants' motion should not be deemed as consent to the granting of the motion. Therefore, I must FN34. Stinson v. Sheriff's Dep't of Sullivan Cty., determine whether Defendants have met their burden to 499 F.Supp. 259, 262 & n. 9 (S.D.N.Y.1980); "demonstrate entitlement to dismissal" under Rule accord, Standley v. Dennison, 05-CV-1033, 12(b)(6). FN36 2007 WL 2406909, at *6, n. 27 (N.D.N.Y. A ug.2 1 , 20 0 7) (S h arpe, J., ad o p ting FN35. (Dkt. No. 12, Part 1 [Defs.' Notice of report-recommendation of Lowe, M.J.); Muniz v. Motion].)

Goord, 04-CV-0479, 2007 WL 2027912, at *2 (N.D.Y.Y. July 11, 2007) (McAvoy, J., adopting FN36. See also Fed.R.Civ.P. 7(b)(1) (requiring report-recommendation of Lowe, M .J.); motions to, inter alia, "state with particularity the DiProjetto v. Morris Protective Serv., 489 grounds therefor"). F.Supp.2d 305, 307 (W.D.N.Y.2007); Cosby v. City of White Plains, 04-CV-5829, 2007 WL An inquiry into whether a movant has met its "burden 853203, at *3 (S.D.N.Y. Feb.9, 2007); Lopez v. to demonstrate entitlement" to dismissal under Local Rule Wright, 05-CV-1568, 2007 WL 388919, at *3, n. 7.1(b)(3) is a more limited endeavor than a review of a 11 (N.D.N.Y. Jan.31, 2007) (Mordue, C.J., contested motion to dismiss. Specifically, under such an adopting report-recommendation of Lowe, M.J.); analysis, the movant's burden has appropriately been Richards v. Goord, 04-CV-1433, 2007 WL characterized as "modest." FN37 This is because, as a 201109, at *5 (N.D.N.Y. Jan.23, 2007) (Kahn, practical matter, the burden requires only that the movant J., adopting report-recommendation of Lowe, present an argument that is "facially meritorious." FN38 M.J.); Ariola v. Onondaga County Sheriff's Dept., 04-CV-1262, 2007 WL 119453, at *2, n. FN37. See, e.g., Ciaprazi v. Goord, 02-CV-0915, 13 (N.D.N.Y. Jan.10, 2007) (Hurd, J., adopting 2005 WL 3531464, at *8 (N.D.N.Y. Dec.22, report-recommendation of Lowe, M.J.); Collins 2005) (Sharpe, J.; Peebles, M.J.) (characterizing v. Fed. Bur. of Prisons, 05-CV-0904, 2007 WL defendants' threshold burden on a motion for summary judgment as "modest") [citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 March 28, 2007) (McAvoy, J.); Kele v. Pelkey, S.Ct. 2548, 91 L.Ed.2d 265 (1986) ]; accord, 03-CV-0170, 2006 U.S. Dist. LEXIS 95065, at Saunders v. Ricks, 03-CV-0598, 2006 WL *5 & n. 2 (N.D.N.Y. Dec. 19, 2006) (Lowe, 3051792, at *9 & n. 60 (N.D.N.Y. Oct.18, 2006) M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (Hurd, J., adopting Report-Recommendation of (N.D.N.Y. Jan. 22, 2007) (Kahn, J.).

Lowe, M.J.), Smith v. Woods, 03-CV-0480, 2006 WL 1133247, at *17 & n. 109 (N.D.N.Y. Here, I find that Defendants have met their lightened A p r . 2 4 , 2 0 0 6 ) ( H u r d , J . , a d o p t i n g burden on their unopposed motion given Defendants' Report-Recommendation of Lowe, M.J.); see cogent, and legally supported, legal arguments set forth in also Race Safe Sys. v. Indy Racing League, 251 their memoranda of law. (Dkt. No. 12, Part 2, 1-9 [Defs.' F.Supp.2d 1106, 1109-1110 (N.D.N.Y.2003) Memo. of Law].) I note that this Court has, on numerous (Munson, J.) (reviewing merely whether record occasions, granted motions to dismiss based on a similar contradicted defendant's arguments, and whether facial analysis of a defendant's legal arguments (and a record supported plaintiff's claims, in deciding plaintiff's claims).FN39 unopposed motion to dismiss, under Local Rule 7.1[b][3] ); Wilmer v. Torian, 96-CV-1269, 1997 FN39. See, e.g., Wilmer v. Torian, 96-CV-1269, U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. 29, 1997) (Hurd, M.J.) (applying prior version of Aug. 29, 1997) (Hurd, M.J.) (applying prior Rule 7.1[b][3], but recommending dismissal version of Local Rule 7.1[b][3], but because of plaintiff's failure to respond to motion recommending dismissal because of plaintiff's to dismiss and the reasons set forth in defendants' failure to respond to motion to dismiss and the motion papers), adopted by 1997 U.S. Dist. reasons set forth in defendants' motion papers), LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) adopted by 96-CV-1269, 1997 U.S. Dist. LEXIS (Pooler, J.); accord, Carter v. Superintendent 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, Montello, 95-CV-989, 1996 U.S. Dist. LEXIS J.); accord, Carter v. Superintendent Montello, 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, 95-CV-0989, 1996 U.S. Dist. LEXIS 15072, at M .J.), adopted b y 9 8 3 F.Supp. 595 *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), (N.D.N.Y.1996) (Pooler, J.). adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.); Munoz v. Coombe, 95-CV-1191, FN38. See, e.g., Hernandez v. Nash, 1996 U.S. Dist. LEXIS 15107, at *3 (N.D.N.Y. 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at Aug. 21, 1996) (Hurd, M.J.), adopted by *7-8 (N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) 95-CV-1191, 1996 U.S. Dist. LEXIS 15108, at (before a motion to dismiss may be granted *2 (N.D.N.Y. Oct. 11, 1996) (Pooler, J.) under Local Rule 7.1[b] [3], "the court must (rejecting plaintiff's objections, explaining that review the motion to determine whether it is "Local Rule 7.1(b) permits the court to grant an facially meritorious" ) [emphasis added; unopposed motion"); O wens v. Long, citations omitted]; accord, Topliff v. Wal-Mart 95-CV-0604, 1996 U.S. Dist. LEXIS 6520, at *2 Stores East LP, 04-CV-0297, 2007 U.S. Dist. (N.D.N.Y. March 11, 1996) (Hurd, M.J.), LEXIS 20533, at *28 & n. 43 (N.D.N.Y. March adopted by 95-CV-0604, 1996 U.S. Dist. LEXIS 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 4807 (N.D.N.Y. Apr. 10, 1996) (Pooler, J.). 05-CV-0380, 2007 U.S. Dist. LEXIS 24356, at *5-6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, Even if I were to subject Defendants' legal arguments M.J.); Sledge v. Kooi, 04-CV-1311, 2007 U.S. to the detailed scrutiny that would be appropriate on a Dist. LEXIS 26583, at *28-29 & n. 40 conteste d motion to dismiss, I would be persuaded by (N.D.N.Y. Feb. 12, 2007) (Lowe, M.J.), adopted those legal arguments. For the sake of brevity, I will not by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. repeat in detail all of Defendants arguments but only make two points. while in Disciplinary Segregation Unit did not demonstrate a serious deprivation under the First, I agree with Defendants that, even when Eighth Amendment); Green v. Ferrell, 801 F.2d construed with the utmost of special leniency, Plaintiff's 765, 771-72 (5th Cir.1986) (holding that Eighth Complaint and its attachments fail to allege facts plausibly Amendment was not violated by policy denying suggesting a deprivation that was sufficiently serious to inmates out-of-cell exercise for first 15 days of constitute a violation of the Eighth Amendment. punitive confinement).

Generally, to prevail on a claim of inadequate prison conditions, a plaintiff must show two things: (1) that the *6 Second, I agree with Defendants that, even when conditions of his confinement resulted in deprivation that construed with the utmost of special leniency, Plaintiff's was sufficiently serious; and (2) that the defendant acted Complaint fails to state a due process claim under the with deliberate indifference to the plaintiff's health or Fourteenth Amendment because a violation of DOCS safety. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. Directive 4933 does not constitute a violation of the 1970, 128 L.Ed.2d 811 (1994); Davidson v. Murray, 371 Fourteenth Amendment. Section 1983 provides, in F.Supp.2d 361, 370 (W.D.N.Y.2005). The denial of one pertinent part, "Every person who ... subjects, or causes to hour of outdoor exercise (and radios and "supplies") on be subjected, any citizen of the United States or other four days during a seventy-one (71) day period of time is person within the jurisdiction thereof to the deprivation of not a deprivation that is sufficiently serious for purposes any rights, privileges, or immunities secured by the of the Eighth Amendment.FN40 Constitution and laws, shall be liable to the party injured ...." 42 U.S.C. § 1983 [emphasis added]. The term "the FN40. Arce v. Walker, 907 F.Supp. 658, 662-63 Constitution and laws" refers to the United States (W.D.N.Y.1995) (holding, inter alia, that Constitution and federal laws.FN41 A violation of a state denying inmate one hour of daily exercise law or regulation, in and of itself, does not give rise to outside his cell, as required by state regulation, liability under 42 U.S.C. § 1983.FN42 Furthermore, the for 18 out of 19 days did not violate inmate's violation of a DOCS Directive, alone, is not even a Eighth Amendment rights, as a matter of law), violation of New York State law or regulation.FN43 This is affirmed in pertinent part, 139 F.3d 329, 337-38 because a DOCS Directive is "merely a system the (2d Cir.1998); Ochoa v. Connell, 05-CV-1068, [DOCS] Commissioner has established to assist him in 2007 WL 3049889, at *12 (N.D.N.Y. Oct.18, exercising his discretion," which he retains, despite any 2007) (Sharpe, J.) (holding that denial of violation of that Directive. FN44 exercise on 11 out of 33 days did not violate

Eighth Amendment) [citations omitted]; Ford v. FN41. See Adickes v. S.H. Kress & Co., 398 U.S. Phillips, 05-CV-6646, 2007 W L 946703, at *9 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (S.D.N.Y. March 27, 2007) (holding that denial ("The terms of § 1983 make plain two elements of exercise on 5 days did not violate Eighth that are necessary for recovery. First, the plaintiff Amendment); Gibson v. City of New York, must prove that the defendant has deprived him 96-CV-3409, 1998 WL 146688, at *3 (S.D.N.Y. of a right secured by the 'Constitution and laws' Mar.25, 1998) (holding that denying inmate of the United States." ) (emphasis added); exercise for 8 days in a 60 day period did not Patterson v. Coughlin, 761 F.2d 886, 890 (2d violate Eighth Amendment) [citations omitted]; Cir.1985) ("Recovery under 42 U.S.C. § 1983 ... Davidson v. Coughlin, 968 F.Supp. 121, 131 is premised upon a showing, first, that the (S.D.N.Y.1997) (holding that denying inmate defendant has denied the plaintiff a constitutional exercise for 14 days did not violate Eighth or federal statutory right ....") (citation omitted; Amendment) [citations omitted]; see also May v. emphasis added); Fluent v. Salamanca Indian Baldwin, 109 F.3d 557, 565 (9th Cir.1997) Lease Auth., 847 F.Supp. 1046, 1056 (deprivation of outdoor exercise for 21 days (W.D.N.Y.1994) ("The initial inquiry in a § 1983 action is whether the Plaintiff has been granted.FN45 deprived of a right 'secured by the Constitution and laws' of the United States." ) [emphasis FN45. The authority to conduct this sua sponte added]. analysis is derived from two sources: (1) 28 U.S.C. § 1915(e)(2)(B)(ii), which provides that FN42. See Doe v. Conn. Dept. of Child & Youth "the court shall dismiss [a] case [brought by a Servs., 911 F.2d 868, 869 (2d Cir.1990) ("[A] prisoner proceeding in forma pauperis ] at any violation of state law neither gives [plaintiff] a § time if the court determines that ... the action ... 1983 claim nor deprives defendants of the is frivolous or malicious[,] ... fails to state a defense of qualified immunity to a proper § 1983 claim on which relief may be granted[,] ... or ... claim."); Patterson, 761 F.2d at 891 ("[A] state seeks monetary relief against a defendant who is employee's failure to conform to state law does immune from such relief"; and (2) 28 U.S.C. § not in itself violate the Constitution and is not 1915A(b), which provides that, "[o]n review, the alone actionable under § 1983 ....") (citation court shall ... dismiss the [prisoner's] complaint, omitted); Murray v. Michael, 03-CV-1434, 2005 or any portion of the complaint, if the complaint WL 2204985, at *10 (N.D.N.Y. Sept.7, 2005) ... is frivolous, malicious, or fails to state a claim (DiBianco, M.J.) ("[A]ny violations of state upon which relief may be granted ...." regulations governing the procedures for disciplinary hearings ... do not rise to the level of With regard to Plaintiff's Fourteenth equal protection constitutional violations.") (citation omitted); claim (i.e., his claim that Defendants Souza and Zurawski Rivera v. Wohlrab, 232 F.Supp.2d 117, 123 discriminated against inmates based on their Hispanic (S.D.N.Y.2002) ( "[V]iolations of state law national origin), to prove a violation of the Equal procedural requirements do not alone constitute Protection Clause, a plaintiff must demonstrate that he was a deprivation of due process since '[f]ederal intentionally treated differently from others similarly constitutional standards rather than state law situated as a result of intentional or purposeful define the requirements of procedural due discrimination directed at an identifiable or suspect process.' ") (citing Russell v. Coughlin, 910 F.2d class.FN46 Here, Plaintiff has not alleged facts plausibly 75, 78 n. 1 [2d Cir.1990] ). suggesting that the deprivations that allegedly occurred on May 5, May 23, July 9, and July 15, 2007, were caused by FN43. See Rivera v. Wohlrab, 232 F.Supp.2d some sort of racial animus on the part of Defendants. See, 117, 123 (S.D.N.Y.2002) (citation omitted); supra, Part I.A. of this Report-Recommendation.FN47

Lopez v. Reynolds, 998 F.Supp. 252, 259 Rather, the only allegations of racial animus that Plaintiff (W.D.N.Y.1997). offers are vague as to how, when and by whom the discrimination was committed. Id. More importantly, FN44. See Farinaro v. Coughlin, 642 F.Supp. Plaintiff's allegations are devoid of any indication as to 276, 280 (S.D.N.Y.1986). why he believed the offending officers were acting with racial animus, rendering his allegation of discrimination Finally, a few words are necessary about Plaintiff's wholly conclusory. Id. Similarly, Plaintiff's allegation that Fourteenth Amendment equal protection claim and his Defendant Souza threatened to file a false misbehavior First Amendment retaliation claim. Even though report against him and his cellmate (who spoke only Defendants do not specifically address these claims in Spanish) fails to allege any facts plausibly suggesting that their motion, the Court is not precluded from analyzing Defendant Souza made that threat because of racial these claims because, in a pro se prisoner civil rights case, animus (or even that he carried out the threat). Id. a district court may (and, indeed, has a duty to) sua sponte address whether the pleading in such a case has FN46. Travis v. N.Y. State Div. of Parole, successfully stated a claim upon which relief may be 96-CV-0759, 1998 U.S. Dist. LEXIS 23417, at *11 (N.D.N.Y. Aug. 26, 1998) (Sharpe, M.J.), FN48. Mount Healthy City Sch. Dist. Bd. of adopted, 96-CV-0759, Decision and Order Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, (N.D.N.Y. filed Nov. 2, 1998) (McAvoy, C.J.). 50 L.Ed.2d 471 (1977); Gill, 389 F.3d at 380 (citing Dawes v. Walker, 239 F.3d 489, 492 [2d. FN47. Indeed, to the contrary, he has alleged the Cir.2001] ). deprivation that occurred on July 7, 2007, occurred because he had filed a grievance against FN49. (Dkt. No. 1, at 30-31 [Ex. B to Plf.'s Defendant Souza. See, supra, Part I.A. of this Compl., attaching letters of complaint from Report-Recommendation. Plaintiff dated July 9 and 15, 2007].)

*7 With regard to Plaintiff's First Amendment FN50. Lunney v. Brureton, 04-CV-2438, 2007 retaliation claim (i.e., his claim against Defendant U.S. Dist. LEXIS 38660, at *65-66 (S.D.N.Y. Zurawaski for depriving him of the one hour of outdoor May 25, 2007) ("Case law suggests that the exercise that he was permitted on July 9, 2007, by DOCS isolated or sporadic denial of privileges [such as Directive 4933, in retaliation against him for having filed recreation] do not suffice to state a claim of a grievance against Defendant Zurawaski), to prevail on a actionable retaliation.") [citations omitted]; cf. First Amendment claim under 42 U.S.C. § 1983, a Snyder v. McGinnis, 03-CV-0902, 2004 WL plaintiff must prove by the preponderance of the evidence 1949472, at *11 (W.D.N.Y. Sept.2, 2004) that: (1) the speech or conduct at issue was "protected"; (deprivation of one meal on two occasions was (2) the defendants took "adverse action" against the de minimis, and did not state a claim for plaintiff-namely, action that would deter a similarly retaliation); Bartley v. Collins, 95-CV-10161, situated individual of ordinary firmness from exercising 2006 U.S. Dist. LEXIS 28285, at *21 (S.D.N.Y. his or her constitutional rights; and (3) there was a causal May 12, 2006) ("Bates' misbehavior report connection between the protected speech and the adverse against plaintiff and Collins's first report, which action-in other words, that the protected conduct was a both resulted in plaintiff's temporary loss of "substantial or motivating factor" in the defendants' various privileges such as permission to visit the decision to take action against the plaintiff.FN48 Here, commissary, likewise do not constitute adverse Plaintiff has alleged facts plausibly suggesting that he action because they were de minimis: they do not engaged in protected activity and that Defendant constitute penalties that would deter a similarly Zurawaski took action against him because of that activity. situated prisoner of ordinary firmness from See, supra, Part I.A. of this Report-Recommendation. exercising his constitutional rights.") [citations However, he has failed to allege facts plausibly suggesting omitted]. that the action taken by Defendant Zurawaski-denying him one hour of outdoor exercise while he was confined in the For these reasons, I recommend that the Court grant S.H.U.-was sufficiently adverse for purposes of the First Defendants' motion and dismiss Plaintiff's Complaint in its Amendment. Id. It is noteworthy that Plaintiff has alleged entirety. that, following this denial (on July 9, 2007), he continued to engage in the protected activity of filing complaints B. Alternative Basis for Dismissal: Fed.R.Civ.P. 41 about Defendant Zurawaski.FN49 Under the circumstances alleged, I find that depriving Plaintiff one hour of exercise Rule 41 of the Federal Rules of Civil Procedure was de minimis adverse action, in that it was insufficient provides, "If the plaintiff fails to prosecute or to comply to "deter a similarly situated prisoner of ordinary firmness with these rules or a court order, a defendant may move to from exercising his constitutional rights." Davis v. Goord, dismiss the action or any claim against it." Fed.R.Civ.P. 320 F.3d 246, 353 (2d Cir.2003) [internal quotation marks 41(b). Even though Fed.R.Civ.P. 41(b) speaks only of a and citation omitted]. FN50 dismissal on a motion by a defendant, courts have recognized that the rule does nothing to abrogate a district court's inherent power to dismiss a plaintiff's complaint, sua sponte, for failure to prosecute.FN51 Moreover, the term 2001 U.S. Dist. LEXIS 18133, at *3 (N.D.Tex.

"these rules" in Fed.R.Civ.P. 41(b) is construed to mean Nov. 5, 2001) (dismissing complaint pursuant to not only the Federal Rules of Civil Procedure, but also the Fed.R.Civ.P. 41[b] for failing to comply with the local rules of practice for a district court (since district court's Local Rule 83.13); Shough v. Fed.R.Civ.P. 83[a][1] expressly authorizes district courts Coyle, 00-CV-0237, 2000 U.S. Dist. LEXIS to adopt local rules of practice).FN52 As a result, 21796, at *4 (D.Colo. Aug. 10, 2000) dismissing Fed.R.Civ.P. 41(b) may be fairly characterized as complaint pursuant to Fed.R.Civ.P. 41[b] for providing for two independent grounds for dismissal on failing to comply with the district court's Local motion or on the Court's own initiative: (1) a failure to Rule 5.1[L] ). prosecute the action, and (2) a failure to comply with the procedural rules, or any Order, of the Court. Id. *8 W ith regard to the second ground for dismissal (a

FN51. Saylor v. Bastedo, 623 F.2d 230, 238-239 failure to comply with an Order of the Court), the legal (2d Cir.1980) (recognizing that, under the standard governing such a dismissal is very similar to the language of Rule 41[b], a district court retains legal standard governing a dismissal for failure to the inherent power to dismiss a plaintiff's prosecute. "Dismissal pursuant to Fed. R. Civ.P. 41(b) for complaint, sua sponte, for failure to prosecute) failure to comply with an order of the court is a matter [citations omitted]; see also N.D.N.Y. L.R. committed to the discretion of the district court."

FN53 The 41.2(a) ("Whenever it appears that the plaintiff correctness of a Rule 41(b) dismissal for failure to comply has failed to prosecute an action or proceeding with an order of the court is determined in light of five diligently, the assigned judge shall order it factors: dismissed.").

FN53. Alvarez v. Simmons Market Research

FN52. See, e.g., Tylicki v. Ryan, 244 F.R.D. 146, Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988) 147 (N.D.N.Y.2006) (Kahn, J.) (dismissing [citations omitted]. complaint pursuant to Fed.R.Civ.P. 41[b] for failing to comply with, inter alia, the district (1) the duration of the plaintiff's failure to comply with court's Local Rule 10.1[b][2] ); In re Interbank the court order, whether plaintiff was on notice that F u nd in g C o rp., 310 B .R. 2 3 8 , 2 5 4 failure to comply would result in dismissal, (3) whether (Bankr.S.D.N.Y.2004) (dismissing complaint the defendants are likely to be prejudiced by further pursuant to Fed.R.Civ.P. 41 [b] for failing to delay in the proceedings, (4) a balancing of the court's comply with, inter alia, the district court's local interest in managing its docket with the plaintiff's rules); see also Abdullah v. Acands, Inc., 30 F.3d interest in receiving a fair chance to be heard, and (5) 264, 269-70 (1st Cir.1994) (affirming district whether the judge has adequately considered a sanction court dismissal pursuant to Fed.R.Civ.P. 41[b] less drastic than dismissal.FN54 for failing to comply with, inter alia, the district court's local rule governing joinder); Kilgo v. FN54. Lucas v. Miles, 84 F.3d 532, 535 (2d Ricks, 983 F.2d 189, 192 (11th Cir.1993) ("A Cir.1996) [citations omitted]. district court has authority under Federal Rule of Civil Procedure 41(b) to dismiss actions for Here, on September 17, 2007, the Court ordered failure to comply with local rules."); Hewitt v. Plaintiff, inter alia, to keep the Clerk's Office apprised of Romeo-Rim, Inc., 05-CV-40236, 2006 U.S. Dist. his current address. (Dkt. No. 6, at 3 [Order filed Sept. 17, LEXIS 90803, at *2 (E.D.Mich. Nov. 14, 2006) 2007].) Specifically, the Court advised Plaintiff that he is (dismissing complaint pursuant to Fed.R.Civ.P. "required to promptly notify the Clerk's Office and all 41[b] for failing to comply with, inter alia, the parties or their counsel of any change in [his] address; district court's local rule requiring response to his failure to do same will result in the dismissal of this motion); Chillis v. U.S. Postal Off., 01-CV-0913, action." (Id.) As of that date, Plaintiff's address of record had been Marcy C.F. (Dkt. No. 1, ¶ 2 [Plf.'s Compl.].)

On November 10, 2007, Plaintiff notified the Court of his which contains similar notifications. N.D.N.Y. change in address to Fishkill C.F. (Dkt. No. 14.) However, L.R. 10.1(b)(2), 41.2(a), (b). Clearly, Plaintiff on November 24, 2007, Plaintiff was released from the received this notice, since in his Notice of custody of the Department of Correctional Services. (Id.) Change of Address, filed on November 15, 2007, See also N.Y. S. D.O.C.S. Inmate Locator System Report he promised the Court that "as soon [as][I] know R e g a r d i n g P l a i n t i f f h t t p : / / the address [of the] shelter or program [I'm] nysdocslookup.docs.state.ny.us/GCA00P00/WIQ3/W IN going to I will write the [C]court with the Q130 (last visited Sept. 11, 2008). Since his release, address." (Dkt. No. 14.)

Plaintiff has not notified the Court of his change of address. FN57. For example, further delay by Plaintiff may very well result in the fading of memories, I have weighed the five factors listed above, and I the discarding of relevant documents, and the have concluded that they weigh decidedly in favor of retirement or transfer of witnesses. See dismissal.FN55 With regard to the first factor, I find that the Geordiadis v. First Boston Corp., 167 F.R.D. 24, duration of Plaintiff's failure to provide his current address 25 (S.D.N.Y.1996) ("The passage of time always has been nearly nine and a half months. With regard to the threatens difficulty as memories fade. Given the second factor, I find that Plaintiff has received adequate age of this case, that problem probably is severe notice that the sort of delay that he has caused in this already. The additional delay that plaintiff has action (due to his failure to provide his current address) caused here can only make matters worse."). would result in dismissal.FN56 With regard to the third factor, I find that Defendants are likely to be prejudiced by FN58. I note that it is cases like this one that a further delay. FN57 With regard to the fourth factor, I have delay the resolution of other cases, and that taken care to strike an appropriate balance between contribute to the Second Circuit's dubious alleviating Court calendar congestion and protecting a distinction as having (among the twelve circuits, party's right to due process and a fair chance to be heard, including the D.C. Circuit) the longest median and I find that the need to alleviate congestion on the time to disposition for prisoner civil rights cases, Court's docket outweighs Plaintiff's right to receive a between 2000 and 2005 (9.8 months, as further chance to be heard in this matter. FN58 With regard compared to a national average of 5.7 months). to the fifth factors, I have considered all less-drastic sanctions and rejected them under the circumstances.FN59 FN59. For example, I am persuaded that issuing an Order chastising Plaintiff for his conduct

FN55. See, e.g., Robinson v. Middaugh, would be futile, given the fact that such an Order 95-CV-0836, 1997 U.S. Dist. LEXIS 13929, at will almost certainly never reach Plaintiff, due to *2-3 (N.D.N.Y. Sept. 11, 1997) (Pooler, J.) his failure to provide a current address. I am also (dismissing action under Fed.R.Civ.P. 41[b] persuaded that simply waiting another month or where plaintiff failed to inform the Clerk of his so for Plaintiff to contact the Court would also be change of address despite having been previously futile, given the fact that he has failed to contact ordered by Court to keep the Clerk advised of the Court for nearly ten months now. such a change).

*9 For these reasons, I recommend that, in the FN56. This notice was provided by the Court's alternative, the Court sua sponte dismiss Plaintiff's Order of September 17, 2007. (Dkt. No. 6, at 3 Complaint with prejudice for failure to diligently [Order filed Sept. 17, 2007].) It was provided prosecute this action. also by the Local Rules of Practice for this Court, which the Clerk's Office has provided to all ACCORDINGLY, it is correctional facilities in New York State, and RECOM M ENDED that Defendants' motion to 532, 535 (5th Cir.1994) ("By waiting until after dismiss for failure to state a claim (Dkt. No. 12) be the magistrate judge had issued its findings and GRANTED, and that Plaintiff's Complaint be recommendations [to raise its procedural default DISMISSED in its entirety. argument] ... Respondent has waived procedural default ... objection [ ].") [citations omitted]; A N Y O B J E C T I O N S t o t h i s Greenhow v. Sec'y of Health & Human Servs., Report-Recommendation must be filed with the Clerk 863 F.2d 633, 638-39 (9th Cir.1988) of this Court within TEN (10) WORKING DAYS, ("[A]llowing parties to litigate fully their case PLUS THREE (3) CALENDAR DAYS from the date before the magistrate and, if unsuccessful, to of this Report-Recommendation (unless the third change their strategy and present a different calendar day is a legal holiday, in which case add a theory to the district court would frustrate the fourth calendar day). See 28 U.S.C. § 636(b)(1); purpose of the Magistrates Act."), overruled on Fed.R.Civ.P. 72(b); N.D.N.Y. L.R. 72.1(c); Fed.R.Civ.P. other grounds by U.S. v. Hardesty, 977 F.2d 6(a)(2), (d). 1347 (9th Cir.1992); Patterson-Leitch Co. Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, BE ADVISED that the District Court, on de novo 990-91 (1st Cir.1988) ("[A]n unsuccessful party review, will ordinarily refuse to consider arguments, is not entitled as of right to de novo review by case law and/or evidentiary material that could have the judge of an argument never seasonably raised been, but were not, presented to the M agistrate Judge before the magistrate.") [citation omitted]. in the first instance. FN60

FN60. See, e.g., Paddington Partners v. objections to this Report-Recommendation will Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994) PRECLUDE LATER APPELLATE REVIEW of any ("In objecting to a magistrate's report before the Order of judgment that will be entered. Roldan v. district court, a party has no right to present Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. further testimony when it offers no justification Sec'y of H.H.S., 892 F.2d 15 [2d Cir.1989] ). for not offering the testimony at the hearing before the magistrate.") [internal quotation marks N.D.N.Y.,2008. and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n. Tejada v. Mance 3 (2d Cir.1990) (district court did not abuse its Not Reported in F.Supp.2d, 2008 WL 4384460 discretion in denying plaintiff's request to present (N.D.N.Y.) additional testimony where plaintiff "offered no END OF DOCUMENT justification for not offering the testimony at the hearing before the magistrate"); Alexander v. Evans, 88-CV-5309, 1993 WL 427409, at *18 n. 8 (S.D.N.Y. Sept.30, 1993) (declining to consider affidavit of expert witness that was not before magistrate) [citation omitted]; see also Murr v. U.S., 200 F.3d 895, 902, n. 1 (6th Cir.2000) ("Petitioner's failure to raise this claim before the magistrate constitutes waiver.");

Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996) ("Issues raised for the first time in o b je c tio n s to th e m a g istrate jud g e's recommendations are deemed waived.") [citations omitted]; Cupit v. Whitley, 28 F.3d BE ALSO ADVISED that the failure to file timely A full hearing was initially scheduled for December 11, 2001. After conferencing with the parties, the Court Only the Westlaw citation is currently available. determined that it would be prudent to proceed with a United States District Court, N.D. New York. bifurcated hearing limited to the issues of whether Mr. Selah sincerely holds his beliefs and whether those beliefs Selam SELAH, Plaintiff, are religious in nature. See Jolly v. Coughlin, 76 F.3d 468, v. 476 (2d Cir.1996).

Glenn GOORD, Commissioner of Docs, et al, Defendants. A hearing on those issues took place on December 11, No. 00-CV-0644. 2001. Mr. Selah testified as did Nurse Christine Coyne, a correctional facility nursing supervisor; Director of the Jan. 2, 2002. Inmate Grievance Program Thomas G. Eagen; and Dr. Elmer Robert Keach, III, Albany NY, Appointed for Lester N. Wright, Deputy Commissioner and Chief Plaintiff, of counsel. Medical Officer of DOCs. The Court now issues the following decision.

Attorney General of New York, The Capitol, Albany, NY, for the Defendants. I. FACTUAL FINDINGS Deborah A. Ferro, Assistant Attorney General, of counsel. A. Plaintiff's Religious Beliefs Decision and Order The Court found that Plaintiff testified credibly regarding his religious beliefs and the basis for those MCAVOY, J. beliefs. Thus, the Court will summarize the relevant *1 Plaintiff, who is incarcerated, brought this action portions of those beliefs here. pursuant to 42 U.S.C. § 1983 claiming that the current New York State Department of Corrections policy of Plaintiff is an Ethiopian Orthodox Christian. He was mandatory administration of a purified protein derivative raised in this faith and continues to adhere to this faith (PPD) skin test to inmates in order to detect latent today. Plaintiff has filed numerous grievances with DOCs Tuberculosis (TB) violates his First Amendment right to alleging denials of his religious expression. These include free expression of his religion. Plaintiff originally brought grievances requesting that he be allowed to have a kosher this action pro se, but following the Southern District's diet, requesting that his religion be properly recognized on decision in Reynolds v. Goord, 103 F.Supp.2d 316 his inmate housing form, requesting that he be allowed a (S.D.N.Y.2000), this Court appointed counsel for Mr. prayer shawl, and requesting that he be allowed a prayer Selah. cap. Plaintiff additionally spent some time on a hunger Mr. Selah had filed a motion seeking a preliminary strike, refusing to eat when DOCs would not supply him injunction preventing the Department of Corrections with a kosher diet. He has filed two previous lawsuits (DOCs) from administering the PPD test during the against DOCs regarding the official recognition of his pendency of this action. That motion was supplemented by religion and his right to a kosher diet. These resulted in his appointed counsel. The Attorney General responded to agreements by DOCs to recognize Plaintiff's religion and both the initial motion and the supplemental papers. allow him to have a kosher diet.

Following oral argument on November 13, 2001, this Court ruled in an oral decision that there were evidentiary Plaintiff testified that his religion is similar to issues necessitating a hearing.

Judaism, except that his religion recognizes Jesus Christ complaints with regard to the TB testing that were pointed as the Messiah. Thus, he consults with the prison Rabbi out by DOCs. The Court will address those here. when he has questions about how he should follow his Prior PPD Tests religion. Plaintiff believes in a literal interpretation of the Bible. It is from this literal interpretation that his The first item addressed by DOCs is that Plaintiff objections to the PPD test stem. In particular, Plaintiff has took the PPD test from 1993 until 1999 without refusal. provided the Court with two passages of the Bible that he Plaintiff explained this by stating that it was his belief that believes are violated by the PPD test. These verses are as refusal of the PPD test constituted disobedience of a direct follows. order, and that such reports would harm his chances for parole. Plaintiff also indicated that he had objected to the *2 Ye shall not make any cuttings in your flesh for the tests during this time, but had not refused them because of dead, nor print any marks upon you: I am the LORD. his desire not to be on TB hold or to harm his chances of parole.

Leviticus 19:28 (King James). The Court also notes that Plaintiff had his legal name changed, as required by his religion, on May 4, 1998.

They shall not make baldness upon their head, neither Additionally, it is around this time in 1998 that Plaintiff shall they shave off the corner of their beard, nor make began to file numerous grievances regarding his religious any cuttings in their flesh. rights. It is not unimaginable that Plaintiff, for whatever

Leviticus 21:5 (King James).FN1 Based upon these reason, began to take his religion more seriously around passages, Plaintiff believes that he should not pierce his this time. flesh, should not be tatooed, and should not mar his skin in any way. When questioned about other provisions of the DOCs next points out that the records of Plaintiff's Bible, such as the prohibition in Leviticus against cutting grievances and objections to the PPD test do not one's hair and beard, Plaintiff was articulate in clarifying consistently relate to his religious beliefs. The Court will his beliefs and in providing support for his actions taken discuss these records here. in accordance with his interpretation of his religious obligations.FN2 Medical Records

FN1. The Court has used the King James DOCs points to the numerous medical records in Version of the Bible as that is what was used by which there is no mention of Plaintiff's religious objection. Plaintiff at the hearing. The Court notes that no reason for Plaintiff's refusal is stated in any of these records. They simply state that he FN2. For example, Plaintiff was asked refused PPD testing. The one exception to this is a note by specifically about the prohibition against cutting Nurse Androsko on December 16, 1999, which states: the hair and beard. It was obvious from Plaintiff's "per Inmate 'sick and tired of being stuck, wants alternate appearance that Plaintiff does, in fact, cut his hair testing as [sic] breathing test or x-rays." ' and trim his beard. Plaintiff stated that he had On January 26, 2000, there is a medical notation that discussed this with the Rabbi and religious Plaintiff "refuses for religious reasons" to take the PPD leaders in the Ethiopian Orthodox Church and test. That note is signed by Nurse Joyce Carson. The Court believed that this meant he was not to shave his notes that Nurse Carson was not the nurse who regularly hair or beard completely off. wrote Plaintiff's records. There are other records in which

Plaintiff requests alternative treatments to the PPD test,

B. DOCs Response but again, no reason for his objection is given.

The Court initially agreed to a bifurcated hearing The Court finds the medical records to be because of several inconsistencies in Plaintiff's prior inconclusive as to Plaintiff's intent. The records often consist of no more than the phrase "refused PPD test." Other Tests Involving Needles Without more consistent records regarding what about the PPD test he objected to, they do not clarify whether More problematic are other instances of Plaintiff Plaintiff objected for religious reasons. allowing needle tests to be done on him. In particular,

DOCs put forward evidence that Plaintiff received a

Inmate Grievances tetanus shots in 1991 and consented to an electromyography and nerve conduction test in 1997 and *3 The Plaintiff initiated a grievance on December again in 1999 .FN3 While the tetanus shot is prior to the 20, 1999. (Plaintiff's Ex. "1"). That grievance refers to apparent religious awakening of Plaintiff, the second numerous reasons for Plaintiff's desire not to take the PPD electromyography is not. Plaintiff did not testify regarding test. These include religious deprivation, that the his reasons for consenting to this test. The second test was substance did not look like the substance given to other a follow-up exam to test the changes that had occurred in patients, and that he had a fear of needles and HIV. the intervening time. Plaintiff's lack of objection to this Notably, the Inmate Grievance Committee recommended test does cast some doubt on the strictness of his religious that Plaintiff be given alternative means of TB testing beliefs. "which are the standards set by the federal courts." FN3. These tests involve electrodes being placed Although the Inmate Grievance Committee found that on the body and having electric currents sent Plaintiff had stated a recognizable objection, the medical through to test the reaction of the nerves. The staff at Auburn and the Superintendent on his direct appeal second part of the test involves having needles rejected that recommendation. Plaintiff then appealed to actually stuck into the skin of the patient and the Central Office Review Committee (CORC). Clearly, electric current delivered through those needles. that appeal by Plaintiff lays out his religious objections to the TB testing. He references the biblical statements on II LEGAL CONCLUSIONS which he relies and the prior settlement with DOCs in which DOCs agreed to recognize Plaintiff's religion. In determining whether Plaintiff has established that

The remainder of the inmate grievances address issues his First Amendment right to exercise his religion has been other than the PPD Test. infringed, the Court's analysis is limited to two issues-whether Selah sincerely holds his beliefs, and February 19, 2000 PPD test whether these beliefs are, "according to the claimant's own scheme of things," religious. Leitzsey v. Coombe, 998 On February 19, 2000, Plaintiff agreed to take the F.Supp. 282, 288 (W.D.N.Y.1998) (citing United States PPD test after several months of refusing. It is undisputed v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d that Plaintiff took the test in order to attend his father's 733 (1965)). "[The] judiciary has but a limited function ... funeral. DOCs makes much of the fact that Plaintiff did in determining whether beliefs are to be accorded free not enter the funeral home; however, it is clear from exercise protection. Our scrutiny extends only to whether Plaintiff's testimony that he did not enter the funeral home a claimant sincerely holds a belief and whether the belief because he was fully shackled. He states that when he is religious in nature." Jolly v. Coughlin, 76 F.3d 468, 476 attended his mother's funeral, no such shackles were in (2d Cir.1996); Breeland v. Goord, 1997 WL 139533, at *4

place. Plaintiff's father was a well-known member of the (S.D.N.Y. March 27, 1997). The propriety of a religious community, and Plaintiff believed that television cameras belief is not to be considered. Hernandez v. C.I.R., 490 would likely be covering his father's funeral. Thus, the U.S. 680, 699 (1989). Thus, the Court will examine these Court finds it entirely reasonable for Plaintiff to have two factors in reverse order. made the decision, as he asserts he did, not to embarrass Whether the Beliefs are Religious his family by attending his father's funeral in shackles. It is also clear that Plaintiff took this PPD test solely for the *4 The Second Circuit has approved of the following purpose of attending the funeral. definition of religion: "the feelings, acts, and experiences of individual men in their solitude, so far as they Consciousness v. Barber, 650 F.2d 430, 441 (2d apprehend themselves to stand in relation to whatever they Cir.1981)). The Court must attempt to differentiate may consider the divine." See Patrick v. LeFevre, 745 between "those beliefs that are held as a matter of F.2d 153, 157 (2d Cir.1984) and United States v. Moon, conscience and those that are animated by motives of 718 F.2d 1210, 1227 (2d Cir.1983) (both quoting deception and fraud." Patrick 749 F.2d at 157. The WILLIAM JAMES, THE VARIETIES OF RELIGIOUS Second Circuit has called this analysis "exceedingly EXPERIENCE 31 (1910)). Whether a belief is religious amorphous." Id. It "requir[es] the factfinder to delve into as opposed to simply a personal fear is a credibility the claimant's most veiled motivations and vigilantly determination for the factfinder to make. See Galinsky v. separate the issue of sincerity from the factfinder's Board of Education, 213 F.3d 262, 262 (2d Cir.2000) perception of the religious nature of the claimant's (trial court's finding that desire to avoid immunization beliefs." Id. stemmed from personal fears rather than religious beliefs *5 The Court notes that judicial entities are would not be disturbed as it was a credibility particularly ill suited for determining matters of essentially determination). The accuracy or acceptability of the personal conscience. Recognizing this inherent limitation, beliefs are not to be considered in this analysis. Patrick, the Court must base its decision on the credibility of the 745 F.2d at 157. Nor must the plaintiff show that his Plaintiff and the circumstances surrounding his objection beliefs are generally practiced in the religion he claims. to the PPD test. In examining these items, the Court See Campos v. Coughlin, 854 F.Supp. 194, 210 concludes that the Plaintiff sincerely holds his religious (S.D.N.Y.1994). "The freedom to exercise religious beliefs. beliefs cannot be made contingent on the objective truth of such beliefs." Patrick, 745 F.2d at 157 (quoting United First, the Plaintiff testified credibly regarding his States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886, 88 religious objections to the PPD test. Further, Plaintiff's L.Ed. 1148 (1944)). actions, at least since 1998, have shown him to The Court concludes that Plaintiff's beliefs are consistently object to the PPD test. Although Plaintiff did religious in nature. Plaintiff testified to the nature of his submit to the test in order to attend his father's funeral, the beliefs and the authority on which he bases those beliefs. Court notes that a Plaintiff may show sincerity even when Plaintiff also testified to consultation with religious he submits to a test after coercion. See Jolly 75 F.3d at leaders regarding the appropriate way to implement his 477 (Inmate did not need to show lengthy resistance to test beliefs. Plaintiff supported his belief that the skin should to prove sincerity); Reynolds, 103 F.Supp.2d at 334-335 not be lacerated with historical reasons for the rule, (inmate who took PPD test after objecting still sincere in stemming from religious origins, and provided ample his beliefs). Further, the Court does not find Plaintiff's interpretation for the various provisions of the Bible he prior submission to PPD tests to be a bar to his current claims support his view. Thus, Plaintiff has established the objections, particularly in light of the other circumstances first prong of the test. in Plaintiff's religious life.

Whether the Beliefs are Sincere The Court is mindful that Plaintiff did submit to the electromyography involving needles in April of 1999.

In analyzing the sincerity of Plaintiff's religious Despite this anomaly, the Court finds that Plaintiff is beliefs, this Court starts with the proposition that "[a] sincere in his desire to follow his faith as he sees claimant need not be a member of a particular organized it-including the prohibition on piercing the skin or religious denomination to show sincerity of beliefs." lacerating the flesh. The Court cannot truly know Jackson v. Mann, 169 F.3d 316, 319 (2d Cir.1999). When Plaintiff's heart and conscience, but determines that to the analyzing the sincerity of petitioner's religious beliefs, the extent it can judge Plaintiff's sincerity, that Plaintiff has Court should "seek[ ] to determine an adherent's good made a "good faith" expression of his religious beliefs. faith in the expression of his religious belief." Patrick, 745 F.2d at 157 (citing International Society for Krishna III.

CONCLUSION

Inasmuch as the Court finds that Mr. Selam Selah sincerely holds his beliefs and that these beliefs are religious, and that the Plaintiff's religious beliefs are burdened by DOCs' policy (see previous oral decision-if Plaintiff's beliefs are sincere and religious, then they are burdened by DOCs policy), the parties are ordered to proceed with a hearing on the issue of whether the burden placed on the Plaintiff by DOCs policy is justified.

IT IS SO ORDERED

N.D.N.Y.,2002.

Selah v. Goord Not Reported in F.Supp.2d, 2002 WL 73231 (N.D.N.Y.) END OF DOCUMENT

--- F.Supp.2d ----, 2012 WL 45470 (W.D.N.Y.)

(Cite as: 2012 WL 45470 (W.D.N.Y.))

If a complaint is sufficient to state a claim on which

Only the Westlaw citation is currently available. relief can be granted, the plaintiff's failure to respond to a motion to dismiss for failure to state a claim does not United States District Court, warrant dismissal. Fed.Rules Civ.Proc.Rule 12(b)(6), 28

U.S.C.A. W.D. New York.

Leon C. BLOOM, Jr., Plaintiff, [2] Limitation of Actions 241 58(1) v. Brian FISCHER in his capacity as Commissioner of the 241 Limitation of Actions New York State Department of Correctional Services (DOCS) and in his individual capacity, et al., 241II Computation of Period of Limitation Defendants. 241II(A) Accrual of Right of Action or Defense No. 11--CV--6237L. 241k58 Liabilities Created by Statute 241k58(1) k. In general. Most Cited Cases

Jan. 3, 2012. State inmate's causes of action for damages under § Background: State inmate brought § 1983 action against 1983 against Department of Correctional Services Department of Correctional Services (DOCS) employees (DOCS) employees or officials, alleging they violated his or officials, alleging they violated his constitutional rights constitutional rights by administratively imposing a period by administratively imposing a period of post-release of post-release supervision (PRS) on him to follow his supervision (PRS) on him to follow his judicially-imposed judicially-imposed sentence of imprisonment accrued, and sentence of imprisonment. Defendants moved to dismiss three-year limitations period began to run, at point when for failure to state a claim. state inmate's petition for writ of habeas corpus was granted. 42 U.S.C.A. § 1983.

Holdings: The District Court, David G. Larimer, J., held that: [3] Civil Rights 78 1376(7)

(1) two of inmate's claims were untimely, and 78 Civil Rights (2) defendants, in their personal capacities, were entitled to qualified immunity. 78III Federal Remedies in General 78k1372 Privilege or Immunity; Good Faith and Motion granted. Probable Cause 78k1376 Government Agencies and Officers

West Headnotes 78k1376(7) k. Prisons, jails, and their officers; parole and probation officers. Most Cited Cases [1] Federal Civil Procedure 170A 1825 Department of Correctional Services (DOCS) employees or officials, in their personal capacities, were 170A Federal Civil Procedure entitled to qualified immunity from state inmate's § 1983 claims, alleging defendants violated inmate's constitutional 170AXI Dismissal rights by administratively imposing a period of 170AXI(B) Involuntary Dismissal post-release supervision (PRS) on him to follow his 170AXI(B)5 Proceedings judicially-imposed sentence of imprisonment; although 170Ak1825 k. Motion and proceedings unconstitutionality and unlawfulness of practice of thereon. Most Cited Cases administratively mandating PRS was presently clear, it was not so prior to when state Court of Appeals held that pursuant to Rule 12(b)(6) of the Federal Rules of Civil state law barred DOCS from adding term of PRS onto Procedure. Plaintiff has not responded to the motion.FN1 sentence in absence of pronouncement of such by sentencing judge. 42 U.S.C.A. § 1983. DISCUSSION [4] Constitutional Law 92 4838 [1] Plaintiff's failure to oppose the motion to dismiss does not relieve the Court of its obligation to consider the 92 Constitutional Law merits of plaintiff's claims. "If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's 92XXVII Due Process failure to respond to a Rule 12(b)(6) motion does not 92XXVII(H) Criminal Law warrant dismissal." McCall v. Pataki, 232 F.3d 321, 322 92XXVII(H)12 Other Particular Issues and (2d Cir.2000). Plaintiff's failure to respond to the motion Applications notwithstanding, then, the Court must determine whether, 92k4838 k. Parole. Most Cited Cases "accept[ing] the allegations contained in the complaint as Pardon and Parole 284 46 true, and draw[ing] all reasonable inferences in favor of the non-movant," plaintiff has stated a facially valid claim. 284 Pardon and Parole Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). In undertaking that analysis, the Court employs the now 284II Parole well-known standards set forth in Bell Atlantic Corp. v.

284k45 Authority or Duty to Grant Parole or Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 Parole Consideration (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 284k46 k. Parole as right or privilege. Most 1937, 173 L.Ed.2d 868 (2009), under which "a formulaic Cited Cases recitation of the elements of a cause of action will not do.

New York's parole scheme is not one that creates in Factual allegations must be enough to raise a right to relief any prisoner a legitimate expectancy of release, and thus above the speculative level." Twombly, 550 U.S. at 555, plaintiffs have no liberty interest in parole, and the 127 S.Ct. 1955. protections of the Due Process Clause are inapplicable. Plaintiff alleges that he was released from prison in U.S.C.A. Const.Amend. 14. October 2006, having at that point "served 6/7ths of his nine years sentence." Complaint ¶ 10. He further alleges Leon C. Bloom, Jr., Altona, NY, pro se. that his maximum determinate sentence expired in October 2007, but that in January 2008, DOCS re-imprisoned him J. Richard Benitez, NYS Attorney General's Office, for violating the conditions of his PRS. Rochester, NY, for Defendant.

Plaintiff sought relief in state court by means of a

DECISION AND ORDER petition for a writ of habeas corpus. In April 2008, a state court judge granted plaintiff's application, ordered that the DAVID G. LARIMER, District Judge. PRS imposed on plaintiff by DOCS be vacated, and that *1 Plaintiff, Leon C. Bloom, appearing pro se, plaintiff be released from custody. Plaintiff was released commenced this action under 42 U.S.C. § 1983. Plaintiff, on April 3, 2008, and DOCS vacated the remaining an inmate in the custody of the New York State portion of his five-year term of PRS.

Department of Correctional Services ("DOCS"), alleges that the defendants, all of whom at all relevant times, were In June 2010, plaintiff was convicted at trial of grand DOCS employees or officials, have violated his larceny in the fourth degree. He alleges that his constitutional rights by administratively imposing a period indeterminate sentence of two to four years was based in of post-release supervision ("PRS") on plaintiff to follow part on his alleged 2008 PRS violation, and that he was his judicially-imposed sentence of imprisonment. denied early release because of the PRS violation. Plaintiff

Defendants have moved to dismiss the complaint alleges that DOCS has since removed the information concerning the PRS violation from his file, although his sentence on the grand larceny charge remains in place, and [3] In addition, to the extent that plaintiff's claims are at the time that he filed the complaint in this action in May brought against defendants in their individual capacities, 2011, plaintiff was still incarcerated pursuant to that defendants are entitled to qualified immunity. In a similar larceny sentence. case, this Court has held that "[a]lthough the unconstitutionality and/or unlawfulness of defendants' *2 Based on these allegations, plaintiff asserts three practice of administratively mandating PRS may be clear causes of action. The first alleges that by imposing a term today, it was manifestly not so prior to April 2008," when of PRS, defendants violated plaintiff's constitutional the New York Court of Appeals held in Garner v. New rights. In support of that claim, plaintiff cites Earley v. York State DOCS, 10 N.Y.3d 358, 859 N.Y.S.2d 590, 889 Murray, 451 F.3d 71 (2d Cir.2006), cert. denied, 551 U.S. N.E.2d 467 (2008), and in People v. Sparber, 10 N.Y.3d 1159, 127 S.Ct. 3014, 168 L.Ed.2d 752 (2007), in which 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008), that state the Second Circuit held that a term of PRS was not law barred DOCS from adding a term of PRS onto a enforceable unless it had been pronounced by the defendant's sentence in the absence of a pronouncement sentencing judge on the record. for such by the sentencing judge. "It is these decisions-and not Earley-which courts in the Second In his second cause of action, plaintiff alleges that his Circuit have consistently understood to have effected the "unlawful re-imprisonment ... past the maximum change in the law, and established the temporal boundary expiration date of his determinate sentence" violated his of qualified immunity for DOCS officials alleged to have constitutional rights. Plaintiff's third cause of action asserts administratively imposed PRS." Vincent v. Yelich, 812 that defendants violated his rights "[b]y failing to remove F.Supp.2d 276, 281 (W.D.N.Y.2011). Since plaintiff's alleged PRS violations from [his] record" after the state term of PRS was imposed prior to the issuance of those court granted plaintiff's habeas corpus application in April 2008 decisions by the Court of Appeals, defendants are 2008. protected by qualified immunity.

[2] Plaintiff's first two causes of action must be *3 [4] Plaintiff's third cause of action, which arises dismissed as time-barred. "[C]courts in this circuit have out of denial of his application for early release with uniformly held that pursuant to Heck v. Humphrey [, 512 respect to the sentence imposed on him in 2010 for his U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),] the grand larceny conviction, fails to state a cognizable claim. claims of plaintiffs [arising out of the administrative "New York's parole scheme 'is not one that creates in any imposition of PRS] do not accrue until the underlying prisoner a legitimate expectancy of release,' and thus sentence is invalidated, or, in this case, until [plaintiff's] 'plaintiffs have no liberty interest in parole, and the petition for writ of habeas corpus was granted." protections of the Due Process Clause are inapplicable.' " Albergottie v. New York City, No. 08 Civ. 8331, 2011 WL Duemmel v. Fischer, 368 Fed.Appx. 180, 182 (2d 519296, at *4 (S.D.N.Y. Feb. 15, 2011) (citing cases). See Cir.2010) (quoting Barna v. Travis, 239 F.3d 169, 171 (2d Heck, 512 U.S. at 489--90, 114 S.Ct. 2364 ("[A] § 1983 Cir.2001)). See also Fifield v. Eaton, 669 F.Supp.2d 294, cause of action for damages attributable to an 296--98 (W.D.N.Y.2009) (granting motion to dismiss unconstitutional conviction or sentence does not accrue inmate's claim that he was denied parole opportunities due until the conviction or sentence has been invalidated"). to his refusal to participate in SOP because inmate had no Since plaintiff's habeas petition was granted in April 2008, liberty interest in parole, conditional release, discretionary his complaint, which was filed in this Court in May 2011, good time credits, or choosing his programming); see also is untimely under the three-year statute of limitations Kneitel v. Goord, No. 9:05--cv--30, 2008 WL 2485061, at applicable to § 1983 claims. See Palmer v. Stuart, 274 *5 (N.D.N.Y. June 18, 2008) ("As per any potential Fed.Appx. 58, 58 (2d Cir.2008); McKithen v. Brown, 481 liberty interest created by statute or regulations in the State F.3d 89, 100 n. 12 (2d Cir.2007), cert. denied, 552 U.S. of New York, the governing statute clearly states that 1179, 128 S.Ct. 1218, 170 L.Ed.2d 59 (2008). '[p]articipation in a temporary release program shall be a privilege. Nothing contained in this article may be construed to confer upon any inmate the right to participate ... in a temporary release program' ") (quoting N.Y. Correct. L. § 855(9)). Cf. Friedl v. City of New York, 210 F.3d 79, 84 (2d Cir.2000) ("Prisoners on work release have a liberty interest in continued participation in such programs") (emphases added).

Finally, to the extent that plaintiff sues defendants in their official capacities, his claims are barred by sovereign immunity. See Whitfield v. O'Connell, 09 Civ.1925, 2010 WL 1010060, at *4 (S.D.N.Y. Mar. 18, 2010) ("[B]ecause Section 1983 does not abrogate a state's sovereign immunity and the State of New York has not waived its immunity, claims against DOCS for both monetary and injunctive relief are barred under the Eleventh Amendment") (citations omitted), aff'd, 402 Fed.Appx. 563 (2d Cir.2010), cert. denied, ------ U.S. --------, 131 S.Ct. 2132, 179 L.Ed.2d 920 (2011); Smith v. Paterson, No. 08 Civ. 3313, 2010 WL 4359225, at *3 (S.D.N.Y. Nov. 3, 2010) ("Neither the fact that individuals and not the state are named as defendants in this action, nor the fact plaintiffs characterize the relief sought as equitable, overcomes the Eleventh Amendment bar") (citing Edelman v. Jordan, 415 U.S. 651, 666--668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)).

CONCLUSION

Defendants' motion to dismiss the complaint (Dkt. # 6) is granted, and the complaint is dismissed.

IT IS SO ORDERED.

FN1. The New York State Department of

Correctional Services internet Inmate Lookup website, http://nysdocslookup.docs.state.ny.us, indicates that plaintiff was released from DOCS custody, to the custody of the New York State Division of Parole, on November 14, 2011.

W.D.N.Y.,2012.

Bloom v. Fischer --- F.Supp.2d ----, 2012 WL 45470 (W.D.N.Y.) END OF DOCUMENT

B io-Reference (collectively the "Bio-Reference

Defendants") move to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) and, in the Only the Westlaw citation is currently available. alternative, they move for summary judgment. For the This decision was reviewed by West editorial staff following reasons, the State Defendants' and the and not assigned editorial enhancements. Bio-Reference Defendants' motions to dismiss the Amended Complaint are granted.

United States District Court, FN1. Numerous other individual State Defendants named and unnamed in the Amended S.D. New York. Complaint have not been served.

Those named John WHITFIELD, Plaintiff, Defendants are: DOCS Inmate Grievance v. Program Director Thomas G. Eagen, Drs. David Dr. David O'CONNELL, et al., Defendants. O'Connell, J, Perilli, Lester Wright, Jerome Fein, No. 09 Civ.1925(WHP). "Everett," Gerald Ginsberg, Heidi L. Fine, M.A. Halko, Andrew Shapiro, and F. Lancellotti; and March 18, 2010. Registered Nurses Philip Erickson, Michael Mr. John Whitfield, Woodbourne, NY, pro se. Michener, Colleen Bennett, Margaret Coloni, Ruth Gilligan, James McMahon, Robert Magee, Christina Chinwe Okereke, Esq., New York State Office Cathie Turta-Yohe, Carol Kunes, Baib of the Attorney General, New York, NY, for State Koziarski, Leacy Miller, D. Rick, Mana Jones, Defendants. Joyce Gutowski, Suzette Cainper, Elizabeth Hamawy, Roberta Jahn-Sissoko, and Valerie Joseph T. Pareres, Esq., Rachel Hilary Poritz, Esq., Jane Monroe. Silverson, Pareres & Lombardi, L.L.P., New York, NY, for Bio-Reference Defendants.

BACKGROUND

MEMORANDUM & ORDER

For purposes of these motions, this Court accepts the following allegations of the Amended Complaint as WILLIAM H. PAULEY III, District Judge. true.FN2 Whitfield has been in DOCS custody since June

*1 Plaintiff pro se John Whitfield ("W hitfield") 1988. At that time, he entered Downstate Correctional brings this federal civil rights action against the New York Facility ("Downstate") and has been housed over the last State Department of Correctional Services ("DOCS"), twenty years in at least six DOCS facilities around New various named and unnamed DOCS officials and medical York State. (Amended Verified Complaint dated Sept. 27, professionals at six New York State prisons in their 2009 ("Compl.") ¶ 59.) individual and official capacities, Bio-Reference FN2. In his Complaint, Whitfield references L a b o r a t o r i e s s / h / a M e d i l a b s L a b o r a t o r y grievances # SS-39628-04, # WB-14349-08 and ("Bio-Reference"), Robert L. Rush, Ph.D. ("Dr.Rush"), # WB14427-08, and five laboratory reports and unnamed Bio-Reference technologists. Defendants Dr. dated June 2, 1988, September 23, 1993, March N. Muthra ("Dr.Muthra"), Dr. Khee Tint Maw 22, 1995, August 30, 2001, and July 29, 2006. ("Dr.Maw"), Philip Williams ("Williams"), Brian Fischer

FN1 These documents, which Whitfield submitted ("Fischer"), and DOCS (collectively the "State with his opposition papers, are incorporated by Defendants") move to dismiss the Amended Complaint reference and properly considered on a motion to pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal dismiss. See, e.g., Sanchez v. Velez, No. 08 Civ. Rules of Civil Procedure. Defendants Dr. Rush and 1519(NRB), 2009 WL 2252319, at *1 & n. 1 When the pain persisted after completing the antibiotic (S.D.N.Y. July 24, 2009) (considering pro se treatment, he attended sick call and asked to see a doctor. plaintiff's grievances referenced in the complaint (Compl.¶ 56.) on motion to dismiss).

On August 13, 2008 W hitfield received copies of his Whitfield has complained to DOCS medical staff DOCS medical records that he had requested. (Compl.¶ about lower back, kidney, chest and lung pain for years. 56.) Whitfield claims they showed that "as far back as (Compl.¶¶ 58, 94, 101.) He asserts DOCS employees March 1995 there was clear documentary evidence of omitted many of his complaints from his Ambulatory bacteria in his urine." (Compl.¶ 56.) Specifically, a Health Records. (Compl.¶ 97.) On November 6, 2000, laboratory report from Attica Correctional Facility Whitfield received treatment for bacterial pneumonia from ("Attica") dated March 22, 1995 indicated a "few" Williams, a physician's assistant at Sing Sing Correctional bacteria in his urine (Pl. Aff. Ex. B: Laboratory report Facility ("Sing Sing"). (Compl.¶¶ 6, 74.) Whitfield alleges dated Mar. 22, 1995 ("Attica Lab Report")), yet according that although he experienced a severe allergic reaction to to Whitfield he did not receive antibiotics for that the prescribed antibiotic, Williams forced him to continue condition at Attica (Compl.¶ 56). Further, two laboratory taking the medication and refused to prescribe another. reports from Sing Sing dated August 30, 2001 and July 29, (Compl.¶ 100.) 2006 recorded "moderate" bacteria in his urine and abnormal hematology results such as low white blood cell On October 5, 2004, Whitfield filed grievance # and platelet counts. (Compl. ¶ 57; Pl. Aff. Ex. B: SS-39628-04 (the "Chest Pain Grievance") at Sing Sing Laboratory reports dated Aug. 30, 2001 and July 29, 2006 with the Inmate Grievance Resolution Committee (the ("Sing Sing Lab Reports").) The Sing Sing Lab Reports "IGRC") complaining that the Medical Department's were ordered by Drs. Muthra and Maw, physicians in Sing treatment of his ongoing chest pain was inadequate and Sing's Medical Department. (Compl. ¶¶ 4-5, 73; Sing Sing requesting to see an outside physician. (Compl. ¶ 54; Lab Reports.)

Plaintiff's Affidavit in Support of Opposition to Defendants' Motion to Dismiss and Motion for Summary The Attica Lab Report and the Sing Sing Lab Reports Judgment dated Aug. 4, 2009 ("Pl.Aff.") Ex. A: Inmate were issued by Bio-Reference, an independent laboratory Grievance Complaint dated Oct. 5, 2004.) On November that performed the testing of samples sent by requesting 3, 2004, Fischer, the Superintendent of Sing Sing, denied DOCS physicians who treated Whitfield. (Compl.¶ 10.) Whitfield's appeal from the IGRC's adverse decision. Dr. Rush is, and was at all relevant times, the Director of (Compl. ¶¶ 8, 78; Pl. Aff. Ex. A: Superintendent decision Bio-Reference. (Compl.¶ 11.) Whitfield alleges that on appeal dated Nov. 3, 2004.) Whitfield then appealed to Bio-Reference did not identify the specific bacteria found the Central Office Review Committee (the "CORC"), in his urine or conduct antibiotic sensitivity tests after which denied his grievance on December 1, 2004. urinalyses showed the presence of bacteria on March 22, (Compl.¶ 54.) 1995, August 20, 2001, and July 29, 2006. (Compl.¶¶ 79-80.) He further claims that the Bio-Reference *2 In June 2008, Whitfield was transferred from Sing Defendants instituted a policy discouraging Bio-Reference S in g to W o o d b o u r n e C o r r e c tio n a l F a c ility employees from using costly techniques like bacteria ("Woodbourne"). (Compl.¶¶ 1, 55.) On arrival, Whitfield identification and sensitivity tests on inmate samples. received a series of medical examinations, including blood (Compl.¶ 81.) and urine tests. (Compl.¶ 55.) On July 28, 2008, Woodbourne medical staff informed Whitfield that he had On August 18, 2008, Whitfield met with Dr. F. a urinary tract infection and prescribed a seven-day Lancellotti ("Dr.Lancellotti"), a physician in the antibiotic regimen. (Compl.¶ 55.) Whitfield alleges that Woodbourne Medical Department, to inquire about his while taking the prescribed antibiotic, his "long-standing abnormal test results. (Compl.¶¶ 39, 58.) Dr. Lancellotti chest and lung pain flared up substantially." (Compl.¶ 56.) conducted additional blood and urine tests to confirm the antibiotic treatment removed all bacteria, as well as an requesting treatment "by an outside physician" and the x-ray and an EKG. (Compl.¶ 58.) Whitfield alleges that removal of "the doctors who ignored [his] urinary tract despite his requests, Dr. Lancellotti refused to conduct infection." (Compl. ¶ 61; Pl. Aff. Ex. D: Inmate Grievance other tests to determine whether the bacterial infection Complaint dated Sept. 13, 2008.) Dr. Lancellotti damaged any organs. (Compl.¶ 58.) Whitfield was responded on September 25, 2008 by stating that "there subsequently informed that the blood and urine tests were was nothing currently wrong with [Whitfield's] health." negative for the presence of bacteria. (Compl.¶ 58.) (Compl.¶ 123.) The CORC denied Whitfield's grievance on appeal on November 19, 2008. (Compl. ¶ 54; Pl. Aff. *3 Whitfield then ordered a copy of his entire DOCS Ex. D: CORC Grievance Decision dated Nov. 19, 2008.) medical file. (Compl.¶ 59.) In reviewing that file on September 8, 2008, Whitfield learned that the first On November 17, 2008, Dr. Lancellotti performed a urinalysis conducted when he entered DOCS custody at laser surgical removal of a wart on Whitfield's tricep. Downstate in June 1988 indicated the presence of bacteria (Compl.¶ 63.) Whitfield alleges that Dr. Lancellotti treated in his urine. (Compl. ¶ 59; Pl. Aff. Ex. B: Laboratory him roughly during the procedure, left a deep gash and report dated June 2, 1988 ("Downstate Lab Report")) He portions of the wart behind, and failed to prescribe pain also discovered a laboratory report from Attica dated killers. (Compl.¶ 63.) Whitfield filed grievance # September 23, 1993 reporting a "marked decrease" in WB-14427-08 (the "Retaliation Grievance") on November platelet count. Whitfield claims that report "confirm [ed] 26, 2008 alleging Dr. Lancellotti acted in retaliation for the presence of a spreading bacterial infection." (Compl. the Infection Grievance. (Compl.¶¶ 63, 125.) The CORC ¶ 73; Affidavit of John Whitfield dated Nov. 5, 2009 Ex. denied the Retaliation Grievance on January 28, 2009. B: Laboratory report dated Sept. 23, 1993 ("Attica Lab (Compl.¶ 54.)

Report").) Both lab reports were issued by Bio-Reference.

On September 12, 2008, Whitfield again met with Dr. DISCUSSION Lancellotti and requested to see a specialist. (Compl.¶ 60.)

Dr. Lancellotti denied Whitfield's request for an I. Legal Standard ultrasound or an MRI of his kidneys but ordered an x-ray. *4 "A court faced with a motion to dismiss pursuant (Compl.¶ 60.) to both Rule 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule W hitfield alleges that Defendants "[a]t all times 12(b)(6) motion is a decision on the merits and, therefore, relevant ... acted pursuant to the policies ... promulgated an exercise of jurisdiction." Magee v. Nassau Cty. Med. by [DOCS] ." (Compl.¶ 47.) Based on the laboratory Ctr., 27 F.Supp.2d 154, 158 (E.D.N.Y.1998). When reports in his medical file and Defendants' inactions, considering a motion to dismiss under either Rule 12(b)(1) Whitfield claims that Defendants "entered into an or 12(b)(6), the Court accepts the material facts alleged in agreement to ignore [his] urinary tract infection" of twenty the complaint as true and draws all reasonable inferences years duration "to bring about his death." (Compl.¶¶ in the plaintiff's favor. Jaghory v. N.Y. State Dep't of 91-94.) Whitfield also claims that in furtherance of the Educ., 131 F.3d 326, 329 (2d Cir.1997). conspiracy, employees at the Greenhaven Correctional Nonetheless, "factual allegations must be enough to Facility ("Greenhaven") removed laboratory reports from raise a right of relief above the speculative level, on the his file in October 1991 and January 1993, and that Dr. assumption that all of the allegations in the complaint are Heidi L. Fine destroyed an x-ray taken November 6, 2000. true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 (Compl.¶¶ 59, 95, 99.) He further alleges that Defendants' S.Ct. 1955, 167 L.Ed.2d 929 (2007) (requiring plaintiff to actions prevented him from discovering his true medical plead "enough fact [s] to raise a reasonable expectation condition until July 28, 2008. (Compl.¶ 106.) that discovery will reveal evidence of [his claim]"). "To survive a motion to dismiss, a complaint must contain On September 13, 2008, Whitfield filed grievance # sufficient factual matter, accepted as true, to 'state a claim WB-14349-08 (the "Infection Grievance") at Woodbourne to relief that is plausible on its face.' " Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 against DOCS for monetary and injunctive relief are (2009) (quoting Twombly, 550 U.S. at 570). A court's dismissed. "consideration [on a motion to dismiss] is limited to facts III. Statute of Limitations: Defendants Williams & Fischer stated on the face of the complaint, in documents appended to the complaint or incorporated in the A. In General complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc., *5 "In section 1983 actions, the applicable limitations 945 F.2d 40, 44 (2d Cir.1991). period is found in the 'general or residual [state] statute

[of limitations] for personal injury actions.' " Pearl v. City A pro se litigant's submissions are held to "less of Long Beach, 296 F.3d 76, 79 (2d Cir.2002) (quoting stringent standards than [those] drafted by lawyers." Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 102 L.Ed.2d 594 (1989)) (alterations in original). In New L.Ed.2d 652 (1972). Courts must "liberally construe York, the applicable statute of limitations is three years. pleadings and briefs submitted by pro se litigants, reading N.Y. C.P.L.R. § 214(5); see also Pearl, 296 F.3d at 79. such submissions 'to raise the strongest arguments they "For statute of limitations purposes, a pro se prisoner's suggest.' " Bertin v. United States, 478 F.3d 489, 491 (2d complaint is deemed filed on the date that the prisoner Cir.2007) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 turn[s] his complaint over to prison officials for transmittal (2d Cir.1994)). "These liberal pleading rules apply with to the court, not when the court actually receives it." particular stringency to complaints of civil rights Abbas v. Dixon, 480 F.3d 636, 638 & n. 1 (2d Cir.2007) violations." Phillip v. Univ. of Rochester, 316 F.2d 291, (internal quotation marks omitted). Because Whitfield 293-94 (2d Cir.2003). Nevertheless, the court need not delivered his original complaint to Woodbourne prison accept as true "conclusions of law or unwarranted authorities on September 23, 2008, his only actionable deductions of fact." First Nationwide Bank v. Gelt claims are those that accrued on or after September 23, Funding Corp., 27 F.3d 763, 771 (2d Cir.1994) (citations 2005. omitted).

"Federal law determines when a section 1983 cause of

II. Eleventh Amendment and Sovereign Immunity action accrues ... [which occurs] ... when the plaintiff knows or has reason to know of the injury which is the "Neither a state nor one of its agencies nor an official basis of his action." Pearl, 296 F.3d at 80 (internal of that agency sued in his or her official capacity is a quotation and citations omitted). "The cause of action 'person' under § 1983." Spencer v. Doe, 139 F.3d 107, accrues even though the full extent of the injury is not then 111 (2d Cir.1998); see also Will v. Mich. Dep't of State known or predictable." Wallace v. Kato, 549 U.S. 384, Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 391, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Likewise, (1989). "Therefore, state officials cannot be sued in their "[d]elay in discovering the cause of the injury does not official capacities for retrospective relief under section prevent the claim from accruing" because it is ' "discovery 1983." Huminski v. Corsones, 386 F.3d 116, 133 (2d of the injury, not discovery of the other elements of the Cir.2004) (citing Will, 491 U.S. at 71). Moreover, because claim, [that] starts the clock.' " Gonzalez v. Wright, 665 Section 1983 does not abrogate a state's sovereign F.Supp.2d 334, 348-49 (S.D.N.Y.2009) (quoting Rotella immunity, Quern v. Jordan, 440 U.S. 332, 341, 345, 99 v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d S.Ct. 1139, 59 L.Ed.2d 358 (1979), and the State of New 1047 (2000)). Moreover, "[t]he existence of a conspiracy York has not waived its immunity, claims against DOCS does not postpone the accrual of causes of action arising for both monetary and injunctive relief are barred under out of the conspirators' separate wrongs." Pinaud v. Cty. the Eleventh Amendment. Santiago v. N.Y. State Dep't of of Suffolk, 52 F.3d 1139, 1156 (2d Cir.1995).

Corr. Servs., 945 F.2d 25, 31-32 (2d Cir.1991).

Accordingly, Whitfield's § 1983 claims against the Whitfield alleges that Williams deliberately refused individual State Defendants in their official capacities and to treat his underlying urinary tract infection or prescribe an alternative antibiotic when treating his bacterial the underlying claim without first requiring the pneumonia on November 6, 2000. Whitfield claims exhaustion of administrative remedies" where "a Fischer denied his Chest Pain Grievance on November 3, claim ... [inter alia ] ... fails to state a claim upon 2004. Even if Whitfield could not have discovered the which relief can be granted." 42 U.S.C. § cause of his alleged injuries or the existence of the alleged 1997e(c)(2); see also McCoy v. Goord, 255 conspiracy until July 28, 2008, his claims against Williams F.Supp.2d 233, 252 (S.D.N.Y.2003). and Fischer both accrued well before September 23, 2005.

A. Deliberate Indifference to Serious Medical Needs

B. Tolling: Continuing Violation and Fraudulent Concealment To state a claim of inadequate medical treatment in violation of the Eighth Amendment, "a prisoner must "To assert a continuing violation for statute of allege acts or omissions sufficiently harmful to evidence limitations purposes," the plaintiff must allege (1) "an deliberate indifference to serious medical needs." Estelle ongoing policy of deliberate indifference to his or her v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d serious medical needs"; and (2) for each defendant, "some 251 (1976). The Eighth Amendment standard includes acts in furtherance of the policy within the relevant statute objective and subjective criteria: (1) "the deprivation of limitations period." Shomo v. City of N.Y., 579 F.3d alleged must be, objectively, sufficiently serious"; and (2) 176, 179, 182-84 (2d Cir.2009). To rely on the fraudulent "a prison official must have a sufficiently culpable state of concealment doctrine, a plaintiff must make mind[:] deliberate indifference to inmate health or safety." non-conclusory allegations of "a conspiracy or other Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, fraudulent wrong which precluded his possible discovery 128 L.Ed.2d 811 (1994). of the harms that he suffered." Pinaud, 52 F.3d at 1157; Under the objective element, an inmate must allege see also Shomo, 579 F.3d at 85 (plaintiff must allege "it his medical needs were "sufficiently serious," a standard would have been impossible for a reasonably prudent that "contemplates a condition of urgency, one that may person to learn about his or her cause of action" (emphasis produce death, degeneration, or extreme pain." Hathaway in original)). v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (internal

*6 W hitfield does not claim that W illiams or Fischer quotations and citations omitted). However, a prisoner is participated in his treatment during the three years not required to allege that he "experiences pain that is at preceding the filing of this lawsuit. As for fraudulent the limit of human ability to bear, nor [must he allege] that concealment, the allegations in the Amended Complaint [his] condition will degenerate into a life-threatening one." acknowledge the possibility that Whitfield could have Brock v. Wright, 315 F.3d 158, 163 (2d Cir.2003). discovered his chronic urinary tract infection before July 28, 2008. First, Whitfield complained about his health The subjective element requires the prisoner to allege problems as far back as 2004. (Compl ¶ 54.) Moreover, "something more than mere negligence" yet "something when he requested access to his medical records, he less than acts or omissions for the very purpose of causing received them promptly. (See Compl ¶¶ 56, 59.) Whitfield harm or with knowledge that harm will result." Farmer, does not claim that any Defendant refused him access to 511 U.S. at 835; Weyant v. Okst, 101 F.3d 845, 856 (2d his medical file at any time. Accordingly, the claims Cir.1996). The defendant prison official must "know [ ] of against Williams and Fischer are time-barred and and disregard [ ] an excessive risk to inmate health or dismissed. safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of IV. Failure to State a ClaimFN3 serious harm exists and he must also draw the inference." Farmer, 511 U.S. at 837. "[M]ere medical malpractice is FN3. Although Defendants also move to dismiss not tantamount to deliberate indifference," unless "the on the ground that Whitfield failed to exhaust his malpractice involves culpable recklessness, i.e., ... a administrative remedies, "the court may dismiss conscious disregard of a substantial risk of serious harm."

Not Reported in F.Supp.2d, 2010 WL 1010060 (S.D.N.Y.)

(Cite as: 2010 WL 1010060 (S.D.N.Y.))

Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) a valid claim of medical mistreatment under the Eighth (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Amendment.").

Cir.1996)). "Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a Whitfield's claims that Drs. O'Connell, Muthra and substitute for state tort law, not every lapse in prison Maw-who each ordered a single laboratory report-ignored medical care will rise to the level of a constitutional the presence of bacteria in his urine and failed to treat his violation." Smith v. Carpenter, 316 F.3d 178, 184 (2d alleged urinary tract infection are at most "isolated Cir.2003). omission[s] to act" which do "not support a claim under section 1983 absent special circumstances indicating an 1. Urinary Tract Infection evil intent, recklessness, or at least deliberate indifference

..." Avers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) *7 The gravamen of the Amended Complaint is that (per curiam ). Even if, as Whitfield alleges, basic medical numerous named and unnamed medical personnel at six procedure required these Defendants to "take appropriate different prison facilities and at Bio-Reference ignored the additional steps" to determine the nature of the bacteria five laboratory reports indicating the presence of bacteria found, this is at most negligence, not deliberate in his urine and therefore failed to diagnose or treat his indifference. See Chance, 143 F.3d at 703. alleged urinary tract infection.FN4 This Court need not

decide whether Whitfield's alleged chronic urinary tract Whitfield further alleges that Drs. Fein, Everett, infection constituted a serious medical need because the Ginsberg, Fine and Halko, and no fewer than eighteen acts and omissions Whitfield alleges fail to rise to the level registered nurses ignored the laboratory reports when of deliberate indifference. treating him between January 1990 and July 2008.

FN4. A district court has the power to sua sponte Whitfield does not allege at what point in that mostly dismiss claims against nonmoving defendants for time-barred eighteen-year period he was examined or failure to state a claim, as long as the plaintiff has treated by any of these Defendants, under what been given an opportunity to be heard. See circumstances, or for what medical conditions. Because Thomas v. Scully, 943 F.2d 259, 260 (2d Whitfield does not "identif[y] the particular events giving Cir.1991). In this case, Whitfield has been heard rise to [his] claim[s]" against these Defendants, his both in his Amended Complaint-which this Court Amended Complaint fails to give them "fair notice of what in its discretion permitted him to file after the the claim is and the grounds upon which it rests." Boykin motions under consideration were filed-and in v. KeyCorp., 521 F.3d 202, 214-15 (2d Cir.2008). his papers in opposition to those motions.

Whitfield's claims against Dr. Lancellotti concerning "[A]lthough the provision of medical care by prison treatment for his urinary tract infection also fail as "mere officials is not discretionary, the type and amount of disagreement[s] over [ ] proper treatment [which] do [ ] medical treatment is discretionary." Perez v. Hawk, 302 not create a constitutional claim." Chance v. Armstrong, F.Supp.2d 9, 21 (E.D.N.Y.2004). "[D]isagreements over 143 F.3d 698, 703 (2d Cir.1998); see also Joyner v. medications, diagnostic techniques ..., forms of treatment, Greiner, 195 F.Supp.2d 500, 505 (S.D.N.Y.2002) or the need for specialists or the timing of their (physician's refusal to order an MRI not actionable under intervention, are not adequate grounds for a Section 1983 the Eighth Amendment). "So long as the treatment given claim. These issues implicate medical judgments and, at is adequate," as Dr. Lancellotti's was here, "the fact that a worst, negligence amounting to medical malpractice, but prisoner might prefer a different treatment does not give not the Eighth Amendment." Sonds v. St. Barnabas rise to an Eighth Amendment violation." Chance, 143 Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 F.3d at 703. (S.D.N.Y.2001); see also Estelle, 429 U.S. at 106 ("[A] complaint that a physician has been negligent in *8 Finally, W hitfield fails to state a claim against the diagnosing or treating a medical condition does not state Bio-Reference Defendants. A laboratory's choice not to perform bacteria identification and antibiotic sensitivity Therefore, a § 1983 conspiracy claim "will stand only tests on blood and urine samples are medical judgments of insofar as the plaintiff can prove the sine qua non of a § the kind that cannot give rise to a constitutional claim. See 1983 action: the violation of a federal right." Singer, 63 Estelle, 429 U.S. at 107. F.3d at 119 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (one of Accordingly, this Court grants Defendants' motions to the necessary elements of a § 1983 action is "that the dismiss W hitfield's deliberate indifference to serious defendant has deprived [the plaintiff] of a right secured by medical needs claims arising from the treatment of his the 'Constitution and laws' of the United States")). Since urinary tract infection. Whitfield's deliberate indifference to serious medical needs claims fail, his claim of a conspiracy also falls. 2. Wart Removal FN5. "[A] § 1985(3) claim generally describes a conspiracy of two or more persons for the Whitfield alleges that Dr. Lancellotti inadequately purpose of depriving of another of equal performed a laser surgical removal of a wart and refused protection of the laws or equal privileges and to prescribe pain killers during post-operative recovery. immunities under the laws." Dixon v. City of Warts do not constitute a serious medical need under the Lawton, Okla., 898 F.2d 1443, 1447 (10th Eighth Amendment. See Page v. Scott, No. 07 Civ. Cir.1990). However, " § 1985(3) requires proof 287(BES)(VPC), 2009 WL 604922, at *6 (D.Nev. Feb. that a conspirator's action was motivated by a 17, 2009) (plantar warts are not a serious medical need). class-based, invidiously discriminatory animus; Moreover, the allegedly hostile and incomplete there is no such requirement under § 1983." performance of a laser surgical wart removal and refusal Dixon, 898 F.2d at 1447 (citing Griffin v. to prescribe pain medication thereafter does not constitute Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, deliberate indifference. See White v. Corrs. Med. Servs., 29 L.Ed.2d 338 (1971)).

No. 06 Civ. 680(SNL), 2006 WL 1391298, at *2 (E.D.Mo. May 19, 2006) (prisoner's allegations of "failure C. Retaliation to remove [his] warts entirely" and resulting pain "may be cognizable as a negligence or medical malpractice claim "[T]o survive a motion to dismiss a complaint, a under state law, [but] they are insufficient to sustain a plaintiff asserting First Amendment retaliation claims must constitutional violation"). Not surprisingly, this Court allege (1) that the speech or conduct at issue was could not find any decisions by courts in the Second protected, (2) that the defendant took adverse action Circuit concerning deliberate indifference claims as against the plaintiff, and (3) that there was a causal applied to non-venereal warts. Accordingly, this Court connection between the protected speech and the adverse dismisses Whitfield's deliberate indifference to serious action." Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) medical needs claim concerning the wart removal with (internal quotation marks and citation omitted). It is well prejudice pursuant to Rule 12(b) (6). established that the filing of prison grievances is B. Conspiracy constitutionally protected conduct. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996) ("retaliation To state a claim for "a § 1983 conspiracy, a plaintiff against a prisoner for pursuing a grievance violates the must [allege]:(1) an agreement between two or more state right to petition government for the redress of grievances actors ... (2) to act in concert to inflict an unconstitutional guaranteed by the First and Fourteenth Amendments"). injury; and (3) an overt act done in furtherance of that goal Nonetheless, "[c]courts properly approach prisoner causing damages." Pangburn v. Culbertson, 200 F.3d 65, retaliation claims with skepticism and particular care, 72 (2d Cir.1999).FN5 Because "Section 1983 is only a grant because virtually any adverse action taken against a of a right of action [,] the substantive right giving rise to prisoner by a prison official-even those otherwise not the action must come from another source." Singer v. rising to the level of a constitutional violation-can be Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995). characterized as a constitutionally proscribed retaliatory act." Davis, 320 F.3d at 352; see also Williams v. Fisher, trial, the state claims should be dismissed as well.").

No. 02 Civ. 4558(LMM), 2003 WL 22170610, at *10 CONCLUSION (S.D.N.Y. Sept.18, 2003) ("because of the ease of fabricating a claim of retaliation, the Second Circuit For the foregoing reasons, the State Defendants' and requires the court to handle such claims with care"). the Bio-Reference Defendants' motions to dismiss the

*9 "[I]n the prison context [the Second Circuit has] Amended Complaint are granted. The Clerk of the Court defined 'adverse action' objectively, as retaliatory conduct shall terminate all pending motions and mark this case as 'that would deter a similarly situated individual of closed. ordinary firmness from exercising constitutional rights.' " SO ORDERED.

Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (emphasis in original and citation omitted). In considering S.D.N.Y.,2010. a prisoner retaliation claim, courts must bear in mind that "prisoners may be required to tolerate more ... than Whitfield v. O'Connell average citizens, before a [retaliatory] action taken against Not Reported in F.Supp.2d, 2010 WL 1010060 them is considered adverse." Davis, 320 F.3d at 353 (S.D.N.Y.) (internal quotation marks omitted); Young v. Strack, No. END OF DOCUMENT 05 Civ. 9764(WHP), 2007 WL 1575256, at *7 (S.D.N.Y. May 29, 2007).

Although courts in this district have recognized that a prison physician's retaliatory treatment may well constitute "adverse action," these cases involve the revocation of "necessary medical rehabilitative treatment," Williams, 2003 W L 22170610, at *11, or the denial of medical treatment for injuries later requiring surgery, Burton v. Lynch, --- F.Supp.2d ----, No. 08 Civ. 8791(LBS), 2009 WL 3286020, at *9, 11 (S.D.N.Y. Oct. 13, 2009). That Dr. Lancellotti may have performed a laser wart removal without the most pleasant of bedside manners, or that he may have left part of the wart behind and declined to prescribe pain killers falls far short of "adverse action" which would chill the speech of a similarly situated individual of ordinary firmness. Dr. Lancellotti's alleged actions are "simply de minimis and therefore outside the ambit of constitutional protection." Davis, 320 F.3d at 353. Accordingly, this Court dismisses Whitfield's retaliation claim concerning Dr. Lancellotti's laser removal of a wart from Plaintiff's arm.

V. State Law Claims

Having dismissed all of Whitfield's federal claims, this Court declines to exercise supplemental jurisdiction over his pendant state law claims. See 28 U.S.C. § 1367; Marcus v. AT & T Corp., 138 F.3d 46, 57 (2d Cir.1998) ("In general, where the federal claims are dismissed before claimed that he never received defendants' motion to dismiss.

Only the Westlaw citation is currently available. By Judge Rakoff's Order dated April 14, 1998, this United States District Court, S.D. New York. case was referred to me for general pretrial purposes and for a Report and Recommendation on any dispositive Theodore HUDSON, Plaintiff, motion. Presently pending is defendants' renewed motion v. to dismiss. Plaintiff filed a reply on July 6, 1998. For the Christopher ARTUZ, Warden Philip Coombe, reasons discussed below, plaintiff's complaint is dismissed Commissioner Sergeant Ambrosino Doctor Manion without prejudice, and plaintiff is granted leave to replead Defendants. within thirty (30) days of the date of the entry of this No. 95 CIV. 4768(JSR). order.

Nov. 30, 1998. FACTS Mr. Theodore Hudson, Great Meadow Correctional Facility, Comstock. Plaintiff alleges that he was assaulted by four inmates in the Green Haven Correctional Facility mess hall on Alfred A. Delicata, Esq., Assistant Attorney General, New March 14, 1995. (Complaint at 4.) He alleges that he was York. struck with a pipe and a fork while in the "pop room" between 6:00 p.m. and 6:30 p.m. (Complaint at 4--5.) MEMORANDUM AND ORDER Plaintiff contends that the attack left him with 11 stitches in his head, chronic headaches, nightmares, and pain in his BUCHWALD, Magistrate J. arm, shoulder, and back. (Id.) Plaintiff also states that

*1 Plaintiff Theodore Hudson filed this pro se action Sergeant Ambrosino "failed to secure [the] area and pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's separate" him from his attackers. (Reply at 5.) Plaintiff's complaint alleges defendants violated his constitutional claim against Warden Artuz is that he "fail [sic] to qualify rights while he was an inmate at Green Haven as warden." (Complaint at 4.) Plaintiff names Correctional Facility.FN1 Plaintiff's complaint was Commissioner Coombes as a defendant, alleging Coombes dismissed sua sponte by Judge Thomas P. Griesa on June "fail [sic] to appoint a qualified warden over security." 26, 1995 pursuant to 28 U.S.C. § 1915(d). On September (Amended Complaint at 5.) Plaintiff further alleges that 26, 1995, the Second Circuit Court of Appeals vacated the Dr. Manion refused to give him pain medication. judgment and remanded the case to the district court for (Complaint at 5.) Plaintiff seeks to "prevent violent further proceedings. crimes" and demands $6,000,000 in damages. (Amended

FN1. Plaintiff is presently incarcerated at Complaint at 5.)

Sullivan Correctional Facility. Defendants moved to dismiss the complaint, arguing that: (1) the Eleventh Amendment bars suit against state The case was reassigned to Judge Barbara S. Jones on defendants for money damages; (2) the plaintiff's January 31, 1996. Defendants moved to dismiss the allegations fail to state a claim for a constitutional complaint pursuant to Fed.R.Civ.P. 12(c) on November violation; (3) the defendants are qualifiedly immune from 25, 1996. Thereafter, the case was reassigned to Judge Jed damages; and (4) plaintiff must exhaust his administrative S. Rakoff on February 26, 1997. On February 26, 1998, remedies before bringing this suit.

Judge Rakoff granted defendants' motion to dismiss, but vacated the judgment on April 10, 1998 in response to DISCUSSION plaintiff's motion for reconsideration in which plaintiff A complaint that fails to comply with these pleading I find that plaintiff's complaint runs afoul of Rules 8 rules "presents far too heavy a burden in terms of and 10 of the Federal Rules of Civil Procedure and defendants' duty to shape a comprehensive defense and dismiss the complaint without prejudice and with leave to provides no meaningful basis for the Court to assess the amend. Federal Rule 8 requires that a complaint contain "a sufficiency of" a plaintiff's claims. Gonzales v. Wing, 167 short and plain statement of the claim showing that the F.R.D. 352, 355 (N.D.N.Y.1996). It may therefore be pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The dismissed by the court. Id.; see also Salahuddin v. Cuomo, purpose of this Rule "is to give fair notice of the claim 861 F.2d at 42 ("When a complaint does not comply with being asserted so as to permit the adverse party the the requirement that it be short and plain, the court has the opportunity to file a responsive answer [and] prepare an power to, on its own initiative, ... dismiss the complaint"). adequate defense." Powell v. Marine Midland Bank, 162 Dismissal, however, is "usually reserved for those cases in F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. which the complaint is so confused, ambiguous, vague, or Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see otherwise unintelligible that its true substance, if any, is Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) well disguised." Id. In those cases in which the court (stating that the "principal function of pleadings under the dismisses a pro se complaint for failure to comply with Federal Rules is to give the adverse party fair notice of the Rule 8, it should give the plaintiff leave to amend when claim asserted so as to enable him to answer and prepare the complaint states a claim that is on its face for trial"). non-frivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d *2 Rule 10 of the Federal Rules of Civil Procedure Cir.1995). requires, inter alia, that the allegations in a plaintiff's complaint be made in numbered paragraphs, each of which In determining whether a non-frivolous claim is stated, should recite, as far as practicable, only a single set of the complaint's allegations are taken as true, and the circumstances. Moore's Federal Practice, Vol. 2A, ¶ "complaint should not be dismissed for failure to state a 10.03 (1996). Rule 10 also requires that each claim upon claim unless it appears beyond doubt that the plaintiff can which plaintiff seeks relief be founded upon a separate prove no set of facts in support of his claim which would transaction or occurrence. Id.FN2

The purpose of Rule 10 entitle him to relief." Conley v.. Gibson, 355 U.S. 41, is to "provide an easy mode of identification for referring 45--46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint to a particular paragraph in a prior pleading." Sandler v. of a pro se litigant is to be liberally construed in his favor Capanna, 92 Civ. 4838, 1992 WL 392597, *3 (E.D.Pa. when determining whether he has stated a meritorious Dec.17, 1992) (citing 5 C. Wright & A. Miller, Federal claim. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. Practice and Procedure, § 1323 at 735 (1990)). 594, 30 L.Ed.2d 652 (1972). Even if it is difficult to determine the actual substance of the plaintiff's complaint, FN2. Rule 10 states: outright dismissal without leave to amend the complaint is generally disfavored as an abuse of discretion. See (b) Paragraphs; Separate Statements. All Salahuddin, 861 F.2d at 42--42; see also Doe v. City of averments of claim or defense shall be made in New York, No. 97 Civ. 420, 1997 WL 124214, at *2 numbered paragraphs, the contents of each of (E.D.N.Y. Mar.12, 1997). which shall be limited as far as practicable to a statement of a single set of circumstances; Here, plaintiff's pro se complaint fails to satisfy the and a paragraph may be referred to by number requirements of Federal Rules 8 and 10. The complaint is in all succeeding pleadings. Each claim often illegible and largely incomprehensible, scattering founded upon a separate transaction or what appear to be allegations specific to plaintiff within a occurrence and each defense other than denials forest of headnotes copied from prior opinions. shall be stated in a separate count or defense Defendants have answered with a boilerplate brief, which whenever a separation facilitates the clear is perhaps all a defendant can do when faced with such a presentation of the matters set forth. complaint. The Court is left with an insurmountable burden in attempting to make a reasoned ruling on such muddled pleadings.

For the reasons set forth above, plaintiff's complaint *3 Although plaintiff's complaint is substantially is dismissed without prejudice, and plaintiff is granted incomprehensible, it appears to plead at least some claims leave to replead within thirty (30) days of the date of the that cannot be termed frivolous on their face. For example, entry of this Order. plaintiff clearly alleges that inmates assaulted him and that IT IS SO ORDERED.

Dr. Manion refused to provide him medical attention. He also appears to assert that Sergeant Ambrosino failed to S.D.N.Y.,1998. protect him from the attack or take steps to prevent future attacks. (Plaintiff's Reply at 5). It is well established that Hudson v. Artuz an inmate's constitutional rights are violated when prison Not Reported in F.Supp.2d, 1998 WL 832708 (S.D.N.Y.) officials act with deliberate indifference to his safety or END OF DOCUMENT with intent to cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d Cir.1991). It is similarly well established that an inmate's constitutional rights are violated when a prison doctor denies his request for medical care with deliberate indifference to the inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v. Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although plaintiff provides few facts to support his allegations, I disagree with defendants' assertion that outright dismissal is appropriate because it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Defendant's Memorandum at 5 (quoting Conley v. Gibson, 355 U.S. 41, 45--46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Because plaintiff's complaint does not comply with Rules 8 and 10, it is hereby dismissed without prejudice, and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this Order. In drafting his second amended complaint, plaintiff is directed to number each paragraph and order the paragraphs chronologically, so that each incident in which he alleges a constitutional violation is described in the order that it occurred. Plaintiff is also directed to specifically describe the actions of each defendant that caused plaintiff harm, and to do so in separate paragraphs for each defendant. Plaintiff's complaint shall contain the facts specific to the incidents plaintiff alleges occurred, and not any facts relating to any case that has been decided previously by a court of law. Plaintiff's complaint shall also contain a clear statement of the relief he seeks in addition to monetary damages.

CONCLUSION

should the Court obtain, at a later time, reason to believe that he had acquired at least three such "strikes" before he filed this action. In addition, Plaintiff should note that, Only the Westlaw citation is currently available. although his motion to proceed in forma pauperis has United States District Court, been granted, he still will be required to pay other fees that he might incur in this action, including copying and/or

N.D. New York. witness fees.

John T. PICKERING--GEORGE, a/k/a John R. Daley, II. PLAINTIFF'S M OTION FOR VARIOUS OTHER

Jr., Plaintiff, RELIEF v. Andrew M. CUOMO, Attorney General of New York Approximately three months after filing his Complaint State; Andrea Oser, Deputy Solicitor General of New in this action, Plaintiff filed an 26--page document York State; District Attornies, a/k/a District Attorney described as a "motion." (Dkt. No. 3.) Included within that

Offices; and Prosecuting Attornies, Defendants. filing is another motion to proceed in forma pauperis.

No. 1:10--CV--0771 (GTS/DEP). (Dkt. No. 3, Attach.1.) Like Plaintiff's original filing, this motion is indecipherable. (Compare Dkt. No. 1 with Dkt. Dec. 8, 2010. No. 3.) For example, the first page of the document states John T. Pickering--George, Bronx, NY, pro se. as follows:

RE: PETITIONER "MOTION" FOR DOCKET

DECISION and ORDER NUMBER ALSO STATUS AND MOTION FOR ATTORNEY FEE'S, COSTS FOR FAILURE TO on. GLENN T. SUDDABY, District Judge. RESPOND IN ACCORDANCE WITH, 5 U.S.C.S. §

*1 Currently before the Court in this pro se civil 552(a)(4)(E) & (F) (FOIA), FREEDOM OF rights action, filed by John T. Pickering--George I N F O R M A T I O N A C T , A N D , " E N C L O S E D ("Plaintiff"), is Plaintiff's motion to proceed in forma J U R I S D I C T I O N S " , O F [ A ] , S U B P O E N A , pauperis and motion for various other relief. (Dkt.Nos.2, CONTEMPT, MANDAMUS, MANDATORY, GENERAL 3.) For the reasons discussed below, Plaintiff's motion to O RD ER, M AND ATED PROCESS, G ENERAL proceed in forma pauperis is granted, and his motion for PROVISIONS GOVERNING DUTIES, OBTAINING various other relief is denied. In addition, Plaintiff's DOCUMENTS, FORMS, AND APPLICATIONS Complaint is sua sponte dismissed for failure to state a IMMUNITIES CLAUSE FROM PROSECUTION OR claim upon which relief can be granted and frivolousness, PUNISHMENT, RELEASE--DISMISSAL DOCUMENT pursuant to 28 U.S.C. §§ 1915(e)(2)(B), unless, within FORM , EXEM PT FRO M INVESTIG ATIO NS, thirty (30) days of the date of this Decision and Order, he INDICTMENT, PROSECUTIONS, PUNISHMENT, files an Amended Complaint that complies with the terms PENALTY OR FORFEITURE, SUITS OR OTHER of this Decision and Order. PROCEEDING BEFORE ANY JUDGE OR JUSTICE,

I. PLAINTIFF'S M OTION TO PROCEED IN COURT OR OTHER TRIBUNAL, CONDUCTING AND FORMA PAUPERIS INQUIRY FOR LEGAL PROCEEDING RELATING TO THE ACTS OF SAID "AUTHORITIES" WRITTEN

After carefully reviewing Plaintiff's papers, the Court ORDER IN THE NAME OF THE CITY, COUNTIES finds that he qualifies for in forma pauperis status. (Dkt. STATE OF NEW YORK.

No. 2.) Plaintiff's motion to proceed in forma pauperis in this action is, therefore, granted. However, the Court (Dkt. No. 3 at 1.) The second page lists the attorney reserves the right to conduct an analysis of any "strikes" whom the motion apparently concerns or perhaps to whom acquired by Plaintiff, for purposes of 28 U.S.C. § 1915(g), it has been sent. (Id. at 2.) For the next 18 pages, Plaintiff motion was served before the Court determined the lists-as purported relevant authorities-various legal sufficiency of his Complaint and thus before Defendants terms and phrases (as well as statutes, rules, and cases). were served. As a result, there can be no default in (Id. at 3--21.) On the next page, labeled page "3," Plaintiff answering or defending. As a result, to the extent that begins what appears to be his legal argument in the form Plaintiff's motion is one for default judgment, it is denied of paragraphs, and continues to do so until the end of the on this alternative ground. document. (Id. at 22--25.) However, the contents of the paragraphs still mostly consist of legal citations, lack any FN2. The Court notes that the first page of allegations of fact, and simply make no sense. Plaintiff's motion refers to a failure to respond and the twenty-first page of Plaintiff's motion *2 For all of these reasons, Plaintiff's "motion" is refers to a default judgment. denied based on its non-compliance with the requirements of Fed.R.Civ.P. 7(b) (1)(B),(C) (which requires the III. SUA SPONTE REVIEW OF PLAINTIFF'S movant to "state with particularity the grounds for seeking COM PLAINT the order" and "state the relief sought") and Local Rule 7.1(a)(1),(2) of the Local Rules of Practice for this Court Having reviewed Plaintiff's motion to proceed in (which, depending on the relief sought, requires the forma pauperis, the Court must now consider the movant to accompany the motion with a memorandum of sufficiency of the allegations set forth in his Complaint in law and affidavit). See Link v. Taylor, 07--CV--338, 2009 light of 28 U.S.C. § 1915. This is because Section WL 127660, at *3 (N.D.Ind. Jan. 20, 2009) (denying pro 1915(e)(2)(B) directs that, when a plaintiff seeks to se plaintiff's motion to compel response to a production proceed in forma pauperis, "the court shall dismiss the request where the request was incomprehensible); Wright case at any time if the court determines that ... the action v. Goord, 04--CV--6003, 2008 W L 2788287, at *3 ... (i) is frivolous or malicious; (ii) fails to state a claim on (W.D.N.Y. July 15, 2008) (denying pro se prisoner's which relief may be granted; or (iii) seeks monetary relief motion to compel based on its incomprehensibility).FN1 against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

FN1. The Court notes that Plaintiff's recently A. Governing Legal Standards filed motion to proceed in forma pauperis (Dkt. No. 3, Attach.1) is duplicative of his original It has long been understood that a dismissal for failure motion accompanying his Complaint, which is to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6), may be granted herein. Plaintiff is advised that, because based on either or both of two grounds: (1) a challenge to the Court is granting his motion to proceed in the "sufficiency of the pleading" under Fed.R.Civ.P. forma pauperis, which was filed on July 8, 2010, 8(a)(2); or (2) a challenge to the legal cognizability of the it is not necessary that he file any further motions claim. Jackson v. Onondaga County, 549 F.Supp.2d 204, seeking that relief in this action. Plaintiff's 211, nn. 15--16 (N.D.N.Y.2008) (McAvoy, J. adopting second motion to proceed in forma pauperis Report--Recommendation on de novo review) [citations (Dkt. No. 3, Attach.1) will therefore be denied as omitted]. duplicative of Dkt. No. 2 and as moot. With regard to the first ground, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain a "short and plain Moreover, to the extent that Plaintiff's motion can statement of the claim showing that the pleader is entitled somehow be construed as a request for entry of a default to relief." Fed.R.Civ.P. 8(a)(2) [emphasis added]. By judgment with regard to his original filing, FN2 Plaintiff is requiring this "showing," Fed.R.Civ.P. 8(a)(2) requires advised that Fed.R.Civ.P. 55 provides for entry of default that the pleading contain a short and plain statement that judgment "[w]hen a party against whom a judgment for "give[s] the defendant fair notice of what the plaintiff's affirmative relief is sought has failed to plead or otherwise claim is and the grounds upon which it rests." Jackson, defend...." Fed. Rule Civ. Proc. 55(a). Here, Plaintiff's 549 F.Supp.2d at 212, n. 17 [citations omitted]. The main purpose of this rule is to "facilitate a proper decision on the merits." Id. at 212, n. 18 [citations omitted].FN3 raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the FN3. See also Simmons v. Abruzzo, 49 F.3d 83, allegations in the complaint are true. Id. at 555 [citations 86 (2d Cir.1995) ( "Fair notice is that which will omitted].FN4 enable the adverse party to answer and prepare for trial, allow the application of res judicata, and FN4. See also Ashcroft v. Iqbal, 129 S.Ct. 1937 identify the nature of the case so it may be (2009). assigned the proper form of trial.") [citation omitted]; Salahuddin v. Cuomo, 861 F .2d 40, 42 This clarified plausibility standard governs all claims, (2d Cir.1988) ("[T]he principal function of including claims brought by pro se litigants (although the pleadings under the Federal Rules is to give the plausibility of those claims is to be assessed generously, in adverse party fair notice of the claim asserted so light of the special solicitude normally afforded pro se as to enable him to answer and prepare for litigants).FN5 It should be emphasized the Fed.R.Civ.P. 8's trial.") [citations omitted]. plausibility standard, explained in Twombly, was in no way retracted or diminished by the Supreme Court's *3 The Supreme Court has long characterized this decision (two weeks later) in Erickson v. Pardus, in which pleading requirement under Fed.R.Civ.P. 8(a)(2) as (when reviewing a pro se pleading) the Court stated, "simplified" and "liberal," and has repeatedly rejected "Specific facts are not necessary" to successfully state a judicially established pleading requirements that exceed claim under Fed.R.Civ.P. 8(a) (2). Erickson v. Pardus, this liberal requirement. Id. at 212, n. 20 [citations 127 S.Ct. 2197, 2200 (2007) [citation omitted; emphasis omitted]. However, even this liberal notice pleading added]. That statement was merely an abbreviation of the standard "has its limits." Id. at 212, n. 21 [citations often-repeated point of law-first offered in Conley, and omitted]. As a result, numerous Supreme Court and repeated in Twombly-that a pleading need not "set out in Second Circuit decisions exist holding that a pleading has detail the facts upon which [the claim is based]" in order failed to meet this liberal notice pleading standard. Id. at to successfully state a claim. Twombly, 550 U.S. at 556, n. 213, n. 22 [citations omitted]. 3 (citing Conley, 355 U.S. at 47) [emphasis added]. The statement did not mean that all pleadings may achieve the Most notably, in Bell Atlantic Corp. v. Twombly, the requirement of "fair notice" without ever alleging any Supreme Court reversed an appellate decision holding that facts whatsoever. Clearly, there must still be enough fact a complaint had stated an actionable antitrust claim under set out (however set out, whether in detail or in a 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. generalized fashion) to raise a right to relief above the 544 (2007). In doing so, the Court "retire[d]" the famous speculative level to a plausible level. FN6 Indeed, the statement by the Court in Conley v. Gibson, 355 U.S. 41, Supreme Court recently reaffirmed this pleading 45--46 (1957), that "a complaint should not be dismissed requirement, as well as the continued vitality of Twombly for failure to state a claim unless it appears beyond doubt in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), noting that that the plaintiff can prove no set of facts in support of his while the Twombly "plausibility standard is not akin to a claim which would entitle him to relief." Twombly, 550 'probability requirement,' ... it asks for more than a sheer U.S. at 560--563. Rather than turning on the conceivability possibility that a defendant has acted unlawfully." Id. at of an actionable claim, the Court clarified, the "fair 1949 (quoting Twombly ). W hat remains clear after Iqbal notice" standard turns on the plausibility of an actionable is that "legal conclusions can provide the framework of a claim. Id. at 555--572. The Court explained that, while complaint," but when unsupported by factual allegations this does not mean that a pleading need "set out in detail they fail to meet the minimal requirements of Fed.R.Civ.P. the facts upon which [the claim is based]," it does mean 8. Id. at 1950. that the pleading must contain at least "some factual allegation [s]." Id. at 555 [citations omitted]. More FN5. Iqbal, 129 S.Ct. at 1953 ("Our decision in specifically, the "[f]actual allegations must be enough to Twombly expounded the pleading standard for all civil action, ... and it applies to antitrust and 760751, at *9 (S.D.N.Y. June 13, 2000). The discrimination suits alike."); see, e.g., Jacobs v. important thing is that, in Erickson, even the pro Mostow, 271 F. App'x 85, 87 (2d Cir. Mar. 27, se plaintiff was required to allege some sort of 2008 (in pro se action, stating "[t]o survive a fact. motion to dismiss, a complaint must plead 'enough facts to state a claim to relief that is *4 Finally, in reviewing a complaint for dismissal plausible on its face' ") [citation omitted] under Fed.R.Civ.P. 12(b)(6), the Court must accept the (summary order, cited in accordance with Rule material facts alleged in the complaint as true and construe 32.1[c][1] of the Local Rules of the Second all reasonable inferences in the plaintiff's favor. This Circuit); Boykin v. KeyCorp., 521 F.3d 202, standard is applied with even greater force where the 215--16 (2d Cir.2008) (finding that borrower's plaintiff alleges civil rights violations and/or where the pro se compliant sufficiently presented a complaint is submitted pro se. However, while the special "plausible claim of disparate treatment," under leniency afforded to pro se civil rights litigants somewhat Fair Housing Act, to give lenders fair notice of loosens the procedural rules governing the form of her discrimination claim based on lenders' denial pleadings (as the Second Circuit has observed),FN7 it does of her home equity loan application) [emphasis not completely relieve a pro se plaintiff of the duty to added]. satisfy the pleading standards in Fed.R.Civ.P. 8, 10 and 12.FN8 Rather, as both the Supreme Court and Second FN6. For example, in Erickson, the Supreme Circuit have repeatedly recognized, the requirements set Court held that, because the plaintiff-prisoner forth in Fed.R.Civ.P. 8, 10, and 12 are procedural rules had alleged that, during the relevant time period, that even pro se civil rights plaintiffs must follow.FN9

he suffered from hepatitis C, he had alleged facts Stated more plainly, when a plaintiff is proceeding pro se, plausibly suggesting that he possessed a "all normal rules of pleading are not absolutely sufficiently serious medical need for purposes of suspended." Jackson, 549 F.Supp.2d at 214, n. 28 an Eighth Amendment claim of inadequate [citations omitted]. medical care. Erickson, 127 S.Ct. at 2199--2200. Expressed differently, the Court FN7. Sealed Plaintif v. Sealed Defendant # 1, held that such a plaintiff need not also allege that 537 F.3d 185, 191 (2d Cir.2008); see also he suffered an independent and "substantial Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983). injury" as a result of the termination of his hepatitis C medication (a requirement that had FN8. See Prezzi v. Schelter, 469 F.2d 691, 692 been imposed by the district court). This point of (2d Cir.1972), cert. denied, 411 U.S. 935, 93 law is hardly a novel one, which is presumably S.Ct. 1911 (1973) (finding that extra liberal why the Erickson decision was relatively brief. pleading standard set forth in Haines v. Kerner, Prior to the Supreme Court's decision, numerous 404 U.S. 519, 92 S.Ct. 594 [1972], did not save decisions, including from district courts within pro se complaint from dismissal for failing to the Second Circuit alone, had found that comply with Fed.R.Civ.P. 8); accord, Shoemaker suffering from hepatitis C constitutes a serious v. State of Cal., 101 F.3d 108 (2d Cir.1996) medical need for purposes of the Eighth (citing Prezzi, 469 F.2d at 692) [unpublished Amendment. See, e.g., Rose v. Alvees, disposition cited only to acknowledge the 01--CV--0648, 2004 WL 2026481, at *6 continued precedential effect of Prezzi within the (W.D.N.Y. Sept. 9, 2004); Johnson v. Wright, Second Circuit]; accord, Praseuth v. Werbe, 99 234 F.Supp.2d 352, 360 (S.D.N.Y.2002); F.3d 402 (2d Cir.1995); accord Wachtler v. McKenna v. Wright, 01--CV--6571, 2002 WL Herkimer County, 35 F.3d 77, 82 (2d Cir.1994). 338375, at *6 (S.D.N.Y. March 4, 2002);

Carbonell v. Goord, 99--CV--3208, 2000 WL FN9. See McNeil v. U.S., 508 U.S. 106, 113 (1993) ("While we have insisted that the and phrases with sporadic references to the Federal Rules pleadings prepared by prisoners who do not have of Civil Procedure, followed by a listing of numerous access to counsel be liberally construed ... we federal constitutional provisions, federal statutes, New have never suggested that procedural rules in York State statutes, and rules of appellate procedure, ordinary civil litigation should be interpreted so including rules of the United States Supreme Court. The as to excuse mistakes by those who proceed last three pages of the Complaint consist of unnumbered without counsel"); Faretta v. California, 422 paragraphs largely containing, once again, listings of legal U.S. 806, 834, n. 46 (1975) ("The right of authorities with some apparent quotation therefrom. self-representation is not a license ... not to Plaintiff's "Statement of Claim" states, comply with relevant rules of procedural and substantive law."); Triestman v. Fed. Bureau of [N]OW HERE COMES PETITIONER PRO SE "WITH Prisons, 470 F.3d 471, 477 (2d Cir.2006) MOTION", PURSUANT TO U.S. FEDERAL CONST. ("[P]ro se status does not exempt a party from AMENDTS. 1, 4, 5, 14.1,5 DUE PROCESS, compliance with relevant rules of procedural and GARUNTEED [sic] DUE PROCESS, FRCP. RULE. 1 substantive law.") [citation omitted]; accord, ..., Traguth, 710 F.2d at 95; cf. Phillips v. Girdich, *[T ]H E, M OTION IN REGARD S T O [A] 408 F.3d 124, 128, 130 (2d Cir.2005) S U B P O E N A , C O N T E M P T , M A N D A T O R Y (acknowledging that pro se plaintiff's complaint MANDAMUS," GENERAL ORDER, MANDATED could be dismissed for failing to comply with PROCESS GENERAL PROVISIONS GOVERNING Rules 8 and 10 if his mistakes either "undermine DUTIES IN RESPONDING TO SUBPOENA FORM the purpose of notice pleading [ ]or prejudice the A N D I N J U N C T I O N P R O C E S S F O R adverse party"). DISBURSEMENT OF "DOCUMENTS, FORMS, AND

APPLICATIONS--IMMUNITIES CLAUSE FROM

B. Summary of Plaintiff's Complaint P R O S E C U T I O N O R P U N I S H M E N T , R E LE A S E -- D IS M IS S A L D O C U M E N T F O R M ,

On July 8, 2010, Plaintiff filed a handwritten EXEMPT FROM INVESTIGATIONS, INDICTMENT, Complaint, labeled "Complaint Mandamus--General PROSECUTIONS, PUNISHMENT, PENALTY OR Form" consisting of 28 pages, plus three handwritten FORFEITURE, SUITS OR OTHER PROCEEDING attachments, for a total of 154 pages. The first attachment BEFORE ANY JUDGE OR JUSTICE, COURT OR to Plaintiff's Complaint is identified as "New York State OTHER TRIBUNAL, CONDUCTING ANY INQUIRY Arraignment Charges and Motions" (see Dkt. No. 1, FOR LEGAL PROCEEDING RELATING TO ACTS OF Attach. 1), and the second attachment is identified as SAID "AUTHORITIES" WRITTEN ORDER IN THE "Table of Authorities, Federal Rules of Criminal NAME OF THE CITY, COUNTIES, STATE OF NEW Procedure Amended *Mandated Process of Criminal YORK.

Federal Rules Digest* " (see Dkt. No. 1, Attach. 2). The third attachment to Plaintiff's Complaint is addressed to *5 (Dkt. No. 1, at 25 [emphasis in original].) As relief the Court Clerk, stating: for his asserted injuries, the Complaint demands "to have RE: RELEASE--DISMISSAL OF ANY CONVICTION, all documents released to petitioner in accordance with VINDICTIVE PROSECUTION FOR CIVIL RIGHTS applications, process, registration requirements of obtaing ACTIONS, "MOTIONS" FOR DISMISSAL OF [sic], immunities from prosecution or punishment INDICTMENTS BOTH FEDERAL AND STATE release-dismissal document form...." (Id. at 27.) In ATTORNEY GENERAL, AND DISTRICT AND addition, Plaintiff seeks $75,000 plus attorney's fees, and PROSECUTING ATTORNEYS PURSUANT TO, U.S. costs "for failure to respond within (60) sixty days, FRCP. FEDERAL CONST. AMENDTS . 1, 5, 8, 14.1,5 Rule. 55(a)(e), 28 U.S.C.S or within (90) days, (F.O.I.A)

Freedom of Information Act, 5 U.S.C.S § 552(a)(4) (E) & (Dkt. No. 1, Attach.3) [emphasis in original]. The first (F)." (Id.) Plaintiff's lengthy attachments to the Complaint 21 pages of the Complaint consist of a list of legal terms are similar in form, containing lists of hundreds of exercise of subject matter jurisdiction and a complaint that statutory provisions and rules and unnumbered paragraphs falls too far short of this requirement may properly be apparently quoting various legal authorities; these dismissed." Rahl v. New York Telephone Co., attachments also include citation to and quotation of case 09--CV--1165, 2010 WL 3338832, at * (N.D.N.Y. Aug. law. But for reference to four lawsuits previously filed by 24, 2010) (Sharpe, J.) (dismissing pro se complaint for Plaintiff in other jurisdictions, all of which have been failure to plead facts sufficient to survive a Rule 12(b)(6) dismissed, the Complaint and attachments are devoid of motion). Though "usually reserved for those cases in any allegations of fact, even when construed with the which the complaint is so confused, ambiguous, vague, or utmost of special leniency.FN10 otherwise unintelligible ...," the Court retains the power to dismiss a complaint that is "prolix" or has the "surfeit of FN10. Plaintiff references the following four detail," notwithstanding the deference given to pro se cases: (1) Pickering--George v. City of New York, litigants. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d 08--CV--5112, filed in the Southern District of Cir.1988).

New York on June 4, 2008, and dismissed as This is one of those cases. While prolix and excessive frivolous on August 25, 2008, with an order in its citation and quotation of legal authorities, Plaintiff's enjoining Plaintiff from filing further actions in Complaint is so lacking in factual allegations that the that court without prior permission; (2) Daley v. Court simply is unable to discern any plausible claim Commissioner of OMH, 09--CV--0146, filed in within the Court's jurisdiction. Indeed, not only is the the Northern District of New York on February Court at a complete loss as to the basis for Plaintiff's 5, 2009, and dismissed on April 28, 2009, with Complaint, but it is unable to decipher what relief Plaintiff Plaintiff's appeal to the Second Circuit dismissed seeks. To the extent that Plaintiff's attempted claims arise on September 24, 2009, as lacking an arguable out of Defendants' criminal prosecution of him, three basis in law or fact; (3) Pickering--George v. points bear making.

Court Report Records, 10--CV--0313, filed in the District of Delaware on April 15, 2010, and First, Plaintiff appears to have previously asserted dismissed on July 1, 2010, for failure comply similar, if not identical, claims in other courts, which have with an order of the court; and (4) dismissed those claims with prejudice, raising possible Pickering--George v. Court Reporter Records, issues of collateral estoppel, res judicata, and/or statute of 10--CV--5576, filed in the Southern District of limitations. (Some of those cases are described below, in New York on July 22, 2010, and dismissed by Part III.D. of this Decision and Order.) Second, some or order of July 22, 2010, wherein the court denied all of the Defendants against whom Plaintiff is attempting Plaintiff's motion for in forma pauperis status for to assert claims appear to be protected from liability as a the purpose of an appeal, finding any appeal matter of law by the doctrine of absolute immunity, due to would not be taken in good faith. As will be their status as prosecutors. Third, in the event that the discussed in greater detail below in this Decision criminal charges brought against Plaintiff are still pending, and Order, Plaintiff is a prolific litigant in federal Plaintiff's claims against these Defendants would not be court, having filed fifteen separate federal court ripe. Moreover, as made clear by the Supreme Court in lawsuits since 2006 and seven appeals. Heck v. Humphrey, "a plaintiff whose criminal conviction has not been 'reversed on direct appeal, expunged by C. Analysis of Complaint executive order, declared invalid by a state tribunal authorized to make such determination, or called into As stated above in Part II.A. of this Decision and question by a federal court's issuance of a writ of habeas Order, although courts are generally bound to construe the corpus,' may not seek damages under 42 U.S.C. § 1983 allegations of a pro se complaint with special leniency, for alleged violations of his constitutional rights." Brady they must do so within the confines of the requirements of v. Marks, 7 F.Supp.2d 247, 252--53 (W.D.N.Y.1998) Fed.R.Civ.P. 8. For example, "some facts must be (citing Heck v. Humphrey, 512 U.S. 477, 486--87 [1994] included in the complaint that would support the court's).

"[T]o permit a convicted criminal to proceed with a allege any fact sufficient to support its claim, a complaint malicious prosecution claim would permit a collateral should be dismissed with prejudice.") [citation omitted]; attack on the conviction through the vehicle of a civil Health--Chem Corp. v. Baker, 915 F.2d 805, 810 (2d suit." Marks, 7 F.Supp.2d at 253 (internal quotation Cir.1990) ("[W]here ... there is no merit in the proposed marks and citations omitted). amendments, leave to amend should be denied") .FN11

*6 For each of these many reasons, Plaintiff's FN11. The Court notes two Second Circuit cases Complaint must be, and is, dismissed based on the exist reciting the standard as being that the Court condition described below in Part II. of this Decision and should grant leave to amend "unless the court Order. The Court notes that, in reaching this conclusion, can rule out any possibility, however unlikely it it does not in any way deprive Plaintiff of the special might be, that an amended complaint would solicitude normally afforded to pro se civil rights litigants. succeed in stating a claim ." Gomez v. USAA However, the Court notes that limiting the special Federal Sav. Bank, 171 F.3d at 796; Abbas v. solicitude with which Plaintiff's Complaint is construed, in Dixon, 480 F.3d 636, 639 (2d Cir.2007) . The this circumstance, would be appropriate, given Plaintiff's problem with these cases is that their "rule out extraordinary experience as a pro se civil rights litigant in any possibility, however likely it might be" federal court, described below in Part II.C. of this standard is rooted in the "unless it appears Decision and Order. beyond doubt" standard set forth in Conley v. Gibson, 355 U.S. at 45--46, which was D. Nature of Dismissal "retire[d]" by the Supreme Court in Twombly, 127 S.Ct. 1955. See Gomez, 171 F.3d at 796 Generally, when a district court dismisses a pro se (relying on Branum v. Clark, 927 F.2d 698, 705 action sua sponte, the plaintiff will be allowed to amend [2d Cir.1991], which relied on Conley, 355 U.S. his or her action. See Gomez v. USAA Fed. Savings Bank, at 45--46). Thus, this standard does not appear to 171 F.3d 794, 796 (2d Cir.1999). However, an be an accurate recitation of the governing law. opportunity to amend is not required where the defects in the plaintiff's claims are substantive rather than merely This rule applies even to pro se plaintiffs. See, e.g., formal, such that any amendment would be futile. Cuoco, 222 F.3d at 103; Brown, 1997 WL 599355, at *1.

As the Second Circuit has explained, "[w]here it As explained above in Part II.A. of this Decision and appears that granting leave to amend is unlikely to be Order, while the special leniency afforded pro se civil productive, ... it is not an abuse of discretion to deny leave rights litigants somewhat loosens the procedural rules to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, governing the form of pleadings (as the Second Circuit has 131 (2d Cir.1993) [citations omitted]; accord Brown v. observed), it does not completely relieve a pro se plaintiff Peters, 95--CV--1641, 1997 WL 599355, at *1 (N.D.N.Y. of the duty to satisfy the pleading standards set forth in Sept. 22, 1997) (Pooler, J.) ("[T]he court need not grant Fed.R.Civ.P. 8, 10, and 12; rather, as both the Supreme leave to amend where it appears that amendment would Court and Second Circuit have repeatedly recognized, the prove to be unproductive or futile.") [citation omitted]; see requirements set forth in Fed.R.Civ.P. 8, 10, and 12 are also Foman v.. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, procedural rules that even pro se civil rights plaintiffs 230 (1962) (denial not abuse of discretion where must follow. amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) ("The problem with Cuoco's *7 Here, Plaintiff's obvious familiarity with these causes of action is substantive; better pleading will not requirements is evidenced by his extensive litigation cure it. Repleading would thus be futile. Such a futile history, which raises serious concerns as to Plaintiff's request to replead should be denied.") [citation omitted]; vexatious nature (and his right to amend his current Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 28 Complaint). More specifically, the Court's research has (2d Cir.1991) ("Of course, where a plaintiff is unable to revealed that Plaintiff has amassed a significant record of civil actions filed in just the past four years. According to the Federal Judiciary's Public Access to Court Electronic On February 5, 2009, Plaintiff filed Daley v. Records ("PACER"), since November of 2006, he has Commissioner of OMH, 09--CV--0146, in this District. The filed fifteen complaints in various districts throughout the handwritten complaint consisted of 55 pages, plus nearly country, including one in this district, as well as seven 200 pages of exhibits. See Daley v. Commissioner of circuit court appeals.FN12 All but one of his actions have OMH, Northern District of New York, 09--CV--0146, Dkt. been dismissed, and Plaintiff has previously been warned No. 1. In addition, Plaintiff filed a 65--page document of the requirements of Fed.R.Civ.P. 8 and of the containing hundreds of citations and apparently some consequences of filing frivolous lawsuits. "argument." See id. at Dkt. No. 3. Expressly stating its concern that Plaintiff's filing may have been an attempt to FN12. Plaintiff also apparently attempted to circumvent the filing injunction issued by Chief Judge make various submissions with the United States Kimba Wood in the Southern District of New York, the Supreme Court, which, on April 27, 2009, Court characterized Plaintiff's complaint as "plainly directed the Clerk of the Court not to accept any frivolous" and dismissed it without leave to amend. See id. further petitions in non-criminal matters from at Dkt. No. 4. On Plaintiff's appeal, the Second Circuit Plaintiff unless he paid the docketing fee and denied his motion to proceed in forma pauperis and c o m p l i e d w i t h t h e C o u r t ' s r u l e s . dismissed the appeal as lacking an arguable basis in law or Pickering--George v. Holder, 129 S.Ct. 2061 in fact. See id. at Dkt. No. 10. (2009).

*8 On March 31, 2009, Plaintiff filed another action, For example, on November 30, 2006, Plaintiff filed in the District of Delaware on March 31, 2009, Daley v. an action in the District of Colombia, Pickering--George U.S. District Court of Delaware, 09--CV--0218, which was v. U.S. Attorney General, 06--CV--2061, which was dismissed on June 24, 2009, as frivolous and malicious, dismissed for failure to comply with the requirements of pursuant to 28 U.S.C. § 1915(e) (2)(B).

Fed.R.Civ.P. 8(a); the district court's dismissal was affirmed on appeal. See Pickering--George v. U.S. Recently, on March 30, 2010, Plaintiff filed a Attorney General, No. 06--5418 (D.C.Cir. Nov. 19, 2007). complaint against Brookhaven (N.Y.) Center, among others, in the Eastern District of New York. In June of 2008, the Eastern District of New York Pickering--George v. Brookhaven (N.Y.) Center, dismissed a complaint that Plaintiff filed in that district, 10--CV--1103, 2010 WL 1740439 (E.D.N.Y. Apr. 30, Pickering--George v. City of New York, 08--CV--0512, 2010). In dismissing the complaint for failure to comply noting that Plaintiff had filed numerous frivolous actions with Fed.R.Civ.P. 8, the court characterized Plaintiff's in several federal courts under at least five aliases in the t w e l v e - p a g e h a n d w r i t t e n c o m p l a i n t a s previous three years (including "John R. Daly, Jr.," "John "incomprehensible," and noted that "the Complaint is T. Piquin--George," and "John T. George"); after issuing largely comprised of quotations from various federal an order to show cause, to which Plaintiff failed to statutes and case law." Pickering--George v. Brookhaven respond, on August 5, 2008, the Eastern District of New (N.Y.) Center, 2010 WL 1740439, at * 1.

York issued an order prohibiting Plaintiff from filing future actions in that district without first obtaining leave In addition, on August 31, 2010, the District of of court. See Pickering--George v. City of New York, Colombia dismissed a complaint filed by Plaintiff against Eastern District of New York, 08--CV--0512, Dkt. Nos. 3, the Attorney General of the United States, among others, 10. Notwithstanding the court's order, on November 19, as a result of Plaintiff's failure to comply with 2009, plaintiff filed another action in that district, Fed.R.Civ.P. 8. Pickering--George v. Attorney--General, Pickering--George v. Gonzalez, 09--CV--9638, which was District of Columbia, 10--CV--1507, Dkt. Nos. 3, 4. dismissed on the day it was filed due to Plaintiff's failure to obtain prior permission of the court. In view of the foregoing, it seems highly unlikely that Plaintiff will be able state a claim upon which relief can be 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), UNLESS, granted. Notwithstanding that fact, the Court is mindful of within THIRTY (30) DAYS from the date of this the fact that it has great difficulty deciphering the claims Decision and Order, Plaintiff files an AM ENDED and factual allegations that Plaintiff is attempting to assert COM PLAINT that states a claim upon which relief can in his Complaint. As a result, at this juncture, the Court be granted; and it is further has trouble concluding that an amendment by Plaintiff would be futile. For these reasons, Plaintiff shall be ORDERED that any Amended Complaint filed by afforded an opportunity to file an Amended Complaint, Plaintiff must be a complete pleading, which will before the dismissal of this action. Plaintiff is advised that supersede his original Complaint in all respects, and which his action will be dismissed unless, within thirty (30) days may not incorporate any portion of his original Complaint from the date of the filing of this Decision and Order, he by reference; and it is further files an Amended Complaint that states a claim upon which relief can be granted. ORDERED that, upon receipt from Plaintiff of his

Amended Complaint, the Clerk shall forward that In the event that Plaintiff chooses to file an Amended Amended Complaint to the undersigned for further review; Complaint, he is advised that any such Amended and it is further Complaint, shall supersede and replace in its entirety his original Complaint, and may not incorporate any portion ORDERED that, in the event Plaintiff fails to file an of his original Complaint by reference. See N.D.N.Y. L.R. Amended Complaint that complies with the terms of this 7.1(a)(3); Harris v. City of N.Y., 186 F.3d 243, 249 (2d Decision and Order as set forth above, the Clerk shall Cir.1999) (citing Shields v. Citytrust Bancorp, Inc., 25 enter Judgment dismissing this action without further F.3d 1124, 1128 [2d Cir.1994] ). In an extension of Order of this Court. special solicitude, he is further advised that the body of the Amended Complaint should (1) state the basis for this N.D.N.Y.,2010.

Court's jurisdiction over his claims, (2) state the reasons that the case is properly venued in this Court, (3) contain Pickering-George v. Cuomo sequentially numbered paragraphs founded only one Not Reported in F.Supp.2d, 2010 WL 5094629 occurrence of misconduct per paragraph, and (4) describe (N.D.N.Y.) such facts as the alleged acts of misconduct, the dates on END OF DOCUMENT which such misconduct occurred, the names of each and every individual who participated in such misconduct, and, where appropriate, the location where the alleged misconduct occurred.

*9 ACCORDINGLY, it is

ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further

ORDERED that Plaintiff's motion for various other relief (Dkt. No. 3) is DENIED; and it is further

ORDERED that Plaintiff's Complaint SHALL BE sua sponte DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. §

(Cite as: 2010 WL 5437212 (E.D.N.Y.))

C.O. # 1158, C.O. # 1257, C.O. # 1251, C.O. # 1207,

C.O. # 1259, C.O. # 1094, C.O. # 1139, C.O. # 1241,

C.O. Violet, C.O. # 962, C.O. # 1131, C.O. "Tom

Only the Westlaw citation is currently available. Arnold", Lt. McClurkin, C.O. Galotti, Sgt. Fischer, C.O.

United States District Court, Cathy Ryan (Peeping Pervert), C.O. Kenneth Lawler, C.O. # 668, Co. # 1274, C.O. William Zikis, C.O. # E.D. New York. 1324, C.O. # 1275, C.O. Joseph Foti, C.O. # 1220, C.O. Anthony J. CEPARANO, Plaintiff, # 1276, C.O. Ezekiel, Dep "Brutalitywiolators" # 1--12, v. C.O. "John Civil Rights Violators" # 1--200, Nurse SUFFOLK COUNTY, County Executive Steve Levy, "Korea", Nurse Pat, Nurse Julie "Loud", Nurse "Male, Suffolk County Police Department, Police Earring, Glasses", Nurse "Really Ugly Warts, Always Commissioner Richard Dormer, Former Police Nasty & Rude", Suffolk County Probation Department, Commissioner (2003), Lt. Michael Fitzpatrick, Lt. Senior Supervisor, Senior P.O. Bennedetto, Probation James Maher, Lt. Paul Schrieber, Det. Anthony Leto, Officer Curtis, Probation Officer "Herman Muenster" Det. Behrens, Det. Robert Suppa, Det. William (P.O. Curtis' Partner), Probation Officer Soltan, Sheridan, P.O. Christopher Viar, P.O. Walter Hetzel, Probation Officer "P.O. Soltan Partner", Front Desk P.O. Kathleen Focas, P.O. Timothy Kelly, Sgt. Leonard, Clerk, Andrew O'flaherty, West Babylon Fire Sgt. William Wallace, P.O. Eric Guiterman, P.O. Department, Supervisor Mina, Emt McClean, Good William Vasquez, P.O. James Behrens, P.O. Anthony Samaritan Hospital, Dr. Jeffrey Margulies, Dr. "I.C.U.", Calato, P.O. Daniel Rella, P.O. Juan Valdez, Sgt. Nurse "Do You Want His Clothes", Nurse "Interogate William Scaima, P.O. Anthony Wuria, P.O. Michael [Sic] Him Before He's Sedated", Donna Venturini, Rob Pelcher, P.O. Ernie Ketcham, Sgt. Frank Giuliano, Lt. Gannon, Beth Feeney, Jeanne H. Morena, Southside James Smith, Det. "James Smith's Partner", Sgt. Ken, Hospital, Dr. "Julie Crist's E.R. Doctor", Dr. "Chief [of] P.O. (5TH Precinct), P.O. "John Doe's # 's 1--50", Lt. Psychiatry", Newsday, Editor John Mancini, Managing Stephen Hernandez, Lt. Daniel Meyer, Capt. John Editor Deborah Henley, Managing Editor Debby Hanley, Suffolk County Division of Medical Legal Krenek, Reporter Bill Mason, 1010 Wins Radio, 1010

Investigations and Forensic Science, Chief of wins.com, Programming Director, Reporter, Toxicology Michael Lehrer, Asst. Chief of Toxicology Cablevision, News 12 Long Island, Programming Michael Katz, Toxicologist Lori Arendt, Reconstruction Director, Reporter, Southern Meadows Apartments, Analyst Robert Genma, Suffolk County District Property Manager Debra Cody, Property Manager, Attorney's Office, District Attorney Thomas J. Spota III, Maintenance [Sic] Supervisor William Florio, Suffolk Chief Major Crime Bureau, A.D.A. Bradford S. Magill, County Intensive Case Management, Director Douglas A.D.A. Patricia Brosco, "Supervisor of Bradford S. Shelters, Case Manager Dana Romano, Bellport Magill", "Supervisor of Patricia Brosco", Suffolk Outreach, Director, Supervisor of Julie Crist's Case Mgr County Unified Courts System, Presiding Judge S.C. Jenny, Julie Crist's Case Mgr Jenny, Global Tel--Link, District Ct., Judge Gaetan B. Lozito, Presiding Judge Ceo, Board of Directors, Executive V.P. Billing and Ralph T. Gazzilo, Presiding Judge C. Randall Hinrichs, Marketing Margaret Phillips, Julie Dougherty A.K.A.

Court Reporter Dennis P. Brennan, Court Reporter Julie Crist, myspace.com, Mother's Against Drunk Susan T. Conners, Judge Martin Efman, Judge J.J. Driving (Madd), and Madd President 2007--2009, Jones, Suffolk County Legal Aid Society, Presiding Defendants.

Attorney Edward Vitale, Attorney Susan Ambro, 18--B No. 10--CV--2030 (SJF)(ATK). Counsel Robert Macedonio, Suffolk County Sheriff's Department, Sheriff Vincent Demarco, Sheriff Alfred Dec. 15, 2010.

Etisch, Warden Ewald, Former Warden (2004--2006),

Anthony J. Ceparano, Gowanda, NY, pro se. 1275, # 1220, # 1276, Violet, "Tom Arnold", Galotti, Ezekiel, "Cathy Ryan (Peeping Pervert)", William Zikis, ORDER Kenneth Lawler, Joseph Foti, Lieutenant McClurkin, Sergeant Fischer, "Dep BrutalityWiolators # 1--12", FEUERSTEIN, District Judge. Corrections Officers "John Civil Rights Violators" # I. Introduction 1--200, Corrections Nurses "Korea", Pat, "Julie Loud", *1 On May 4, 2010, incarcerated pro se plaintiff "Male, Earring, Glasses", "Really Ugly Warts, Always Anthony J. Ceparano ("plaintiff"), commenced this Nasty & Rude", Suffolk County Senior Probation purported civil rights action pursuant to 28 U.S.C. § 1983 Supervisor, Senior Probation Officer Bennedetto, against approximately four hundred and fifteen (415) Probation Officers Curtis, "Herman Muenster (P.O. Curtis' defendants, one hundred and fifty-three (153) of whom are partner)", Soltan, "P.O. Soltan Partner", Front Desk Clerk, named: FN1 Suffolk County, County Executive Steve Levy, Andrew O'Flaherty, West Babylon Fire Department, Suffolk County Unified Courts System, Suffolk County Supervisor Mina, Emergency Medical Technician District Attorney's Office, Suffolk County Legal Aid McClean, Good Samaritan Hospital, Doctors. Jeffrey Society, Suffolk County Police Department, Suffolk Margulies, "I.C.U.", Nurses "Do you want his clothes", County Sheriff's Department, Suffolk County Division of "Interogate [sic] him before he's sedated", Donna Medical Legal Investigations and Forensic Science, Venturini, Rob Gannon, Beth Feeney, Jeanne H. Morena, Suffolk County Probation Department, Suffolk County Southside Hospital, Drs. "Julie Crist's E.R. Doctor", Police Commissioner Richard Dormer, Former Police "Chief [of] Psychiatry", Newsday, Editor John Mancini, Commissioner (2003), Captain John Hanley, Lieutenants Managing Editor Deborah Henley, Managing Editor Michael Fitzpatrick, James Maher, Paul Schrieber, James Debby Krenek, Reporter Bill Mason, 1010 W INS Radio, Smith, Stephen Hernandez, Daniel Meyer, Sergeants 1010 WINS.com, Programming Director, Reporter, William Wallace, William Scaima, Frank Giuliano, Cablevision, News 12 Long Island, Programming Leonard, Ken Detectives Anthony Leto, Behrens, Robert Director, Reporter, Southern Meadows Apartments, Suppa, William Sheridan, "James Smith's Partner", Police Property Manager Debra Cody, Property Manager, Officers Christopher Viar, Walter Hetzel, Kathleen Focas, Maintenance [sic] Supervisor William Florio, Suffolk Timothy Kelly, Eric Guiterman, William Vasquez, James County Intensive Case Management, Director Douglas Behrens, Anthony Calato, Daniel Rella, Juan Valdez, Shelters, Case Manager Dana Romano, Bellport Outreach, Anthony Wuria, Michael Pelcher, Ernie Ketcham, "(5th Director, Supervisor of Julie Crist's Case Manager Jenny, Precinct)", Police Officers "John Doe's # 's 1--50", Chief Julie Crist's Case Manager Jenny, Global Tel--Link, CEO, of Toxicology Michael Lehrer, Assistant Chief of Board of Directors, Executive Vice President of Billing Toxicology Michael Katz, Toxicologist Lori Arendt, and Marketing, Margaret Phillips, Julie Dougherty A.K.A. Reconstruction Analyst Robert Genma, Suffolk County Julie Crist, Myspace.com, Mother's Against Drunk District Attorney Thomas J. Spota III, Chief Major Crime Driving (MADD), and MADD President 2007--2009. Bureau, Assistant District Attorney Bradford S. Magill, Accompanying the complaint is an application to proceed Assistant District Attorneys Patricia Brosco, "Supervisor in forma pauperis. Upon review of the declaration of Bradford S. Magill", "Supervisor of Patricia Brosco", accompanying plaintiff's application, I find that plaintiff's Suffolk County presiding Judges Gaetan B. Lozito, Ralph financial status qualifies him to commence this action T. Gazzilo, C. Randall Hinrichs, Martin Efman, J.J. Jones, without prepayment of the filing fees. See 28 U.S.C. § Court Reporters Dennis P. Brennan, Susan T. Conners, 1915(a) (1). Accordingly, plaintiff's application is granted. Suffolk County presiding Legal Aid Attorneys Edward However, for the reasons set forth below, the complaint is Vitale, Susan Ambro, 18--B Counsel Robert Macedonio, sua sponte dismissed in part without prejudice and Suffolk County Sheriffs Vincent DeMarco, Alfred Etisch, dismissed in part with prejudice.

Warden Ewald, Former Warden (2004--2006), Corrections FN1. Plaintiff's "named" defendants include Officers # 1158, # 1257, # 1251, # 1207, # 1259, # 1094, those he has nicknamed (i.e. "Herman # 1139, # 1241,# 962, # 1131, # 668, # 1274, # 1324, # Muenster") or otherwise described (i.e. "Nurse really ugly warts, always nasty & rude") as my hand [and] smashed me over the head with it." Id. at ¶ opposed to those simply included as "John Doe." 10. According to the complaint, "[i]n Suffolk County, law enforcement is a self-serving, self-sustaining aberation

II. The Complaint [sic] that exists not for the benefit of and protection of society as much as it does for the enrichment of those who *2 Plaintiff's handwritten complaint exceeds two hold badges and law licenses." Id. at ¶ 52. Plaintiff hundred and fifty pages and is comprised of over seven alleges: hundred numbered paragraphs purporting to allege a myriad of claims based upon conduct alleged to have law here [in Suffolk County] is about conviction rates, occurred between 2003 and 2009. The complaint is largely merit raises, and elections. The goals are promotions a collection of diatribes, opinions, conclusions and and raises, and personal advancement and enrichment. speculation devoid of underlying facts. For example, the Above all, it is about the exercise and abuse of power, complaint begins: without regard to consequence, by those that are above

I grew up believing in this Country, and the ideals I was the law. These demons destroy lives, regardless of the taught in school: "All men are created equal. By the irrelevant concepts of truth and innocence, with no more people, of the people, for the people. No person shall be thought than you give to stepping on a bug while deprived of life, liberty or property without due process walking. Not only do police and district attorneys of the law. The rights of the people to be secure in their continue arrests and prosecutions of those they suddenly persons, houses, and papers ..." Anyone who believes realize are innocent, they also entrap people they know this has never lived in Suffolk County. It is all a lie! The from the start are innocent. The attitude is "you've been people have no rights. Police, D.A.'s, local government arrested before so you'll do some more time. So what? agents, wield unchecked power and abuse whoever they What difference does a little thing like innocence make? want at will. No one is safe, and god forbid you've ever I need an arrest made a mistake, you are targeted forever ... *3 Rule 8(a) (2) of the Federal Rules of Civil

Procedure requires that pleadings present a "short and It took just one year of living in Suffolk County ... to plain statement of the claim showing that the pleader is destroy all my faith, and every illusion that I ever had entitled to relief," and "[e]ach averment of a pleading shall about having civil rights. I thought these things only be simple, concise and direct." Fed.R.Civ.P. 8; happened in urban ghettos or the backwoods of the deep Swierkiewicz v. Sorema, NA., 534 U.S. 506, 512, 122 south. Never could I have imagined this could ever S.Ct. 992, 152 L.Ed.2d 1 (2002). Pleadings must give "fair happen here. It's a sick game. There is no justice ... notice of what the plaintiff's claim is and the grounds upon which it rests" in order to enable the opposing party to Compl. at ¶ IV (emphasis in original). The complaint answer and prepare for trial, and to identify the nature of continues: the case. Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (quoting Police brutality in Suffolk County is not the exception. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d It is the rule. It is page one, standard operating 80 (1957), overruled in part on other grounds by Bell procedure. A badge in Suffolk County is a license to Atlantic Corporation v. Twombly, 550 U.S. 554, 127 S.Ct. assault, and even kill, placing the holder above the law. 1955, 167 L.Ed.2d 929 (2007).

I have been arrested seven times in Suffolk County, six of which I was taken into custody. Of the six, five (83%) A complaint should be short and clear because involved police brutality and excessive force. "unnecessary prolixity in a pleading places an unjustified Id. at ¶¶ 8--9 (emphasis in original). Plaintiff then burden on the court and the party who must respond to it describes each of his arrests in Suffolk County, beginning because they are forced to select the relevant material with his November 8, 2003 arrest wherein Lieutenant from a mass of verbiage." Salahuddin v. Cuomo, 861 F.2d James Smith is alleged to have "yanked the phone out of 40, 42 (2d Cir.1998); see also Roberto's Fruit Market, Inc. v. Schaffer, 13 F.Supp.2d 390 (E.D.N.Y., 1998).; The merits and not solely on the ground that the complaint Homeless Patrol v. Joseph Volpe Family, 09--CV--3628, does not constitute a short and plain statement of the facts, 2010 WL 2899076, at *7 (S.D.N.Y. July 22, 2010) leave to amend the complaint should be given at least (dismissing sua sponte a one hundred and forty-eight once. Salahuddin, 861 F.Supp. at 42. (148) page pro se amended complaint for, inter alia, failure to satisfy Rule 8). "Complaints which ramble, 3. Habeas Corpus which needlessly speculate, accuse, and condemn, and which contain circuitous diatribes far removed from the *4 Section 1983 provides that: heart of the claim do not comport with [Rule 8's] goals and [e]very person who, under color of any statute, this system; such complaints must be dismissed." Infanti ordinance, regulation, custom, or usage, of any State ... v. Scharpf, 06 CV 6552, 2008 WL 2397607, at *1 subjects, or causes to be subjected, any citizen of the (E.D.N.Y. June 10, 2008) (quoting Prezzi v. Berzak, 57 United States ... to the deprivation of any rights, F.R.D. 149, 151, 16 Fed.R.Serv.2d 970 (S.D.N.Y.1972)). privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.... However, "[d]ismissal of a complaint in its entirety should be 'reserved for those cases in which the complaint 42 U.S.C. § 1983. To state a claim under Section 1983, is so confused, ambiguous, vague, or otherwise a complaint must contain factual allegations plausibly unintelligible that its true substance, if any is well suggesting: (1) that the challenged conduct was disguised.' " Infanti, 2008 WL 2397607, at *2, (quoting attributable at least in part to a person acting under Salahuddin, 861 F.Supp. at 42)). Accordingly, prolix, color of state law, and (2) that such conduct deprived unintelligible, speculative complaints that are the plaintiff of a right, privilege, or immunity secured by argumentative, disjointed and needlessly ramble have the Constitution or laws of the United States. American routinely been dismissed in this Circuit. See, e.g., Jones v. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49--50, 119 Nat'l Communications and Surveillance Networks, 266 S.Ct. 977 L.Ed.2d 130 (1999); Velez v. Levy, 401 F.3d F.App'x 31, 32 (2d Cir.2008) (affirming dismissal of 75, 84 (2d Cir.2005). fifty-eight (58) page, single-spaced pro se complaint with eighty-seven (87) additional pages of attachments, alleging B. Application over twenty (20) separate causes of action against more than forty (40) defendants for failure to meet the "short The complaint in its present form does not fulfill Rule and plain statement" requirement of Rule 8); Bell v. 8(a) (2)'s pleading requirements. The complaint is prolix, Lasaceli, 08--CV--0278A, 2009 WL 1032857, at *2 c o nfused , am b iguous, sp e c u la tiv e , re p e titiv e , (W .D.N.Y., Apr.15, 2009) (dismissing a two hundred argumentative and unintelligible. Neither the defendants (200) page pro se complaint naming forty-two (42) nor the court should be required to expend the time, effort defendants for noncompliance with Rule 8); Infanti, 2008 and resources necessary to parse through plaintiff's WL 2397607 (dismissing sua sponte a ninety (90) page pleading in order to determine what claims, if any, complaint comprised of over five hundred (500) plaintiff has alleged. Given "labyrinthian prolixity of paragraphs for running a foul of Rule 8's requirements); unrelated and vituperative charges that def[y] see also In re Merrill Lynch & Co., Inc., 218 F.R.D. 76, comprehension," Shomo v. State of New York, 374 77--78 (S.D.N.Y.2003) (dismissing ninety-eight (98) page F.App'x. 180, 183 (2d Cir.2010) (quoting Prezzi v. complaint comprised of three hundred and sixty-seven Schelter, 469 F.2d 691, 692 (2d Cir.1972)), the Court sua (367) paragraphs and explaining that "[w]hen a complaint sponte dismisses the complaint for failure to satisfy Rule is not short and plain, or its averments are not concise and 8(a)(2). However, plaintiff is afforded an opportunity to direct, 'the district court has the power, on motion or sua file a "short and plain statement of [his] claim" in sponte, to dismiss the complaint ....' ") (quoting Simmons accordance with this order. Plaintiff is advised that, for the v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995)). However, given reasons that follow, many of the named defendants are the preference that pro se cases be adjudicated on the either immune from suit or are outside the scope of Section 1983. Accordingly, plaintiff's Section 1983 claims against these defendants are not plausible and should be *5 Here, plaintiff's Section 1983 claims for money omitted from any amended complaint because such an damages against the state defendants in their official amendment would be futile. capacities are barred by the Eleventh Amendment and 1. Immunity therefore are not plausible. Accordingly, such claims are dismissed with prejudice. In so far as the plaintiff names

a. Eleventh Amendment Immunity the New York Unified Court System as a defendant, it too is considered an arm of the state and is thus immune from The Eleventh Amendment to the United States suit by the Eleventh Amendment. Gollomp v. Spitzer, 568 Constitution provides: F.3d 355, 368 (2d Cir.2009) ("[E]very court to consider the question of whether the New York State Unified Court The Judicial power of the United States shall not be System is an arm of the State has concluded that it is, and construed to extend to any suit in law or equity, is therefore protected by Eleventh Amendment sovereign commenced or prosecuted against one of the United immunity."). Thus, plaintiff's claims against the New York States by Citizens of another State, or by Citizens or State Unified Court System are not plausible and are Subjects of any Foreign State. dismissed with prejudice.

U.S. Const. amend. XI. "The reach of the Eleventh b. Prosecutorial Immunity Amendment has ... been interpreted to extend beyond the terms of its text to bar suits in federal courts against states, Plaintiff also seeks to sue the prosecuting attorneys in by their own citizens or by foreign sovereigns ...." State the underlying criminal cases against him for civil rights Employees Bargaining Agent Coalition v. Rowland, 494 violations pursuant to Section 1983. It is "well established F.3d 71, 95 (2d Cir.2007) (quoting W. Mohegan Tribe & that a state prosecuting attorney who acted within the Nation v. Orange C'ty, 395 F.3d 18, 20 (2d Cir.2004)) scope of his duties in initiating and pursuing a criminal (alterations in original). Eleventh Amendment immunity prosecution is immune from a civil suit for damages under also extends to suits for money damages against state § 1983.' " Shmueli v. City of New York, 424 F.3d 231, officials in their official capacities. Will v. Mich. Dep't of 236 (2d Cir.2005) (internal quotations omitted). State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 "Prosecutorial immunity from § 1983 liability is broadly L.Ed.2d 45 (1989) ("[A] suit against a state official in his defined, covering 'virtually all acts, regardless of or her official capacity is not a suit against the official but motivation, associated with [the prosecutor's] function as rather is a suit against the official's office. As such, it is no an advocate.' " Hill v. City of New York, 45 F.3d 653, 661 different from a suit against the State itself") (internal (2d Cir.1995) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d citation omitted); McNamara v. Kaye, No. 06--CV--5169, Cir.1994)). In Hill, an Assistant District Attorney's alleged 2008 WL 3836024, at *8 (E.D.N.Y. Aug.13, 2008) acts of "conspiring to present falsified evidence to, and to ("[L]awsuits against state officers acting [in] their official withhold exculpatory evidence from, a grand jury" were capacity and lawsuits against state courts are considered to "clearly protected by the doctrine of absolute immunity as be lawsuits against the state.").FN2 [being] part of his function as an advocate." Id. at 661.

Here, plaintiff alleges, inter alia, that Assistant

FN2. A narrow exception to this rule exists for District Attorneys Magill and Brosco withheld evidence suits injunctive relief against state officers in from the grand jury and did not provide required their official capacity. See Will, 491 U.S. at 71, disclosures until days before or the day of trial. These n. 10. To the extent plaintiff seeks prospective allegations fall within the scope of protection defined by injunctive relief against any state defendant in his the doctrine of prosecutorial immunity and plaintiff has or her official capacity, plaintiff may include failed to otherwise allege any conduct by these defendants such claim in an amended complaint to be filed that would fall outside the scope of prosecutorial in accordance with this order. immunity. Accordingly, plaintiff's claims against these defendants are not plausible and are dismissed with 2009) (dismissing claims against New York City prejudice. department of probation); Conte v. County of Nassau, No. 06--CV--4746, 2008 W L 905879, at *1 n. 2 (E.D.N.Y. c. Judicial Immunity Mar. 31, 2008) (dismissing § 1983 claims against Nassau County District Attorney's Office).

Plaintiff seeks to sue several state court judges of the Insofar as plaintiff alleges claims against the Suffolk Suffolk District Court, Suffolk County Court and New County Police Department, Suffolk County District York State Supreme Court, Suffolk County, who were Attorney's Office, Suffolk County Sheriff's Department allegedly involved with his underlying criminal and Suffolk County Probation Department, the Court finds proceedings. Judges Lozito, Gazzilo FN3, Hinrichs, Efman these entities to be administrative arms of the municipality and Jones are entitled to absolute judicial immunity. It is and therefore lack the capacity to be sued. The Court well settled that judges are entitled to absolute immunity construes Suffolk County Division of Medical, Legal for damages arising out of judicial actions performed in Investigations and Forensic Sciences to be an their judicial capacity. See Mireles v. Waco, 502 U.S. 9, administrative arm of the municipality and thus lacks the 11--12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Fields v. capacity to be sued. S ee Bennett v. County of Suffolk, 30 Soloff, 920 F.2d 1114, 1119 (2d Cir.1990). Therefore, "if F.Supp.2d 353 (E.D.N.Y.1998) (Suffolk County acted the relevant action is judicial in nature, the judge is through its Department of Health Services).FN4 Therefore, immune so long as it was not taken in the complete plaintiff's claims against the above named entities are absence of jurisdiction." Huminski v. Corsones, 396 F.3d dismissed with prejudice. 53, 75 (2d Cir.2004).

FN3. Plaintiff alternates the spelling of the FN4. The Court takes judicial notice that the defendant's name, spelling it "Gazzillo" and Suffolk County Division of Medical Legal "Gazzilo." Investigations is a division of the Suffolk County

Department of Health Services.

*6 Even liberally construed, plaintiff alleges no acts performed by any of these defendants that fall outside the 2. Private Defendants Not Amenable to Suit Under § 1983 scope of absolute judicial immunity. To the extent plaintiff even describes the conduct of any of the judges, all acts a. Suffolk County Legal Aid Society, Edward Vitale and described were performed in their official capacity as Susan Ambro judges. Therefore, plaintiff's claims against these defendants are not plausible and are dismissed with "[T]he Legal Aid Society ordinarily is not a state prejudice. actor amenable to suit under § 1983." Schnabel v. Abramson, 232 F.3d 83, 86--87 (2d Cir.2000). d. Entities that are Immune from Suit Furthermore, Legal Aid attorneys are employees of "a private not for profit legal services corporation ... "[U]nder New York law, departments that are merely organized under the laws of New York [that] exists administrative arms of a municipality do not have a legal independent of any state or local regulatory authority." identity separate and apart from the municipality and, Neustein v. Orbach, 732 F.Supp. 333, 336 n. 3 therefore, cannot sue or be sued." Davis v. Lynbrook (E.D.N.Y.1990). "Like the state-action requirement of the Police Dep't, 224 F.Supp.2d 463, 477 (E.D.N.Y.2002) Fourteenth Amendment, the under-color-of-state-law (dismissing claim against Lynbrook Police Department); element of § 1983 excludes from its reach merely private see also Melendez v. Nassau County, No. 10--CV--2516, conduct, no matter how discriminatory or wrongful." 2010 WL 3748743, at *5 (E.D.N.Y. Sept.17, 2010) American Mfrs., 526 U.S. at 49 (internal quotations (dismissing claims against Nassau County Sheriff's omitted). Given that the Suffolk County Legal Aid Society Department); Coleman v. City of New York, No. and its attorneys are not state actors, plaintiff's § 1983 08--CV--5276, 2009 W L 909742, at *2 (E.D.N.Y. Apr. 1, claims against the Suffolk County Legal Aid Society and its attorneys, Edward Vitale and Susan Ambro, are not 323 (2d Cir.1986) (quoting McKinnon v. Patterson, 568 plausible and are thus dismissed with prejudice. F.2d 930, 934 (2d Cir.1977)). Whether or not there was "personal involvement is a question of fact." Williams, b. Other Private Defendants 781 F.2d at 323.

Upon review of the voluminous complaint, the Court *7 As stated above, a defendant must be acting under finds that the following defendants, though named in the color of state law to be liable for a § 1983 claim. Id. caption, appear nowhere in the body of the complaint: Plaintiff's complaint largely describes alleged civil rights Suffolk County Executive Steve Levy, Police violations pursuant to Section 1983 against a myriad of Commissioner Richard Dormer, Police Commissioner private actors. Insofar as plaintiff purports to allege Former 2003, Det. Behrens, Det. William Sheridan, P.O. Section 1983 claims against private defendants for Timothy Kelly, Sgt. Leonard, Sgt. William Wallace, P.O. violations of his civil rights, such claims are not plausible Eric Guiterman, P.O. James Behrens, P.O Anthony Calato, and are dismissed with prejudice. Accordingly, the P.O. Daniel Rella, P.O. Juan Valdez, Sgt. William Scaima, complaint is dismissed as against E.M.T. McClean, Good P.O. Anthony Wuria, P.O. Michael Pelcher, P.O. Ernie Samaritan Hospital, Dr. Jeffrey Margulies, Donna Ketcham, Sgt. Frank Giuliano, Michael Lehrer, Thomas J. Venturini, Rob Gannon, Beth Feeney, Jeanne H. Morena, Spota, Supervisor of Bradford S. Magill, Supervisor of Southside Hospital, Newsday, John Mancini, Deborah Patricia Brosco, Presiding Judge S.C. District Court Henley, Debby Krenek, Bill Mason, 1010 WINS Radio, 6/5/07, Edward Vitale, Sheriff Vincent DeMarco, Sheriff 1010 WINS.com, South Meadows Apartments, Debra Alfred Etisch, Warden Ewald, Warden Former 8/04--5/06, Cody, William Florio, Bellport Outreach, Global C.O. # 1158, C.O. # 1257, C.O. # 1207, C.O. # 1259, Tel--Link, Margaret Phillips, Julie Dougherty A.K.A. Julie C.O. # 1094, C.O. # 1139, CO. Violet, C.O. # 962, C.O. Crist, Myspace.com, and Mother's Against Drunk Driving "Tom Arnold", C.O. Galotti, Sgt. Fischer, C.O. Cathy (MADD). Ryan (Peeping Pervert), C.O. Kenneth Lawler, C.O. # 3. Unnamed Correctional Officers 668, C.O. # 1274, CO. William Zikis, C.O. # 1324, CO. # 1275, C.O. Joseph Foti, C.O. Ezekiel, Dep Although it is a general principle of tort law that a tort "Brutality*Violators" # 1--12, C.O. "John Civil Rights victim who cannot identify the tortfeasor cannot bring suit, Violators" # 1--200, Suffolk County Probation in the case of pro se litigants this rule has been relaxed. Department, Senior Supervisor, Senior P.O. Bennedetto, Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir.1997). Probation Officer Soltan, Probation Officer "P.O. Soltan Plaintiff purports to allege claims against various Partner", Front Desk Clerk, West Babylon Fire unnamed officers alleged to work at the Suffolk County Department, Supervisor Mina, EMT McClean, Dr. Jeffrey Police Department's Fifth Precinct and the Suffolk County Margulies, Dr. "I.C.U.", Rob Gannon, Beth Feeney, Sheriff's Department as well as other "John Doe" Jeanne H. Morena, Southside Hospital, Dr. "Julie Crist's defendants, whose work places are not identified within E.R. Doctor", Dr. "Chief [of] Psychiatry", Editor John the Complaint. The United States Marshal Service will not Mancini, Managing Editor Deborah Henley, Managing be able to serve the intended defendants without further Editor Debby Krenek, Reporter Bill Mason, Programming information. Accordingly, the Court hereby directs Director, Reporter, Programming Director, Reporter and plaintiff to ascertain the full names of the unidentified Director Douglas Shelters. defendants whom plaintiff seeks to sue.

*8 Plaintiff does not plead factual allegations such 4. Claims Against State Actors in Their Individual that these defendants would have notice of his claims and Capacities be able defend against them. Moreover, plaintiff does not allege that any of these defendants were personally "[P]ersonal involvement of defendants in alleged involved in any of the alleged wrongdoing. Because constitutional deprivations is a prerequisite to an award of personal involvement is a prerequisite to a damages award damages under § 1983." Williams v. Smith, 781 F.2d 319, for an alleged constitutional violation, plaintiff's claims, as plead, are not cognizable as against these defendants. which plaintiff is incarcerated must forward to the Clerk of the Court a certified copy of plaintiff's trust fund D. Leave to Amend account for the six (6) months immediately preceding this order, in accordance with plaintiff's authorization in his in Rule 15(a) (2) of the Federal Rules of Civil Procedure forma pauperis application. The agency holding plaintiff provides that a party shall be given leave to amend "when in custody must calculate the amounts specified by 28 justice so requires." When addressing a pro se complaint, U.S.C. § 1915(b), deduct those amounts from his prison a district court should not dismiss without granting leave trust fund account, and disburse them to the Clerk of the to amend at least once "when a liberal reading of the United States District Court for the Eastern District of complaint gives any indication that a valid claim might be New York. The Warden or Superintendent shall not stated." Thompson v. Carter, 284 F.3d 411, 419 (2d deduct more than twenty percent (20%) from plaintiff's Cir.2002) (citing Branum v. Clark, 927 F.2d 698, 705 (2d trust fund account. Cir.1991)). Nevertheless, "[l]eave to amend, though *9 The Clerk of the Court is directed to mail a copy liberally granted, may properly be denied for: 'undue of this order, together with plaintiff's authorization, to the delay, bad faith or dilatory motive on the part of the Superintendent of the facility in which plaintiff is movant, repeated failure to cure deficiencies by incarcerated and to serve notice of entry of this Order in amendments previously allowed, undue prejudice to the accordance with Rule 77(d)(1) of the Federal Rules of opposing party by virtue of allowance of the amendment, Civil Procedure, including mailing a copy of the Order to futility of amendment, etc.' " Ruotolo v. City of New York, the pro se plaintiff at his last known address, see 514 F.3d 184, 191 (2d Cir.1998) (citing Forman v. Davis, Fed.R.Civ.P. 5(b)(2)(c). The Court certifies pursuant to 28 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). U.S.C. § 1915(a)(3) that any appeal from this order would "If the underlying facts or circumstances relied upon by a not be taken in good faith and therefore in forma pauperis plaintiff may be a proper subject of relief, he ought to be status is denied for the purpose of any appeal. See afforded an opportunity to test his claim on the merits." Coppedge v. United States, 369 U.S. 438, 444--45, 82 Forman, 371 U .S. at 182. However, if amendment would S.Ct. 917, 8 L.Ed.2d 21 (1962). be futile, i.e., if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6), leave to amend may be denied. SO ORDERED.

See Lucente v. International Business Machines Corp., 310 F.3d 243, 258 (2d Cir.2002). E.D.N.Y.,2010.

Since plaintiff is proceeding pro se, he is granted leave to amend his complaint to replead his 1983 claims Ceparano v. Suffolk County in accordance with this order. Plaintiff shall comply with Not Reported in F.Supp.2d, 2010 WL 5437212 Federal Rule of Civil Procedure 8 as set forth above at (E.D.N.Y.) pages eight to ten (8--10) and file any amended complaint END OF DOCUMENT in accordance with this order within thirty (30) days from the date this order is served with notice of entry upon him, or plaintiff's complaint will be deemed dismissed with prejudice.

IV. Conclusion

For the foregoing reasons, plaintiff's application to proceed in forma pauperis is granted and the complaint is sua sponte dismissed with leave to amend within thirty (30) days from the date this order is served with notice of entry upon plaintiff. The Superintendent of the facility in during that time various corrections officers and medical care providers were responsible for numerous and continuous incidences of deliberate indifference to his Only the Westlaw citation is currently available. medical needs, assault, and destruction of property.

United States District Court, Plaintiff's allegations are summarized below.

A. The Deliberate Medical Indifference Allegations

S.D. New York.

Jose J. SHOMO, Plaintiff, On his first day in custody, September 20, 1999, v. Shomo received a physical examination from Dr. Christen CITY OF NEW YORK, et al., Defendants. Pedestu, who found that Shomo suffered from right arm

No. 03 Civ. 10213(AKH). paralysis and limited use of his left arm. See Compl., ¶ 30.

Dr. Pedestu also noted that "Plaintiff was receiving Health

April 4, 2005. Home Attendants Services while he was on the streets." OPINION AND ORDER GRANTING MOTION TO Compl., ¶ 31. Accordingly, Dr. Pedestu recommended that DISMISS, WITH PARTIAL LEAVE TO REPLEAD the DOC admit Shomo to the North Infirmary Command

(NIC). Id. Over the next five months, Shomo met with a

HELLERSTEIN, J. barrage of doctors, including defendants Dr. Shahid

*1 Plaintiff Jose J. Shomo, a pro se inmate in the Nawaz, ¶¶ 35, 41; Dr. Saroja Singha,FN1 ¶¶ 39, 40, 78, 80; custody of the Department of Correctional Services of the Dr. Joy Meyers, ¶¶ 40, 44-47, 71; Dr. Marie Francois, ¶ State of New York, brings this suit pursuant to 42 U.S.C. 52; Dr. Rameem Seegobin, ¶¶ 67, 71; and various § 1983, seeking compensatory damages in the amount of unnamed doctors. $100 million relating to alleged violations of the First, FN1. Defendant identifies Dr. Singha as "Dr. Fourth, Sixth, Eighth, and Fourteenth Amendments to the Saroga Singa" in his complaint. Compl., ¶ 15. I U.S. Constitution by thirteen named defendants and 5 adopt the spelling provided by the defendants, unnamed defendants. Plaintiff bases his claims on alleged "Saroja Singha." deliberate indifference to his serious medical needs relating to his upper body paralysis and nervous system Plaintiff Shomo's allegations relate that he suffered afflictions, assault, and destruction of personal property. pain and paralysis in his arms, making it difficult or Defendants have filed a motion to dismiss pursuant to impossible to perform activities of daily living (ADLs) Fed.R.Civ.P. 12(b)(6) on the grounds that the action is such as eating, dressing, grooming, toileting, or bathing. barred by plaintiff's failure (1) to file his claim within the See, e.g., Compl., ¶¶ 33, 42-46. Medical and security staff statute of limitations; (2) to file a notice of claim to at the DOC refused to provide assistance with those preserve state law claims; (3) to allege personal activities, despite Plaintiff's repeated requests. See e.g., involvement on the part of certain defendants; (4) to Compl., ¶¶ 42-46, 50, 51, 54, 59, 66. Further, Plaintiff properly state a deliberate indifference to medical needs alleges that he was improperly housed with the general claim; (5) to properly state a destruction of property claim; population of inmates during his stays at various detention and (6) because of certain defendants' qualified immunity. facilities, when he should have been admitted to infirmary I address such assertions by defendants as are necessary to custody because of his medical condition. See, e.g., resolve this motion. Compl., ¶¶ 33, 49, 51, 56, 62-66. As a result of these

I. Background deprivations and improper treatment, Plaintiff states that he experienced "muscle spasms, migraine headaches,

From September 20, 1999 to January 4, 2001, severe back and neck pain, as well as emotional trauma." Plaintiff was in the custody of the New York City Compl., ¶ 99. In particular, Shomo alleges that since DOC Department of Corrections (DOC). Plaintiff alleges that staff would not assist with him his ADLs, he was forced to Defendant's Mot. to Dismiss at 3. pay other inmates to perform those activities for him or "remain dirty, stinking, unbathed, etc." Compl., ¶ 51. See B. The Assault Allegation also Compl., ¶ 97.

On March 11, 2000, Plaintiff alleges that after a brief *2 Shomo also alleges that an injury to his foot went exchange of words, Corrections Officer Little reached untreated by staff for a prolonged period of time, causing through the bars of his cell, and then "violently pulled him unnecessary pain and requiring Plaintiff to hop around on into the bars," Compl., ¶ 91, as well as "scratching and one foot for seven weeks while his foot healed. See clawing him." Compl., ¶ 135. As a result, Plaintiff Compl., ¶¶ 78-81, 101. Because medical staff refused to suffered severe pain to the left shoulder, lacerations, treat his foot, and because staff refused to provide Plaintiff swelling, and bruises. See Compl., ¶ 136. with a wheelchair, Plaintiff allegedly fell down several C. Destruction of Property times, causing injury to his left shoulder and ribs, as well as emotional trauma. See Compl., ¶ 102. Shomo states generally that corrections officers destroyed his personal property during searches of his cell Finally, Plaintiff alleges he suffered injury to his left and that this occurred at least 100 times between October arm as the result of corrections officers' refusal to obey 8, 1999, and January 4, 2001. See Compl., ¶ 95. Plaintiff instructions provided by the medical staff at the DOC. additionally states that he suffered physical and emotional Following a court appearance on October 7, 1999,FN2 pain after each cell search because his physical ailments Corrections Officer Pelite indicated that he intended to made it painful for him to rearrange his cell and that he handcuff Shomo to another inmate for the return trip to was compelled to pay other inmates to assist him. See Rikers Island detention facility. See Compl., ¶ 38. Plaintiff Compl., ¶ 97. then explained to Pelite that he carried medical II. Discussion instructions describing how to handcuff him. Officer Pelite then notified the area supervisor, "Captain Swartz." FN3 Id. A. Standards on a 12(b)(6) Motion to Dismiss

According to the complaint, Captain Swartz said "he didn't give a hoot" what the medical instructions said, that it was A Rule 12(b)(6) motion requires the court to too late to call special transportation, NIC or anyone else. determine whether plaintiff has stated a legally sufficient Id. He then ordered Shomo to be handcuffed to the other claim. A motion to dismiss under Rule 12(b)(6) may be inmate. Id. While handcuffed to the other inmate, Shomo granted only if "it appears beyond doubt that the plaintiff began to suffer muscle spasms. Id. He later slipped while can prove no set of facts in support of his claim which boarding the bus, causing his left arm, which was cuffed would entitle him to relief." Conley v. Gibson, 355 U.S. to the other inmate, to be wrenched upwards. Id. After 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Branum v. these incidents, Plaintiff was taken to the NIC where he Clark, 927 F.2d 698, 705 (2d Cir.1991). The court's indicated that he was feeling pain and could not move his function is "not to assay the weight of the evidence which left arm. Id. might be offered in support" of the complaint, but "merely to assess the legal feasibility" of the complaint. Geisler v. FN2. Plaintiff's complaint states that the events Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). In evaluating in this paragraph occurred on September 7, 1999, whether plaintiff may ultimately prevail, the court must but given the sequence of events he describes, it take the facts alleged in the complaint as true and draw all is clear that he meant October 7, 1999. reasonable inferences in favor of the plaintiff. See Jackson

Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697,

FN3. According to Defendant's Motion to 699-700 (2d Cir.1994). Moreover, a complaint submitted Dismiss, Captain Swartz has not been identified pro se must be liberally construed and is held to a less by the Department of Corrections. See Reply rigorous standard of review than formal pleadings drafted Mem. of Law in Further Support of City by an attorney. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Salahuddin v. Coughlin, 781 Shomo pursuant to those Acts. F.2d 24, 29 (2d Cir.1986). 1. 42 U.S.C. § 1983

B. Service of Process Congress did not provide a statute of limitations period for the filing of § 1983 claims. In the absence of *3 Corporate Counsel for the City of New York congressional specification, the Supreme Court has held accepted service of process and represents defendants City that "[w]here state law provides multiple statutes of of New York, New York City Department of Corrections, limitations for personal injury actions, courts considering William Fraser, Eric Perry, Dr. Saroja Singh, and Dr. § 1983 claims should borrow the general or residual Marie Francois. See Letter From Jordan M. Smith to Hon. statute for personal injury actions." Owens v. Okure, 488 Alvin K. Hellerstein of April 26, 2004. Corporate Counsel U.S. 235, 250 (1989). In New York, the relevant period is provided addresses for defendants Pauline Little, Dr. Joy three years. See N.Y.C.P.L.R. § 214(5) (Consol.2004); Myers, St. Barnabas Hospital, Marquita Wright, Dr. Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Shahid Nawaz, and Dr. Rameeh Seegobin. Id. In his Cir.2002) (parties stipulated that relevant period for § Opposition to Defendant Motion to Dismiss ("Plaintiff's 1983 claim was three years).

Opposition"), Shomo indicates that an attempt to serve Shomo was in prison at the time he filed this lawsuit. defendants Wright, Dr. Nawaz, Dr. Seegobin by United Pursuant to the "mailbox rule" governing pro se States Marshals did not succeed, presumably because the complaints by incarcerated litigants, Shomo filed his addresses provided by the City of New York were no complaint on September 26, 2003, the day he swore his longer accurate when the attempt was made. See Plaintiff's complaint before a Notary Public and conceivably handed Opposition ¶ 6. it to prison officials. See Dory v. Ryan, 999 F.2d 679, 682 Under ordinary circumstances, the plaintiff must serve (2d Cir.1993) (complaint deemed filed on date prisoner notice on the defendant within 120 days of filing the gives the complaint to prison officials). Under the three complaint. See Fed. R. Civ. Proc. Rule 4(m). This rule is year statute of limitations, Shomo's complaint reaches not strictly enforced in pro se prisoner cases. See Carney back to September 26, 2000. As defendants argue, v. Davis, 1991 U.S. Dist. LEXIS 10254, No. 90 Civ. however, Shomo does not identify any specific conduct by 2591, 1991 WL 150537, at *3 (S.D.N.Y.1991) (declining defendants occurring after April 14, 2000, although he to dismiss pro se prisoner's action despite three and does generally allege that defendants were deliberately one-half years delay in service). I find that Plaintiff Shomo indifferent to his serious medical needs through his release requested that U.S. Marshals serve notice on Drs. Nawaz from prison on January 4, 2001. Shomo's complaint and Seegobin within a reasonable period of time and that therefore falls under the statute of limitations. Since, he was not in a position to monitor whether they however, he also alleges continuing indifference, and succeeded in serving those defendants. I therefore direct therefore it is possible Shomo may allege a § 1983 claim Corporate Counsel for the City of New York to investigate that accrues after September 26, 2000, I allow that and provide Shomo with updated addresses for Drs. possibility, as I discuss later in this opinion.

Nawaz and Seegobin, and to confirm that Dr. Myers has been served notice, as these are the only three persons *4 Federal law governs the question of when the § against whom Plaintiff has leave to re-plead. 1983 claim accrues, even though the statute of limitations is borrowed from state law. See M.D. v. Southington Bd. C. Statute of Limitations of Educ., 334 F.3d 217, 221 (2d Cir.2003); Pearl v. City of Long Beach, 296 F.3d at 80 n. 2. Under federal law, the Plaintiff Shomo states claims under 42 U.S.C. § 1983, statute of limitations begins to run once the plaintiff knows the Civil Rights Act of 1964, the Rehabilitation Act of or has reason to know of the injury on which his claim is 1973, and the Americans with Disabilities Act of 1990. based. Comwell v. Robinson, 23 F.3d 694, 703 (2d See Compl., ¶¶ 97-136. The defendants argue that the Cir.1994) (citing Singleton v. New York, 632 F.2d 185, statute of limitations has expired for all claims made by 191 (2d Cir.1980)).

discriminatory conditions day after day, and while each For the purposes of determining when Shomo's claim day's undeserved humiliations may not independently accrued, I must first evaluate whether the doctrine of provide grounds for a lawsuit, in the aggregate the plaintiff continuing violation is applicable to his case. The doctrine has a colorable claim of discrimination. of continuing violation is available to litigants who bring Title VII employment discrimination suits and tolls the *5 Shomo's claim more closely resembles the statute of limitation such that it does not begin until the accumulation of acts that create a hostile work last injurious act. See, e.g., AMTRAK v. Morgan, 536 U.S. environment claim, than allegations of discrete acts of 101, 116-17 (2002). To date, several decisions have deliberate indifference. This is not to say that all claims of discussed, but refrained from applying, the doctrine of deliberate indifference to serious medical needs should be continuing violation to medical indifference claims. See characterized as hostile work environment claims for the Pino v. Ryan, 49 F.3d 51, 54 (2d Cir.1995) ("plaintiff has purposes of tolling the statute of limitations. In fact, many alleged no facts indicating a continuous or ongoing such claims allege discrete behavior, as when an inmate violation"); Doe v. Goord, 2004 U.S. Dist. LEXIS 24808 suffers a serious injury that demands immediate attention, (D.N.Y.2004) ( "Whether the 'continuing violation or when medical care provider acts in such a way that doctrine' should apply also need not be determined at this manifests deliberate indifference to the possibility of stage"); Griswold v. Morgan, 317 F.Supp.2d 226, 232 harm. Here, Shomo allegedly entered prison already (D.N.Y.2004) (declining to decide whether continuous suffering from a chronic neurological condition that, violation doctrine applied to deliberate medical unlike a bleeding knife wound, required attention, but not indifference claim and dismissing on other grounds); necessarily immediate attention. Moreover, it is difficult Thomas v. Wright, 2002 U.S. Dist. LEXIS 19618 to characterize an omission to provide care as a discrete (D.N.Y.2002) (same). However, in Cole v. Miraflor, 2001 act when the needed care can occur at any point during the U.S. Dist. LEXIS 1681 (D.N.Y.2001) (Sweet, J.) day or week with identical effect. When the inmate is ("Second Circuit has recognized that the rule may apply in paralyzed and unable to perform ADLs, except with great [deliberate medical indifference case]") (citing Pino v. pain and humiliation, as Shomo alleges, the desired Ryan, supra ) (emphasis added), the doctrine of continuing assistance is frequently needed, but a single failure to violation in a deliberate medical indifference case was provide it does not, by itself, cause an actionable injury. applied. I note that Cole's complaint was later dismissed on administrative exhaustion grounds. See 195 F.Supp.2d I conclude that Shomo's claim is analogous to the 496 (S.D.N.Y.2002). hostile work environment described in AMTRAK, supra, and that tolling the statute of limitations on the basis of In AMTRAK v. Morgan, supra, the United States continuing violation in the deliberate medical indifference Supreme Court clarified the doctrine of continuing context has sufficient support in this Circuit, the Supreme violation as it applied to Title VII employment Court, and in the rationale underlying the doctrine. Just as discrimination claims, holding that "[h]ostile environment the hostile work environment confronts the claimant with claims are different in kind from discrete acts." 536 U.S. daily indignations that rise to the level of a lawsuit only at 115. Discrete acts are those acts that constitute a when aggregated, so might the suffering inmate lack a "separate actionable" violation by the defendant, id. at claim on the first day the prison authorities or doctors 114, and "are not actionable if time barred, even when ignore his medical condition, and on the second day, and they are related to acts alleged in timely filed charges." Id. the third. But over a stretch of months, the prisoner's at 113. Hostile environment claims, on the other hand, suffering at the hands of indifferent corrections officers involve acts that "may not be actionable on [their] own." and medical staff might ripen into a legitimate complaint, Id. at 115. Instead, the "entire hostile work environment and in such a case, it would make sense to consider the encompasses a single unlawful employment practice," id. entire period of medical neglect, meaning that the at 117, or in other words the plaintiff's injury has a unlawful practice would end on the last day prison temporal component-he or she is subjected to authorities had a duty to provide medical care to Plaintiff Shomo. If this were true, Shomo's claim might accrue later The re-pleading, which must be served and filed within 30 than September 26, 2000, and until January 4, 2001, the days after the City makes the report required by this day he was released from prison. Shomo's claim thereby Opinion, must give specific time, place, and circumstances might come within the statute of limitations. to show that Plaintiff has a real, non-time-barred claim for relief.

Further, the doctrine of continuing violation applies even if the plaintiff became aware of the cause of action 2. Rehabilitation Act of 1973; Americans with Disability before the statute of limitations ran, so long as a related Act of 1990 act or omission that forms part of the hostile environment, or in this case, deliberate medical indifference claim, The Rehabilitation Act of 1973, 29 U.S.C. § 704, and occurred within the statute of limitations. See AMTRAK v. the American with Disability Act of 1990, 42 U.S.C. § Morgan, 536 U.S. at 117-19. Thus even if Shomo were 12132, both adopt the state residual personal injury statute aware of a complete cause of action on April 14, 2000, of limitations, which in New York is three years. See under the doctrine of continuing violation, he would not be Harris v. City of New York, 186 F.3d at 247-48. I decline required to file suit within three years of that date if related to adopt the statute of limitations analysis above for these acts or omissions of deliberate medical indifference statutes, however, because Shomo clearly lacks a cause of occurred later. See id. action under either statute.

3. Statute of Limitations as it Relates to Corrections *6 Since I hold that the doctrine of continuing Officer Little violation applies to deliberate indifference claims, I now must consider whether Plaintiff Shomo alleges facts that Unlike the provision of medical treatment, the assault enable him to invoke the doctrine. To allege continuing allegedly committed by Corrections Officer Little cannot violation, the plaintiff must "allege both the existence of be construed as part of a deliberate medical indifference an ongoing policy of discrimination and some claim. An assault is independently actionable, and as such non-time-barred acts taken in furtherance of that policy." the logic that underlies the doctrine of continuing violation Harris v. City of New York, 186 F.3d 243, 250 (2d is inapplicable. The complaint as it relates to Corrections Cir.1999). I hold, giving Shomo the pleading benefits of Officer Little is dismissed with prejudice. a pro se litigant, that Shomo has sufficiently alleged the 4. Statute of Limitations as it Relates to Captain Swartz existence of an ongoing policy of denying him medical treatment, but that he has not sufficiently alleged Although Shomo might adequately state a claim of non-time-barred acts in furtherance of the alleged policy deliberate indifference to his medical needs against of denying him medical treatment. defendant Captain Swartz, I dismiss the claim against him with prejudice for the same reasons as apply to Shomo's allegations might amount to deliberate Corrections Officer Little. Specifically, the single incident medical indifference taking place between September 20, that involved Captain Swartz, see Compl., ¶ 38, does not 1999, and April 14, 2000, but it is not clear. Shomo does fit within the larger pattern of refusal to assist with ADLs not make any specific allegations, after April 14, 2000, that form the basis for Plaintiff's continuing violation that he sought medical assistance or was improperly theory. denied care. His general allegations encompassing the 5. Statute of Limitations as it Relates to Destruction of period from January 29, 1999 to January 4, 2001, are Property Claims insufficient to allege non-time-barred acts or omissions as required by Harris v. New York, supra. *7 The doctrine of continuing violation does not apply to destruction of property claims, and since Shomo Therefore I dismiss the complaint, but in light of the does not specify any such acts after September 26, 2000, liberality accorded pro se litigants, Boag v. MacDougall, his claim is dismissed with prejudice to the extent that it 454 U.S. 364 (1982), I give Plaintiff leave to re-plead. alleges destruction of property.

D. Lack of Personal Involvement violations, they did nothing to protect him. Plaintiff's Opp., ¶ 15, and cites Brown v. Coughlin, 758 F.Supp. 786

I dismiss Plaintiff's complaint as it relates to (1991) (finding allegation against Commissioner sufficient defendants William Fraser and Eric Perry since Plaintiff to survive summary judgment). has failed to demonstrate the kind of personal involvement required to show constitutional violations. "It is well Shomo does not adequately state that Fraser and Perry settled in this Circuit that personal involvement of were aware of the violations he alleges. He does not defendants in alleged constitutional deprivations is a indicate when he complained to their offices, or what the prerequisite to an award of damages under § 1983." content of the complaint was. See Compl., ¶ 26, 73. Nor Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) does the attempt to explain how defendants Fraser and (citations omitted); see also Back v. Hastings On Hudson Perry were responsible, directly or indirectly, for the acts Union Free School Dist., 365 F.3d 107, 127 (2d Cir.2004) of the other named defendants, or the prevailing ("An individual cannot be held liable for damages under conditions that contributed to Plaintiff's injuries. § 1983 'merely because he held a high position of Therefore, Plaintiff fails to state a claim against authority,' but can be held liable if he was personally defendants Fraser and Perry and I order that the complaint involved in the alleged deprivation." (quoting Black v. against each of them is dismissed, with prejudice. Coughlin, 76 F.3d 72, 74 (2d Cir.1996))); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) ("The rule in this circuit E. Municipal Liability and the Department of Corrections is that when monetary damages are sought under § 1983, the general doctrine of respondeat superior does not *8 In order to establish the liability of a municipality suffice and a showing of some personal responsibility of in an action under § 1983 for unconstitutional acts by a the defendant is required.") (citation omitted). municipal employee below the policymaking level, a Colon instructs that the "personal involvement of a plaintiff must establish that the violation of his supervisory defendant may be shown by evidence that: (1) constitutional rights resulted from a municipal custom or the defendant participated directly in the alleged policy. Vann v. City of New York, 72 F.3d 1040, 1049 (2d constitutional violation, (2) the defendant, after being Cir.1995). To establish the violation, the plaintiff must informed of the violation through a report or appeal, failed demonstrate the existence of the policy and show that the to remedy the wrong, (3) the defendant created a policy or policy caused his injuries. See Vippolis v. Village of custom under which unconstitutional practices occurred, Haverstraw, 768 F.2d 40, 44 (2d Cir.1985) (citing or allowed the continuance of such a policy or custom, (4) Oklahoma City v. Tuttle, 471 U.S. 808, 824 n. 8 (1985)). the defendant was grossly negligent in supervising The municipal policy does not need to be an explicitly subordinates who committed the wrongful acts, or (5) the stated rule or regulation. A plaintiff may state a claim defendant exhibited deliberate indifference to the rights of against a municipality by showing that it repeatedly inmates by failing to act on information indicating that ignored complaints that would put it on notice of the unconstitutional acts were occurring." 58 F.3d at 873 alleged violations. See Vann v. City of New York, 72 F.3d (citations omitted). at 1049.

Shomo fails to identify any municipal or DOC policy

In his complaint, Shomo identifies Commissioner or custom that caused his injuries and he does not Fraser and Deputy Commissioner Perry as having effectively claim that the DOC ignored his complaints. responsibility for operating and maintaining DOC jails in Plaintiff asserts that he was not transferred to Goldwater the City of New York. See Compl., ¶¶ 5, 6. Shomo only Hospital because of a DOC policy that restricted intake at mentions these defendants again to indicate that he filed a the hospital to HIV positive patients. See Compl., ¶ 71, complaint with their respective offices alleging the 129. This policy could not have caused Shomo's injuries, violations discussed above. See Compl., ¶¶ 26, 73. In his nor did it prevent the DOC staff from assisting him with Opposition to Defendant's Motion to Dismiss, Shomo adds ADLs at the NIC or other hospitals under contract with the that although Fraser and Perry were aware of the DOC, like St. Barnabas Hospital.

recklessness," Hernandez v. Keane, 341 F.3d at 144, the

The argument that the DOC had a policy of ignoring subjective element of intent may be pleaded generally. See medical issues in general, or Shomo's medical issues in Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir., 2002). particular, fails because Shomo was seen by many doctors *9 Plaintiff Shomo does not allege medical and received numerous medical tests. Shomo's complaint malpractice, nor would such a claim be actionable under conveys that between the beginning of his confinement on Eighth Amendment law. See Smith v. Carpenter, 316 F.3d September 20, 1999 and the end of his detailed allegations 178, 184 (2d Cir.2003) ("Eighth Amendment is not a on March 11, 2000, he received attention from medical vehicle for bringing medical malpractice claims"). First, staff on nearly a weekly basis. See generally Compl., ¶¶ he claims that although various doctors ordered that he 29-91. He also received a nerve conduction study, Compl., receive assistance with his ADLs, DOC staff, including

¶ 82; a diagnostic MRI, Compl., ¶ 83; and various x-rays, nurses and corrections officers, refused to provide that Compl., ¶ 86. Plaintiff also indicates that he received assistance. Second, Shomo alleges that Drs. Myers, prescribed medication. See e.g., Compl., ¶ 39. A Nawaz, and Seegobin transferred him to general reasonable DOC supervisor or other individual with population even though they knew, on the basis of other responsibility for agency policy reviewing this record of doctors' findings, that he was unfit for general population treatment could easily conclude that Shomo was receiving living. adequate care. Plaintiff's claim against the City of New York is dismissed with prejudice. Failure of Medical Staff and Security Staff to Assist with

ADLs

Plaintiff's claim against the Department of Corrections is dismissed with prejudice as all claims against City As to the first general allegation, Shomo has not agencies shall be construed as claims against the City of named individuals who deliberately ignored medical New York. See N.Y. City Charter, Ch. 17, § 396; instructions, with the exception of the aforementioned Echevarria v. Dep't of Correctional Servs., 48 F.Supp.2d Captain Swartz, Compl., ¶ 38. Many of his allegations 388, 391 (S.D.N.Y.1999) ("suits against the DOC are suits simply state that although he requested assistance with against a non-suable entity and are properly dismissed on ADLs from medical staff and security staff, none was that basis"). given, in spite of alleged doctor's orders. See Compl., ¶¶ 45, 50, 51, 54, 59, 63, 66, 68, 70, 72, 76, 94 (medical and F. Deliberate Medical Indifference security staff refused to assist with ADLs). Shomo alleges some of his injuries in the passive voice and these The government has an obligation "to provide allegations do not name any defendant at all, except by medical care for those whom it is punishing by inference. See e.g., Compl., ¶ 56 ("Plaintiff was not incarceration." Estelle v. Gamble, 429 U.S. 97, 103 transferred to NIC despite Dr. Daniel's expressed (1976). In order to establish a claim under § 1983 for orders."); Compl., ¶ 58 ("In spite of Dr. Appel's order the failure to provide medical attention, the plaintiff must day before, Plaintiff was cleared for housing in general allege not only that he suffered from a serious injury, but population."); Compl., ¶ 58 ("Plaintiff was to receive also that the injury sustained was caused by "deliberate assistance with [ADLs]. These orders were not carried indifference" on the part of the defendants. Farmer v. out.").

Brennan, 511 U.S. 825, 832 (1994). Deliberate These allegations do no more than provide context to indifference might be found when an official "knows of Shomo's complaint. The plaintiff, however, must identify and disregards an excessive risk to inmate health or safety; the party responsible for his injuries, and Shomo does not the official must both be aware of facts from which the do this with respect to the medical and security staff's inference could be drawn that substantial risk of serious alleged failure to assist with ADLs. I evaluate the harm exists, and he must also draw that inference. Id. at deliberate indifference to serious medical needs claims as 834. Though a plaintiff must prove at trial that the to each of the named individuals who could possibly defendant had a state of mind "equivalent to criminal remain in the suit below.

with conscious disregard of the substantial risk of serious

St. Barnabas Hospital harm. See Hernandez v. Keane, 341 F.3d at 144. Although Plaintiff is not required to plead that Dr. Singh acted with Plaintiff Shomo identifies St. Barnabas Hospital ("the the "very purpose of causing harm," Farmer v. Brennan, hospital") in paragraphs 119, 124, 125, 126, and 129, 511 U.S. at 835, he must at least attempt to show that Dr. arguing that the hospital had institutional responsibility to Singh was aware of the substantial risk of harm to the ensure that medical staff provided proper care and that the defendant and chose to ignore it. Shomo concludes that hospital failed to provide that level of care. I assume, Dr. Singh's failure to provide more extensive treatment without deciding, that the hospital acts under color of state resulted in the loss of the use of his left arm, Compl., ¶ law with respect to DOC inmates and is therefore subject 110 but other parts of his complaint undermine this to claims under § 1983. assertion. In particular, Shomo's complaint describes

The hospital is subject to the supervisory defendant substantial neurological problems affecting his left arm analysis of Colon, supra. Shomo does not adequately that pre-dated his interaction with Dr. Singh, and indeed, explain how the hospital created a policy or custom under appear to pre-date his incarceration. See Compl., ¶ 31 which unconstitutional practices occurred, allowed the (Plaintiff's medical records showed that he received continuance of such a policy or custom, was grossly "Home Health" services); Compl., ¶ 36 (Physician's negligent in supervising subordinates who committed the Assistant Pitchford issued medical instructions ... "to wrongful acts, or exhibited deliberate indifference to the prevent further neurological damage to Plaintiff's left rights of inmates by failing to act on information arm."). On the face of Shomo's pleading, therefore, it is indicating that unconstitutional acts were occurring. clear that Dr. Singh was not the cause of the neurological Colon, 58 F.3d at 873. It is not apparent from Shomo's damage to his left arm, and given the nature of his complaint that any supervising authority at the hospital condition, it seems highly unlikely that Dr. Singh was in a was aware that medical staff refused to comply with position to make it worse when she treated him on several doctors' instructions, or that the hospital created or different occasions. The complaint is dismissed with fostered a policy that would encourage medical staff to prejudice as it relates to Dr. Singh. refuse to comply. The complaint is dismissed with respect Dr. Marie E. Francois to St. Barnabas Hospital.

Plaintiff Shomo identifies Dr. Francois two times in Dr. Saroja Singh his complaint, in paragraph 20, declaring that she is a physician with responsibility for treating inmates, and in *10 Plaintiff Shomo identifies Dr. Saroja Singh in paragraph 52, alleging that Dr. Francois denied him a paragraphs 15, 39, 40, 78, 80, 110, and 111, alleging that second opinion following the results of an examination Dr. Singh refused to examine him, Compl., ¶ 39; and that indicated that he was able to perform ADLs. Shomo denied his request for a second opinion, Compl., ¶ 39, clearly fails to state a claim against Dr. Francois, since 110. Shomo's claim against Dr. Singh falls short because prisoners are not constitutionally entitled to a second he indicates that during his medical appointments Dr. medical opinion. See Smith v. McGinnis, 2003 U.S. Dist. Singh asked him questions about his condition and LEXIS 25768 *13-14 (doctor's decision not to seek prescribed him medication. At most, Shomo alleges that second opinion not deliberate indifference to serious Dr. Singh was negligent in giving treatment, and medical needs). The complaint is dismissed with prejudice "negligence, even if it constitutes medical malpractice, as it relates to Dr. Francois. does not, without more, give rise to a constitutional Physician Assistant Marquita Wright FN4 claim." Smith v. McGinnis, 2003 U.S. Dist. LEXIS 25768 (D.N.Y.2003) (citing Neitzke v. Williams, 490 U.S. 319, FN4. Plaintiff identifies defendant Wright as 321-22 (1989)). To rise to the level of medical "Dr. Wright;" corporate counsel for the City of indifference, however, the defendant must have been New York identifies the defendant as Physician aware of the condition and deliberately refused to treat it Assistant Marquita Wright. I adopt the defendant's title for Ms. Wright. Shomo alleges that each of the named doctors was aware that other doctors had found that he needed *11 Plaintiff Shomo identifies Ms. Wright in assistance with ADLs. See Compl ., ¶ 120 ("in spite of paragraph 19 and her name does not appear again the having reviewed various medical records from outside complaint. The complaint is dismissed as it relates to Ms. hospitals [and] diagnostic test results indicating Plaintiff's Wright. need for assistance with ADLs, Dr. Nawaz and Dr. Seegobin ordered Plaintiff discharged from infirmary

Dr. Joy Myers,FN5 Dr. Shahid Nawaz,FN6 and Dr. Rameeh care"); Compl., ¶ 121 (same allegation repeated for Drs. Seegobin FN7 Myers and Seegobin). As physicians, these individuals would have known of and disregarded "an excessive risk FN5. Dr. Myers appears in paragraphs 14, 44-47, to inmate health or safety," Farmer v. Brennan, 511 U.S. 71, 113, 121, 125, and 129. at 834, by transferring Shomo to general population where he was unable to eat or bathe because of his upper FN6. Dr. Nawaz appears in paragraphs 17, 35, extremity paralysis. Shomo persistently requested 41, 64, and 120. assistance with ADLs, and multiple doctors agreed that his condition necessitated that assistance. Each doctor was FN7. Dr. Seegobin appears in paragraphs 18, 67, aware of these facts from which the inference could be 71, 120, 121, and 129. drawn that a substantial risk of serious harm existed.

Plaintiff Shomo is granted leave to re-plead his claim Shomo alleges that he suffered serious physical pain as it relates to Drs. Myers, Nawaz, and Seegobin. The and emotional trauma as a result of his residence in the sequence of events he describes fulfills the requirements general population with medical care. He also alleges that to state a deliberate indifference to medical needs claim the refusal of medical and security staff to assists with under § 1983. Shomo alleges that these doctors ordered ADLs deprived him of the conditions of basic human his discharge from the infirmary to the prison general decency. See e.g., Compl., ¶ 114 (Plaintiff could not population while fully aware that he was incapable of comply with strip searches, forced to eat like a dog, pay performing ADLs. See Compl., ¶ 113 (Dr. Myers); other inmates to assist him with toileting, bathing, and Compl., ¶ 120 (Drs. Nawaz and Seegobin). washing clothes). Although these consequences "do not inevitably entail pain" they may nevertheless fail to On October 13, 1999, an unnamed neurologist at comport with contemporary standards of decency. See Bellevue Hospital determined that Shomo was capable of Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996) performing ADLs after performing a "non focal exam." (deprivation of medically-prescribed eyeglasses See Compl., ¶ 48, 113. Following this exam, however, sufficiently serious to violate the Eighth Amendment). multiple doctors determined that Plaintiff required assistance with ADLs. See Compl., ¶ 55 (Dr. Vettigunta III. Conclusion on November 2, 1999); Compl., ¶ 56 (Dr. Daniel on November 4, 1999); Compl., ¶ 57 (Dr. Appel on *12 The complaint is dismissed with prejudice as it November 4, 1999); Compl., ¶ 62 (Dr. Yeager on relates to defendants City of New York, New York City November 20, 1999). On February 11, 2000, Dr. Ismaila Department of Corrections, Commissioner William Fraser, Adiatu found that Plaintiff was declared fit for general Deputy Commissioner Eric Perry, Captain Swartz, population "due to a medical error." See Compl., ¶ 84. Corrections Officer Little, St. Barnabas Hospital, Finally, on March 8, 2000, Dr. Adiatu "emphasized that Marquita Wright, Dr. Saroja Singh, and Dr. Marie Plaintiff's case should be reviewed [at] the highest level, Francois. The complaint is dismissed without prejudice because Plaintiff was not receiving the proper care." and Shomo is given leave to re-plead as it relates to Compl., ¶ 90. defendants Dr. Joy Myers, Dr. Shahid Nawaz, and Dr. Rameeh Seegobin.

Corporate Counsel for the City of New York is directed to determine the current addresses of defendants Drs. Myers, Nawaz, and Seegobin, and to ascertain whether they have been served with notice. Corporate Counsel shall file a report with Plaintiff and this Court containing the service of notice status of remaining defendants and their addresses within 30 days.

Plaintiff is advised that although he is granted leave to re-plead against Drs. Myers, Nawaz, and Seegobin, he must allege specific acts causing injuries committed by or at the instruction of one or more of those individuals occurring after September 26, 2000, in order to come within the continuing violation doctrine he seeks to invoke. If he fails to do so on re-pleading, his complaint will be dismissed with prejudice. The re-pleading must be filed within 30 days after the City files its report with the Plaintiff and this Court.

The Clerk of the Court Shall mark this case as closed.

SO ORDERED.

S.D.N.Y.,2005.

Shomo v. City of New York Not Reported in F.Supp.2d, 2005 WL 756834 (S.D.N.Y.) END OF DOCUMENT of a series of events that occurred at Great Meadow Correctional Facility in 2006 and 2009. (Dkt. No. 1.)

A. Incidents in 2006

Only the Westlaw citation is currently available.

United States District Court, In his verified complaint, Plaintiff alleges that on December 28, 2006, Defendant Physician Assistant Fisher N.D. New York. Nesmith stopped at his cell during sick-call rounds. (Dkt. Philip DeBLASIO, Plaintiff, No. 1 at 11.) Plaintiff told Defendant Nesmith that he v. needed to see the doctor for his chronic back pain and David ROCK, et al., Defendants. herniated discs. Id. Defendant Nesmith would not allow No. 9:09--CV--1077 (TJM/GHL). Plaintiff to see the doctor. Id. at 12. This happened "several times" again after December 28, 2006. Id.

Sept. 26, 2011. Plaintiff alleges that on December 28, 2006, Philip Deblasio, Romulus, NY, pro se. Defendant Correction Officer Kevin Holden was assigned to pack Plaintiff's personal belongings because Plaintiff Hon. Eric T. Schneiderman, Attorney General for the State was moving to a new cell. (Dkt. No. 1 at 12.) Thereafter, of New York, Adele M. Taylor--Scott, Esq., of Counsel, pages were missing from each of Plaintiff's three copies of Albany, NY, for Defendants. the Koran. Id. One of the three Korans had to be destroyed because it was missing so many pages. Id. Plaintiff alleges MEMORANDUM DECISION AND ORDER that Defendant Holden is "defin[i]tely responsible" for the missing pages because he "was the only person to pack THOMAS J. McAVOY, Senior District Judge. [P]laintiff's property ..." Id.

*1 In this pro se prisoner civil rights action, filed pursuant to 42 U.S.C. § 1983, Plaintiff Philip DeBlasio B. Incident with Extraction Team alleges that twenty-three employees of the New York Department of Corrections and Community Supervision Plaintiff alleges that one night in early August 2009 ("DOCCS") violated his constitutional rights by denying FN1, he complained of sharp pains in his left ribcage area him adequate medical care, interfering with his right to and blood in his urine.FN2 (Dkt. No. 1 at 12.) Defendant exercise his religion, subjecting him to excessive force, Correction Officer Kelsey Lenney told Plaintiff he would and subjecting him to unconstitutional conditions of call a nurse.FN3 Id. After speaking to Defendant Nurse confinement. (Dkt. No. 1.) Currently pending is Della Howley, Defendant Lenney returned twenty minutes Defendants' motion for summary judgment. (Dkt. No. 55.) later and asked Plaintiff if he had requested a sick call. Id. Plaintiff has not opposed the motion, despite having been at 12--13. Plaintiff was enraged and started banging the advised of the consequences of failing to do so and having gate and asking to see a sergeant. Id. at 13. When been granted four extensions of the deadline by which to Defendant Sergeant John Busse responded to the scene, do so. (Dkt. No. 55 at 3; Jan. 19, 2011, Text Order; Feb. Plaintiff explained the situation and Defendant Busse said 16, 2011, Text Order; Mar. 31, 2011 Text Order; June 27, he would take care of it. Id. Two hours after Plaintiff had 2011, Text Order.) For the reasons that follow, first complained of the pain, Defendant Howley arrived at Defendants' motion for summary judgment is granted in his cell "with a very negative attitude." Id. Plaintiff "was part and denied in part. so mad she wouldn't help him [that] he threw water at her

I. BACKGROUND

and hit [Defendant] Lt. Richard Juckett as well." Id. FN1. Plaintiff's allegations about the precise Plaintiff, an inmate currently in DOCCS custody at dates on which the incidents in the complaint Five Points Correctional Facility, complains in this action occurred are contradictory. Early in the the extraction team beat him with their fists for about a complaint, he alleges that he complained of the minute. (Dkt. No. 55--16 at 84:17--24, 86:24--87:10.) pain in his ribcage on "8--7--09." (Dkt. No. 1 at 12.) Later in the complaint, he says that "the next FN4. The Residential Crisis Treatment Program, day" after the event was "9--7--09" and refers to often referred to as "OBS", is a special it as "Friday morning of the same day." (Dkt. No. observation area for inmates who cannot be 1 at 14.) September 7, 2009, was a Monday. controlled by security officers or who become August 7, 2009, was a Friday. These unmanageable, suicidal, or homicidal. (Dkt. No. discrepancies need not be resolved because the 55--2 ¶¶ 4--5.) precise dates are irrelevant to the issues in this case. Defendants assert that they did not use any force on

Plaintiff. Defendant Dempster declares that the only

FN2. Defendant Lenney declares that Plaintiff physical contact that any member of the extraction team complained to him of pain in his side but did not had with Plaintiff during the cell extraction was when mention anything about blood in his urine. (Dkt. Defendant Buell placed Plaintiff's wrists and legs in No. 55--9 ¶¶ 4--5.) restraints. (Dkt. No. 55--5 ¶ 10; Dkt. No. 55--8 ¶ 18.)

Defendant Dempster declares that Plaintiff "voluntarily

FN3. Defendant Lenney declares that he did, complied with [a] strip frisk, which is standard procedure indeed, call Defendant Howley about Plaintiff. for inmates being processed into" the mental health unit. (Dkt. No. 55--9 ¶ 4.) Defendant Howley declares (Dkt. No. 55--5 ¶ 12; Dkt. No. 55--8 ¶¶ 20--21.) After that that she does not recall having a conversation was done, the team "escorted [P]laintiff to an observation with "the Correction Officer on duty" but that cell," which was "accomplished without incident." (Dkt. she remembers receiving a telephone call from No. 55--5 ¶¶ 13--14.) Defendant Juckett declares that Defendant Juckett asking her to check on "[t]he only physical contact that I or any member of the Plaintiff. (Dkt. No. 56 ¶¶ 6--7.) extraction team had with Inmate DeBlasio that day was to place him in restraints, conduct a pat frisk, and be present *2 After Plaintiff threw the water, an extraction team when the inmate was subject to strip frisk." (Dkt. No. was mobilized to remove him from his cell. (Dkt. No. 1 at 55--8 ¶ 25.) Defendant Lenney declares that he "had no 13.) This team included Defendant Juckett, Defendant physical contact with inmate DeBlasio at all." (Dkt. No. Busse, Defendant Correction Officer Adam Rivers, 55--9 ¶ 20.) Defendant Rivers declares that he "had no Defendant Lenney, Defendant Correction Officer Richard physical contact with inmate DeBlasio during this Dempster, and Defendant Correction Officer Richard engagement." (Dkt. No. 55--11 ¶ 13.)

Buell. Id.

After Plaintiff was secured in the observation cell, the

According to Plaintiff, Defendant Juckett told extraction team members left the area, returned to their Plaintiff that "he was going to OBS FN4 one way or the regular duties, and did not see Plaintiff again that day. other" even if Defendant Juckett "had to drag [P]laintiff (Dkt. No. 55--5 ¶¶ 15--16; Dkt. No. 55--3 ¶¶ 13--14; Dkt. out of the cell himself." Id. Plaintiff told Defendant No. 55--8 ¶ 22; Dkt. No. 55--9 ¶ 21; Dkt. No. 55--1 ¶ 12.) Juckett that he was "not suicidal and should be sent to No paperwork was prepared documenting a use of force. F--Block" as originally scheduled. Id. Defendant Juckett (Dkt. No. 55--11 ¶ 14.) It is standard procedure to prepare "was then just about to spray [P]laintiff in the face when a Use of Force Report when force is used on an inmate. Id. [P]laintiff pleaded with him to take him out without gas[s]ing him ..." Id. In the complaint, Plaintiff alleges that Plaintiff alleges that after the extraction team left, he the extraction team moved him to an observation room remained in the observation cell all night without any and then beat him with sticks, their fists, and their feet. Id. medical attention or treatment. (Dkt. No. 1 at 13.) At his At his deposition, Plaintiff testified that the members of deposition he testified that he suffered only from "discomfort [and] bruises" as a result of the incident. (Dkt. to handle medications and suicide prevention" and that No. 55--16 at 83:6--8.) About twenty-four hours after the because Plaintiff threw water at Defendant Howley he incident, Plaintiff complained to an officer of chest pains. "may have deserved" what happened. Id. Plaintiff alleges (Dkt. No. 56 at 2 ¶ 15, 5.) Plaintiff allowed Defendant that Defendant Wetherell "refused to comment or help Howley to examine him. Id. Plaintiff told Defendant [Plaintiff] in any way at all." Id. Plaintiff alleges that he Howley only that he had indigestion. Id. Defendant called Defendant Wetherell "a snake sellout C.O. bitch" Howley found that Plaintiff had "no signs of distress." Id. and she stormed out of the room and talked to Defendant

Correction Officer Scott Hamel. Id. Dr. Battu declares that

C. Incident at Conference Room Plaintiff "became verbally abusive to Sarah Wetherell, nearly bringing her to tears, and when I tried to calm him *3 The day after the incident with the extraction team, down, [P]laintiff became abusive toward me." (Dkt. No. Defendant Correction Officer Scott Hamel escorted 55--2 ¶ 14.) Dr. Battu declares that Plaintiff's behavior Plaintiff to a conference room to be interviewed by "brought the interview to an end. The officer waiting Defendant Dr. Battu FN5 and Defendant Social Worker outside moved in and escorted [P]laintiff out." (Dkt. No. Sarah Wetherell.FN6 (Dkt. No. 1 at 14.) Dr. Battu had been 55--2 ¶ 15.) Defendant Wetherell declares that when "the asked to see Plaintiff to "possibly prescribe medications to session started to get hostile, the RCTP Coordinator stood control his behavior or adjust medications that were up, and in doing so triggered a prearranged signal to already prescribed." (Dkt. No. 55--2 ¶ 9.) Dr. Battu often security personnel to move in." (Dkt. No. 55--20 ¶ 19.) performs such interviews alone, but was accompanied by Defendant Wetherell "[b]ecause of the violent nature of Plaintiff alleges that Defendant Hamel entered the this inmate." Id. ¶ 10. Defendant Wetherell had "worked conference room and rushed Plaintiff into a cell. (Dkt. No. with [P]laintiff for a number of years ... and [was] familiar 1 at 14.) Defendant Hamel declares that he entered the with his history and patterns of behavior." (Dkt. No. conference room because "I believe I observed [Plaintiff] 55--20 ¶ 3.) Defendant Wetherell declares that the RCTP stand up during the interview in disobedience of my direct Coordinator was also present. (Dkt. No. 55--20 ¶ 13.) order to him not to do so. When the inmate stood up, I

FN5. The parties spell this defendant's name in a automatically moved in, took control of the restraints, and variety of ways. In his declaration, he refers to escorted him out of the room and back to his observation himself as Kalyana Battu. (Dkt. No. 55--2 at 1.) cell." (Dkt. No. 55--7 ¶ 9.) Defendant Murray declares that Therefore, I have used that spelling. when a "problem occurred in the interview room," he supervised Defendant Hamel as Defendant Hamel escorted FN6. The parties spell this defendant's name in a Plaintiff back to his cell and Defendant Stemp joined them variety of ways. In her declaration, she refers to "to provide additional security coverage." (Dkt. No. herself as Sarah Wetherell. (Dkt. No. 55--20 at 55--10 ¶¶ 7--9.) 1.) Therefore, I have used that spelling.

*4 The parties dispute what happened next. Defendant

Defendant Sergeant Crispin Murray declares that he Hamel declares that before he placed Plaintiff in his cell, supervised Defendant Hamel as he escorted Plaintiff to the he asked him if he wanted to take a shower because appointment. (Dkt. No. 55--10 ¶ 5.) Once Plaintiff was in inmates in the observation unit generally take showers on the conference room, Defendant Murray moved to a desk Mondays, Wednesdays, and Fridays. (Dkt. No. 55--7 ¶ several feet away from the door to the room. (Id. ¶ 6; Dkt. 10.) Defendant Hamel declares that Plaintiff declined and No. 55--2 ¶ 11.) then turned and head-butted him, hitting Defendant

Hamel's forehead just over his left eye and splitting the

Plaintiff alleges that he told Defendants Battu and skin open. Id. ¶ 11. Defendants Murray and Stemp also Wetherell about the incident with the extraction team. declare that Plaintiff head-butted Defendant Hamel. (Dkt. (Dkt. No. 1 at 14.) He alleges that Defendant Battu said No. 55--10 ¶ 10; Dkt. No. 55--19 ¶ 6.) Defendant Hamel that it was none of his concern because he was just "there declares that he "instinctively" pushed Plaintiff "forward and down to the floor with my left hand" and that Plaintiff deposition, Plaintiff testified that he did not do anything to banged his head on the way down. (Dkt. No. 55--7 ¶ 12.) any of the officers until Defendant Murray removed his Defendant Hamel declares that Plaintiff did not stay down handcuffs and punched him in the face. Plaintiff testified and kept kicking and trying to bite Defendant Hamel. Id. that it was only then that "I put my hands up and I started ¶ 13. Defendant Murray declares that he ordered fighting with him." (Dkt. No. 55--16 at 99:12--100:17.) Defendant Stemp to "go in and pull the inmate out of the cell so they could get control of him." (Dkt. No. 55--10 ¶ *5 When the relief officers arrived, Defendants 13.) Defendant Hamel declares that he and Defendant Murray, Stemp, and Hamel escorted Plaintiff to the clinic Stemp "used the wrist restraints to lift [Plaintiff] out of the to be examined for injuries. (Dkt. No. 55--10 ¶ 17.) cell and onto the floor in the hallway." (Dkt. No. 55--7 ¶ Plaintiff and the officers were examined and photographed 16.) Defendant Hamel declares that once Plaintiff was on and Defendant Murray completed a Use of Force Report. the floor in the hallway, he took control of Plaintiff's legs (Dkt. No. 55--10 ¶ 18.) Medical records show that Plaintiff while Defendant Stemp took control of Plaintiff's upper suffered bruises on his right shoulder, red cheeks, a body. Id. ¶ 17. Defendant Stemp declares that he took quarter-sized bump on his scalp, two raised areas on the control of Plaintiff's upper body by putting one knee on his back of his scalp, and a bruised ear. (Dkt. No. 55--7 at 7.) back and the other on his head until he calmed down. (Dkt. No. 55--19 ¶ 10.) Defendant Hamel declares that D. Conditions of Confinement Plaintiff calmed down and they all remained that way until Defendant Hamel and Defendant Stemp were relieved by Plaintiff alleges that after this incident he was other staff. (Dkt. No. 55--7 ¶ 18.) subjected to various harsh conditions of confinement.

(Dkt. No. 1 at 15.)

Defendant Stemp declares that he "used only such 1. Handcuff Incident with Defendant Segovis force as was necessary to subdue the inmate. Nobody kicked, punched or otherwise asserted unnecessary force Plaintiff alleges that on August 18, 2009, Defendant against" Plaintiff. (Dkt. No. 55--19 ¶ 13.) Defendant Correction Officer Roswell Segovis handcuffed Plaintiff Murray declares that he "personally did not have any to take him to the shower. (Dkt. No. 1 at 15.) Defendant physical contact with the inmate." (Dkt. No. 55--10 ¶ 16.) Segovis noticed that Plaintiff was wearing socks and Defendant Murray declares that given Plaintiff's refused to let him shower. Id. He then left Plaintiff "unprovoked assault on the escorting officer, his attempts handcuffed in his cell for five hours. Id . Plaintiff pleaded to further assault the officer during the course of the with Defendant Segovis to remove the handcuffs so that he take-down, and his refusal to comply with staff direction, could use the bathroom. Id. Defendant Segovis refused I do not believe that ... the actions of the men under my and after several hours Plaintiff "had no choice but to wet supervision violated any of [P]laintiff's federally protected his pants and then defecate on himself." Id. Defendant rights." Id. ¶ 21. Segovis declares that he left Plaintiff handcuffed because Plaintiff "took the handcuffs hostage and refused to put his Plaintiff's version of this incident is quite different. In hands through the feed-up slot so that they could be his verified complaint, Plaintiff alleges that after removed." (Dkt. No. 55--18 ¶ 4.)

Defendant Hamel escorted him to his cell, Defendants Later, Defendant Segovis issued a misbehavior report Stemp and Murray came into the cell. (Dkt. No. 1 at 14.) charging Plaintiff with committing an unhygienic act. Plaintiff alleges that Defendant Murray removed Plaintiff's (Dkt. No. 1 at 15.) The hearing officer sentenced Plaintiff handcuffs, said "how tough are you now disrespecting to seven days of restricted diet. Id. Defendant First Deputy Nurse Howley and Wetherell and Dr. Battu," and slapped Superintendent Jeffrey Tedford "co-signed" the order for Plaintiff on the left side of his face with an open hand. Id. restricted diet. Id. The punishment "was brought to the All of the officers then beat Plaintiff, got him onto his attention" of Defendant Sergeant David Winchip, who stomach, handcuffed him, and kicked him several more "was going along with the entire [charade]." Id. times in the face, head, and body. Id. at 14--15. At his 2. Hot Water August 18, 2009, because, as discussed above, he alleges that he was handcuffed in his cell from Plaintiff alleges that he was not able to get hot water 8:00 a.m. to 1:00 p.m. (Dkt. No. 1 at 15.) because he was not given a bucket. (Dkt. No. 1 at 17.) On August 19, 2009, Plaintiff asked Defendant Sergeant Peter Plaintiff alleges that on one occasion, Defendant DePalo for hot water. (Dkt. No. 1 at 17.) Defendant Segovis gave Plaintiff pork instead of the special diet loaf. DePalo said "Muslims don't deserve hot water. You'll get Id. Defendant Segovis said "You know you want to eat that when you get to hell." Id. On August 24, 2009, some swine." Id. at 18.

Plaintiff told a watch commander, in the presence of Defendant Winchip, that he was not receiving hot water. 5. Recreation and Movement Id. at 18. Defendant Winchip said he would see to it that Plaintiff got a bucket for hot water. Id. Later that day, Plaintiff alleges that he was not allowed to move Defendant Winchip came to Plaintiff's cell and said "You outside his cell at all when Defendant Segovis was won't get that bucket[ ] today you dirty white Muslim assigned to his block. (Dkt. No. 1 at 17.) wigger." Id. 6. Showers 3. Drinking Water

Plaintiff alleges that on one occasion, Defendant

Plaintiff alleges that he once went without water for Segovis would not allow Plaintiff to shower. Id. When a week. (Dkt. No. 1 at 15.) He alleges that during the week Plaintiff reported this to Defendant DePalo, he said that he went without water, Defendant Correction Officer "That's life in F-block for Muslims." Id.

William Powers was responsible for turning on Plaintiff's 7. Bibles water and failed to do so. (Dkt. No. 1 at 6.) At his deposition, Plaintiff testified that Defendant Segovis was Plaintiff alleges that on August 31, 2009, a chaplain also responsible. (Dkt. No. 55--16 at 150: 2--5, 6--9.) came to Plaintiff's cell to deliver two Bibles. (Dkt. No. 1 4. Food at 16.) Defendants Powers and Segovis told the chaplain to leave the Bibles and that they would give them to *6 Plaintiff alleges that on August 18, 2009, Plaintiff when they were not busy. Id. Defendant Powers Defendant Correction Officer Alan W hite and Defendant came to Plaintiff's cell and "said [he] was banging all Segovis played with Plaintiff's breakfast tray and Plaintiff day." Id. Plaintiff said it was not him who was banging. Id. had to plead with them in order to get it. (Dkt. No. 1 at Defendant Powers said he would investigate and that 16.) At lunch FN7 Defendant White gave Plaintiff only a Plaintiff would not be getting his Bibles. Id. On or about quarter cup of juice to drink and no lunch tray. Id. Later, September 8, 2009, Defendant Powers came to Plaintiff's Defendant DePalo came to Plaintiff's cell asking for the cell, told him he had discovered that it was not Plaintiff empty lunch tray. Id. Plaintiff told him that he was never who was banging, and apologized. Id. However, he did not given a lunch tray. Id. Defendant DePalo looked under give Plaintiff his Bibles. Id. The record shows that Plaintiff's bed and did not see a tray. Id. That night at Plaintiff received the Bibles on September 12, 2009.FN8 dinner an officer served Plaintiff a special diet loaf instead (Dkt. No. 55--6 at 28.) of regular food and told him that he would receive it for FN8. Plaintiff signed the complaint in this action seven days as punishment for not giving back his lunch on September 10, 2009. (Dkt. No. 1.) Thus, he tray. Id. This punishment was ordered by Defendants had not received the Bibles when he wrote the White and Segovis and "co-signed" by Defendant DePalo. complaint. Because Plaintiff has not opposed the Id. at 17. Plaintiff asserts that Defendants White and motion for summary judgment, it is unclear Segovis "have a history" with him and "blatantly whether he wishes to continue asserting the claim harass[ed]" Plaintiff "to disturb his Fast of Ramadan." Id. regarding the Bibles. at 16--17.

FN7. It is unclear when Plaintiff went to lunch on E. Restrictions on Religious Practice Plaintiff claims that Defendant Superintendent David Zenith Radio Corp., 475 U.S. 574, 585--86, 106 S.Ct. Rock and Defendant CORC Director Karen Bellamy 1348, 89 L.Ed.2d 538 (1986). Rather, a dispute regarding violated his religious rights in three ways. (Dkt. No. 1 at a material fact is genuine "if the evidence is such that a 18.) First, he alleges that he was not allowed to reasonable jury could return a verdict for the nonmoving demonstratively pray in the BHU recreation pen. Id . party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, Plaintiff alleges that Defendant Rock allows Christians to 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In pray but "is obviously discriminating against the Muslims" determining whether a genuine issue of material FN9 fact by prohibiting demonstrative prayer. Id. at 18--19. Second, exists, the Court must resolve all ambiguities and draw all he alleges that BHU and SHU inmates are not allowed to reasonable inferences against the moving party. Major have razors, which prevents Muslims from shaving their League Baseball Props., Inc. v. Salvino, 542 F.3d 290, pubic and armpit hair as required by their faith. Id. at 19. 309 (2d Cir.2008).

Third, Plaintiff alleges that he is not given Halal food. Id.

F. Procedural History FN9.

A fact is "material" only if it would have some effect on the outcome of the suit. *7 Plaintiff filed his complaint in this Court on Anderson, 477 U.S. at 248.

September 23, 2009. (Dkt. No. 1.) Plaintiff's complaint sets forth three causes of action: (1) religious When a plaintiff fails to respond to a defendant's discrimination; (2) "assault and cruel and unusual motion for summary judgment, "[t]he fact that there has punishment at the hands of DOCS workers"; and (3) a been no [such] response ... does not ... mean that the request that Plaintiff receive "proper medical attention at motion is to be granted automatically." Champion v. all times." (Dkt. No. 1 at 20.) Plaintiff requests injunctive Artuz, 76 F.3d 483, 486 (2d Cir.1996). Rather, the Court relief (being allowed to pray in the recreation pen, being must (1) determine whether any facts are disputed in the allowed to shave his pubic hair, and given Halal food) and record presented on the defendants' motion, and (2) damages. Id. at 21. determine whether, based on the undisputed material facts, Defendants now move for summary judgment. (Dkt. the law indeed warrants judgment for the defendants. See No. 55.) Plaintiff has not opposed the motion. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232

II. APPLICABLE LEGAL STANDARDS (N.D.N.Y.2001); N.D.N.Y. L.R. 7.1(b)(3).

A. Legal Standard Governing Unopposed M otions for B. Legal Standard Governing M otions to Dismiss for Summary Judgment Failure to State a Claim Under Federal Rule of Civil Procedure 56, summary To the extent that a defendant's motion for summary judgment is warranted if "the movant shows that there is judgment under Federal Rule of Civil Procedure 56 is no genuine issue as to any material fact and that the based entirely on the allegations of the plaintiff's movant is entitled to judgment as a matter of law." complaint, such a motion is functionally the same as a Fed.R.Civ.P. 56(a). The party moving for summary motion to dismiss for failure to state a claim under Federal judgment bears the initial burden of showing, through the Rule of Civil Procedure 12(b)(6). As a result, "[w]here production of admissible evidence, that no genuine issue appropriate, a trial judge may dismiss for failure to state a of material fact exists. Only after the moving party has met cause of action upon motion for summary judgment." this burden is the nonmoving party required to produce Schwartz v. Compagnise Gen. Transatlantique, 405 F.2d evidence demonstrating that genuine issues of material 270, 273 (2d Cir.1968) (citations omitted); accord, Katz fact exist. Salahuddin v. Goord, 467 F.3d 263, 272--73 (2d v. Molic, 128 F.R.D. 35, 37--38 (S.D.N.Y.1989) ("This Cir.2006). The nonmoving party must do more than "rest Court finds that ... a conversion [of a Rule 56 summary upon the mere allegations ... of the [plaintiff's] pleading" judgment motion to a Rule 12(b)(6) motion to dismiss the or "simply show that there is some metaphysical doubt as complaint] is proper with or without notice to the to the material facts." Matsushita Elec. Indus. Co. v. parties."). Accordingly, it is appropriate to summarize the legal standard governing Federal Rule of Civil Procedure Defendant Holden ripped pages from Plaintiff's Korans. 12(b)(6) motions to dismiss. (Dkt. No. 1 at 11--12.) Defendants argue that these claims *8 A defendant may move to dismiss a complaint should be dismissed because Plaintiff failed to exhaust his under Federal Rule of Civil Procedure 12(b)(6) on the administrative remedies. (Dkt. No. 55--23 at 13--14.) ground that the complaint fails to state a claim upon which Defendants are correct. relief can be granted. In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, Under the Prison Litigation Reform Act ("PLRA"), "a short and plain statement of the claim showing that the "[n]o action shall be brought with respect to prison pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The conditions under section 1983 ... by a prisoner confined in requirement that a plaintiff "show" that he or she is any jail, prison, or other correctional facility until such entitled to relief means that a complaint "must contain administrative remedies as are available are exhausted." sufficient factual matter, accepted as true, to 'state a claim 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion to relief that is plausible on its face.' " Ashcroft v. Iqbal, requirement applies to all inmate suits about prison life, ------ U.S. --------, --------, 129 S.Ct. 1937, 1949, 173 L.Ed.2d whether they involve general circumstances or particular 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. episodes, and whether they allege excessive force or some 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 (emphasis added). "Determining whether a complaint S.Ct. 983, 152 L.Ed.2d 12 (2002). In order to properly states a plausible claim for relief ... requires the ... court to exhaust administrative remedies under the PLRA, inmates draw on its judicial experience and common sense ... are required to complete the administrative review process [W]here the well-pleaded facts do not permit the court to in accordance with the rules applicable to the particular infer more than the mere possibility of misconduct, the institution to which they are confined. Jones v. Bock, 549 complaint has alleged-but it has not shown-that the U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In pleader is entitled to relief." Id. at 1950 (internal citation New York state prisons, the Department of Corrections and punctuation omitted). and Community Supervision ("DOCCS") has a well-established three-step inmate grievance program. "In reviewing a complaint for dismissal under Rule N.Y. Comp.Codes R. & Regs. tit. 7, § 701.7 (2010). 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable *9 Generally, the DOCCS Inmate Grievance Program inferences in the plaintiff's favor ." Hernandez v. ("IGP") involves the following procedure for the filing of Coughlin, 18 F.3d 133, 136 (2d Cir.1994) (citation grievances. First, an inmate must file a complaint with the omitted). Courts are "obligated to construe a pro se facility's IGP clerk within twenty-one calendar days of the complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d alleged occurrence. N.Y. Comp.Codes R. & Regs. tit. 7, Cir.2009). However, "the tenet that a court must accept as § 701.5(a) (2010). A representative of the facility's inmate true all of the allegations contained in a complaint is grievance resolution committee ("IGRC") has sixteen inapplicable to legal conclusions. Threadbare recitals of calendar days from receipt of the grievance to informally the elements of a cause of action, supported by mere resolve the issue. Id. at (b)(1). If there is no such informal conclusory statements, do not suffice." Iqbal, 129 S.Ct. at resolution, then the full IGRC conducts a hearing within 1949. sixteen calendar days of receipt of the grievance, and issues a written decision within two working days of the conclusion of the hearing. Id. at (b)(2).

III. ANALYSIS

A. Failure to Exhaust Administrative Remedies Second, a grievant may appeal the IGRC decision to Regarding Claims Against Defendants Nesmith and the facility's superintendent within seven calendar days of Holden receipt of the IGRC's written decision. If the grievance involves an institutional issue (as opposed to a Plaintiff alleges that Defendant Nesmith would not DOCCS-wide policy issue), the superintendent must issue allow Plaintiff to see a doctor for back pain and that a written decision within twenty calendar days of receipt should ... inquire as to whether [some or all of] the of the grievant's appeal. Grievances regarding defendants may have forfeited the affirmative defense of DOCCS-wide policy issues are forwarded directly to the non-exhaustion by failing to raise or preserve it ... or central office review committee ("CORC") for a decision whether the defendants' own actions inhibiting the under the process applicable to the third step. Id. at (c). [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to Third, a grievant may appeal to CORC within seven exhaust as a defense." Id. (citations omitted). Third, if the working days of receipt of the superintendent's written remedies were available and some of the defendants did decision. CORC is to render a written decision within not forfeit, and were not estopped from raising, the thirty calendar days of receipt of the appeal. Id. at (d). non-exhaustion defense, "the court should consider whether 'special circumstances' have been plausibly If a prisoner has failed to properly follow each of the alleged that justify the prisoner's failure to comply with the applicable steps prior to commencing litigation, he has administrative procedural requirements." Id. (citations and failed to exhaust his administrative remedies. Woodford v. internal quotations omitted).

Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). FN11. The Second Circuit has not yet decided whether the Hemphill rule has survived the Here, Jeffrey Hale, the Assistant Director of the Supreme Court's decision in Woodford, 548 U.S. Inmate Grievance Program for DOCCS, declares that 81, 126 S.Ct. 2378, 165 L.Ed.2d 368. Chavis v. there "are no CORC appeal records that correspond to the Goord, No. 07--4787--pr, 2009 U.S.App. LEXIS December 28, 2006, events as alleged in [P]laintiff's 13681, at *4, 2009 WL 1803454, at *1 (2d Cir. complaint regarding back pain or the loss of personal or June 25, 2009). religious property at the Great Meadow Correctional Facility." (Dkt. No. 55--6 ¶ 7.) CORC records show that *10 Here, as discussed above, an administrative Plaintiff did not file any CORC appeals between October remedy was available to Plaintiff. Defendants preserved 2006 and October 2008. (Dkt. No. 55--6 at 5.) Indeed, the exhaustion defense by asserting it in their answer to the Plaintiff admitted at his deposition that he did not properly complaint. (Dkt. No. 39 ¶ 18.) The record before the Court exhaust his administrative remedies regarding Defendant on this unopposed motion for summary judgment indicates Holden's alleged desecration of the Korans.FN10 (Dkt. No. neither that Defendants should be estopped from asserting 55--16 at 57:17--58:5.) Therefore, Plaintiff failed to the defense nor any special circumstances justifying exhaust his administrative remedies regarding his claims Plaintiff's failure to exhaust his administrative remedies. against Defendants Nesmith and Holden. Therefore, the Court grants Defendants' motion for summary judgment dismissing the claims against FN10. Plaintiff was not able to recall any of the Defendants Nesmith and Holden. details about the incident with Defendant Nesmith. (Dkt. No. 55--16 at 37--41.)

B. Claims Regarding Failure to Provide M edical Care Plaintiff's failure to exhaust, however, does not end Plaintiff alleges that Defendants Buell, Busse, the inquiry. The Second Circuit has held that a three-part Dempster, Howley, Juckett, Lenney, and Rivers FN12 failed inquiry is appropriate where a prisoner has failed to to provide him with adequate medical care. (Dkt. No. 1at exhaust his available administrative remedies. Hemphill v. 11--14.) Defendants argue that there are "neither objective New York, 380 F.3d 680, 686, 691 (2d Cir.2004).FN11 First, nor subjective facts to support Plaintiff's conclusory "the court must ask whether [the] administrative remedies medical indifference claim." (Dkt. No. 55--23 at 14--17.) [not pursued by the prisoner] were in fact 'available' to the Defendants are correct. prisoner." Hemphill, 380 F.3d at 686 (citation omitted). FN12. Defendants characterize the complaint as Second, if those remedies were available, "the court asserting Eighth Amendment medical care claims against only Defendants Nesmith, Howley, and no evidence that Plaintiff's ribcage pain and the blood he Battu. (Dkt. No. 55--23 at 14.) reported in his urine significantly affected his daily activities or caused him chronic and substantial pain. The 1. Defendants Lenney, Busse, and Howley record before the Court, therefore, does not reflect that Plaintiff suffered from "a condition of urgency, one that Plaintiff alleges that Defendants Lenney, Busse, and may produce death, degeneration, or extreme pain." Howley failed to adequately respond to his complaints of ribcage pain and blood in his urine. (Dkt. No. 1 at 12--13.) *11 Even if Plaintiff had raised a triable issue as to There are two elements to a prisoner's claim that the objective prong of his Eighth Amendment medical prison officials violated his Eighth Amendment right to care claim against Defendants Lenney, Busse, and receive medical care: "the plaintiff must show that she or Howley, the Court would grant summary judgment on this he had a serious medical condition and that it was met claim because Plaintiff has not raised a triable issue of fact with deliberate indifference." Caiozzo v. Koreman, 581 that any of these Defendants were deliberately indifferent F.3d 63, 72 (2d Cir.2009) (citation and punctuation to his medical needs. Medical mistreatment rises to the omitted). "The objective 'medical need' element measures level of deliberate indifference only when it "involves the severity of the alleged deprivation, while the culpable recklessness, i.e., an act or a failure to act ... that subjective 'deliberate indifference' element ensures that evinces 'a conscious disregard of a substantial risk of the defendant prison official acted with a sufficiently serious harm.' " Chance, 143 F.3d, 698, 703 (quoting culpable state of mind." Smith v. Carpenter, 316 F.3d 178, Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 183--84 (2d Cir.2003). 128 L.Ed.2d 811 (1994)).

The undisputed facts show that Plaintiff did not suffer Defendants Lenney and Busse are correction officers, from a serious medical condition. A "serious medical not medical staff members. (Dkt. No. 1 at 8; Dkt. No. condition" is "a condition of urgency, one that may 55--9 ¶ 1.) "Non-medical personnel engage in deliberate produce death, degeneration, or extreme pain." Nance v. indifference where they intentionally delayed access to Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J. medical care when the inmate was in extreme pain and has dissenting) (citations omitted), accord, Hathaway v. made his medical problem known to attendant prison Coughlin, 37 F.3d 63, 66 (2d Cir.1996), cert. denied, 513 personnel." Baumann v. Walsh, 36 F.Supp.2d 508, 512 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995); (N.D.N.Y.1999). Here, as discussed above, there is no Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). evidence that Plaintiff was in "extreme pain." Moreover, Relevant factors to consider when determining whether an the undisputed facts show that neither Defendant Lenney alleged medical condition is sufficiently serious include, nor Defendant Busse intentionally delayed Plaintiff's but are not limited to: (1) the existence of an injury that a access to medical care. Defendant Lenney declares that he reasonable doctor or patient would find important and called Defendant Howley regarding Plaintiff's complaints worthy of comment or treatment; (2) the presence of a of pain. (Dkt. No. 55--9 ¶ 4.) By Plaintiff's own admission, medical condition that significantly affects an individual's Defendant Howley came to his cell two hours after he first daily activities; and (3) the existence of chronic and complained of pain. (Dkt. No. 1 at 13.) A two-hour wait substantial pain. Chance, 143 F.3d at 702--03. Here, for medical care is not the type of delay that indicates Plaintiff alleges that he complained to Defendants Lenney, deliberate indifference. See Baumann, 36 F.Supp.2d at Busse, and Howley of "sharp pains in his left ribcage area 512 (denying defendants' motion to dismiss where plaintiff and the pissing of blood." (Dkt. No. 1 at 12.) Defendant alleged that correction officer delayed care for his injured Lenney declares that Plaintiff complained to him of pain arm for three weeks). Therefore, the Court grants in his side but did not mention anything about blood in his Defendants' motion for summary judgment and dismisses urine. (Dkt. No. 55--9 ¶¶ 4--5.) When Plaintiff allowed the Eighth Amendment medical care claims against Defendant Howley to examine him the next day, he stated Defendants Lenney and Busse. only that he had indigestion. (Dkt. No. 56 at 5.) There is Regarding Defendant Howley, to establish deliberate Plaintiff claims that the members of the extraction indifference on the part of medical staff, an inmate must team (Defendants Buell, Busse, Dempster, Juckett, prove that (1) a prison medical care provider was aware of Lenney, and Rivers) used excessive force. (Dkt. No. 1 at facts from which the inference could be drawn that the 13.) Defendants do not explicitly address Plaintiff's Eighth inmate had a serious medical need; and (2) the medical Amendment excessive force claim regarding the extraction care provider actually drew that inference. Farmer, 511 team, although their memorandum of law requests "that U.S. at 837; Chance, 143 F.3d at 702--703. The inmate [P]laintiff's complaint be dismissed, in its entirety, and then must establish that the provider consciously and without leave to replead" and states, in the section intentionally disregarded or ignored that serious medical regarding medical care, that "the extraction team did not need. Farmer, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 use any force against [P]laintiff." (Dkt. No. 55--23 at 16 L.Ed.2d 811; Ross v. Giambruno, 112 F.3d 505 (2d and 30, emphasis added.) The Court finds that Plaintiff Cir.1997). The undisputed facts show that Defendant has, just barely, raised a triable issue of material fact on Howley came to Plaintiff's cell to tend to his pain but that this issue.

Plaintiff threw toilet water on her before she could When prison officials are "accused of using excessive examine him. (Dkt. No. 1 at 13; Dkt. No. 56 ¶ 11.) Thus, physical force in violation of the Cruel and Unusual the undisputed facts show that the failure to provide Punishments Clause, the core judicial inquiry is ... whether immediate care to Plaintiff was the result of his own force was applied in a good-faith effort to maintain or conduct rather than any conscious and intentional restore discipline, or maliciously and sadistically to cause disregard on the part of Defendant Howley. Therefore, the harm." Hudson v. McMillian, 503 U.S. 1, 6--7, 112 S.Ct. Court grants Defendants' motion for summary judgment 995, 117 L.Ed.2d 156 (1992). The extent of any injury and dismisses the Eighth Amendment medical care claim suffered by the inmate "is one factor that may suggest against Defendant Howley. whether the use of force could plausibly have been thought necessary in a particular situation or instead evinced such 2. Defendants Buell, Busse, Dempster, Juckett, Lenney, wantonness with respect to the unjustified infliction of and Rivers harm as is tantamount to a knowing willingness that it occur." Id. at 7 (citation and quotation marks omitted). *12 Plaintiff alleges that the members of the extraction team (Defendants Buell, Busse, Dempster, In determining whether the use of force was wanton and Juckett, Lenney, and Rivers) violated his Eighth unnecessary, it may also be proper to evaluate the need Amendment rights by leaving him in a cell all night for application of force, the relationship between that without any medical attention or treatment. (Dkt. No. 1 at need and the amount of force used, the threat reasonably 13). perceived by responsible officials, and any efforts made

The undisputed facts show that Plaintiff did not suffer to temper the severity of a forceful response. The from any serious medical condition as a result of the absence of serious injury is therefore relevant to the incident with the extraction team. Plaintiff testified that he Eighth Amendment inquiry, but does not end it. suffered from "discomfort [and] bruises" from the incident. (Dkt. No. 55--16 at 83:6--8.) Superficial injuries Id. (citation and quotation marks omitted). In other such as bruises are not "serious medical conditions." words, not "every malevolent touch by a prison guard Tafari v. McCarthy, 714 F.Supp.2d 317, 354 gives rise to a federal cause of action. The Eighth (N.D.N.Y.2010). Therefore, the Court grants Defendants' Amendment's prohibition of cruel and usual punishments motion for summary judgment and dismisses the Eighth necessarily excludes from constitutional recognition de Amendment medical care claims against Defendants minimis uses of physical force, provided that the use of Buell, Busse, Dempster, Juckett, Lenney, and Rivers. force is not of a sort repugnant to the conscience of mankind." Id. at 9.

C. Excessive Force Claim Against the Extraction Team

*13 Here, Plaintiff's verified complaint alleges that the members of the extraction team beat Plaintiff with credit the plaintiff's testimony. Jeffreys, 426 F.3d at 554. sticks, their fists, and their feet. (Dkt. No. 1 at 13.) At his deposition, Plaintiff testified that the members of the Here, although Plaintiff is relying exclusively on his extraction team beat him with their fists for about a own testimony and his evidence is contradicted by minute. (Dkt. No. 55--16 at 84:17--24, 86:24--87:10.) If evidence produced by Defendants, the Jeffreys exception Plaintiff's version of events is credited, Defendants' use of does not apply because Plaintiff's testimony is not force was more than de minimis despite the fact that "contradictory and incomplete." The complaint and Plaintiff suffered only bruises and discomfort as a result. deposition testimony are moderately contradictory. In the Cf. Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 471 complaint, Plaintiff alleges that the extraction team (S.D.N.Y.1998) (kicking an inmate's ankles and feet members beat him with sticks, their fists, and their feet. during a pat frisk is de minimis and insufficient to rise to (Dkt. No. 1 at 13.) However, at his deposition, Plaintiff the level of a constitutional violation); Show v. Patterson, testified that the team members hit him only with their 955 F.Supp. 182, 192--93 (S.D.N.Y.1997) (pushing inmate fists. (Dkt. No. 56--16 at 84:17--19.) However, this is far against wall with hands and no use of weapons de minimis less contradictory than the plaintiff's statements in use of force); Anderson v. Sullivan, 702 F.Supp. 424, Jeffreys. There, the plaintiff, who alleged that a group of 425--27 (S.D.N.Y.1988) (pushing inmate's face into a bar police officers beat him and threw him out a third-floor while applying handcuffs not significantly disproportional window, confessed on at least three occasions that he had to the goal of handcuffing plaintiff). jumped rather than having been thrown. Jeffreys, 426 F.3d at 552. The plaintiff did not publicly state that he had been Defendants flatly contradict Plaintiff's version of thrown out of a window by police officers until nine events. The members of the extraction team declare that months after the incident. Id. The plaintiff could not the only physical contact any of them had with Plaintiff identify any of the individuals whom he alleged was to place him in restraints, pat frisk him, and strip frisk participated in the attack or describe their ethnicities, him. (Dkt. No. 55--8 ¶ 25; Dkt. No. 55--9 ¶ 20; Dkt. No. physical features, facial hair, weight, or clothing on the 55--11 ¶ 13.) night in question. Id. Plaintiff's deposition and complaint are also far less contradictory than cases in which courts Given these conflicting versions of events, the Court have applied Jeffreys to make credibility determinations at is called upon to weigh the parties' credibility. In general, the summary judgment stage. See Butler v. Gonzalez, No. of course, "[c]redibility determinations ... are jury 09 Civ.1916, 2010 U.S. Dist. LEXIS 108244, at *24--26, functions, not those of a judge." Anderson v. Liberty 2010 WL 3398156, at *8 (S.D.N.Y. May 18, 2010) Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 (collecting cases).FN13 Therefore, although this is a very L.Ed.2d 202 (1986). See also Rule v. Brine, Inc., 85 F.3d close question, the Court finds that Plaintiff has raised a 1002, 1011 (2d Cir.1996) ("Assessments of credibility and triable issue of fact that Defendants Buell, Busse, choices between conflicting versions of the events are Dempster, Juckett, Lenney, and Rivers used excessive matters for the jury, not for the court on summary force against him. Accordingly, the Court denies judgment."). There is, however, a "narrow exception" to Defendants' motion for summary judgment dismissing this the general rule that credibility determinations are not to claim. be made on summary judgment. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005); Blake v. Race, 487 FN13. The Court will provide Plaintiff with a F.Supp.2d 187, 202 (E.D.N.Y.2007). Under this copy of this unpublished decision in accordance exception, in the "rare circumstance where the plaintiff with the Second Circuit's decision in LeBron v. relies almost exclusively on his own testimony, much of Sanders, 557 F.3d 76 (2d Cir.2009). [Editor's which is contradictory and incomplete" and the plaintiff's Note: Attachments of Westlaw case copies evidence is contradicted by evidence produced by the deleted for online display.] defendants, the court may appropriately conclude at the summary judgment stage that no reasonable jury would D. Claims Against Defendants Battu and Wetherell *14 Plaintiff alleges that he reported the incident with the extraction team to Defendants Battu and Wetherell, Plaintiff contends that Defendants Hamel, Murray, that they refused to get involved, and that Defendant Battu and Stemp subjected him to excessive force as directed by told him that he may have deserved the way he was Defendants Battu and Wetherell. (Dkt. No. 1 at 14--15; treated. (Dkt. No. 1 at 14.) Defendants move to dismiss Dkt. No. 55--16 at 93:14--95:3.) Defendants' memorandum these claims, arguing that Plaintiff has failed to allege that of law does not address this excessive force claim. Defendants Battu and Wetherell were personally involved As discussed above in Section I(C), the parties in any constitutional violation. (Dkt. No. 55--23 at 11--12.) dispute what happened when Plaintiff was removed from Plaintiff's allegations against Defendant Battu and the conference room. Plaintiff alleges that Defendants Wetherell are properly analyzed as a failure-to-intervene Hamel, Murray, and Stemp beat him and then kicked him claim. On that claim, summary judgment in favor of while he was handcuffed. (Dkt. No. 1 at 14--15.) Defendants is appropriate. Defendants contend that Plaintiff head-butted Defendant Law enforcement officials can be held liable under § Hamel without provocation and that they used only 1983 for not intervening in a situation where another enough force to bring him under control. (Dkt. No. 55--7 officer is violating an inmate's constitutional rights. ¶ 11; Dkt. No. 55--10 ¶ 10; Dkt. No. 55--19 ¶ 6.) Medical Jean--Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 records show that Plaintiff suffered bruises on his right (S.D.N.Y.2008) (citation omitted). A state actor may be shoulder, red cheeks, a quarter-sized bump on his scalp, held liable for failing to prevent another state actor from two raised areas on the back of his scalp, and a bruised committing a constitutional violation if "(1) the officer had ear. (Dkt. No. 55--7 at 7.) a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would *15 Given the parties' conflicting versions of events know that the victim's constitutional rights were being and Defendants' failure to address the claim, the Court violated; and (3) the officer does not take reasonable steps finds that the excessive force claim against Hamel, to intervene." Id. (citation omitted). Whether an officer Murray, and Stemp survives summary judgment. can be held liable on a failure to intervene theory is generally a question of fact for the jury to decide. See However, there is no competent evidence that Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994) Defendants Battu and Wetherell were involved in the ("Whether an officer had sufficient time to intercede or incident. Although Plaintiff claims that they ordered the was capable of preventing the harm being caused by use of force, he does not have any personal knowledge to another officer is an issue of fact for the jury unless, support that opinion. To be sufficient to create a factual considering all the evidence, a reasonable jury could not issue for purposes of a summary judgment motion, an possibly conclude otherwise."). affidavit (or verified complaint) must, among other things, be based "on personal knowledge." Fed.R.Civ.P. 56(e) Here, a reasonable jury could not conclude that ("A supporting or opposing affidavit must be made on Defendants Battu and Wetherell failed to intervene with an personal knowledge, set out facts that would be admissible ongoing constitutional violation. The undisputed facts in evidence, and show that the affiant is competent to show that Plaintiff did not tell Defendants Battu and testify on the matters stated."). "Statements that are devoid Wetherell about the incident with the extraction team until of any specifics, but replete with conclusions, are several hours after it was over. (Dkt. No. 1 at 13--14.) insufficient to defeat a properly supported motion for Even if one fully credits Plaintiff's version of events, summary judgment." Bickerstaff v. Vassar Oil, 196 F.3d Defendants Battu and Wetherell did not have any realistic 435, 452 (2d Cir.1999) (citations omitted). Therefore, the opportunity to intervene and prevent the harm. Therefore, claim that Defendants Battu and Wetherell ordered Defendants' motion for summary judgment dismissing the Defendants Hamel, Murray, and Stemp to beat Plaintiff is claims against Defendants Battu and Wetherell is granted. dismissed.

E. Excessive Force Claim Against Defendants Hamel, F. Conditions of Confinement Claims M urray, and Stemp imposes on jail officials the duty to "provide humane Plaintiff alleges that Defendants DePalo, Powers, conditions of confinement" for prisoners. Farmer v. Segovis, Tedford FN14, White, and Winchip subjected him Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d to cruel and unusual punishment by subjecting him to 811 (1994). In fulfilling this duty, prison officials must harsh conditions of confinement.FN15 (Dkt. No. 1 at "ensure that inmates receive adequate food, clothing, 15--18.) Defendants argue that Plaintiff has "failed to shelter, and medical care, and must 'take reasonable allege a plausible Eighth Amendment claim" regarding the measures to guarantee the safety of the inmates.' " conditions of his confinement. (Dkt. No. 55--23 at 17--20.) Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 FN14. Defendants do not address the claim U.S. 517, 526--27, 104 S.Ct. 3194, 82 L.Ed.2d 393 against Defendant Tedford. (1984)).

FN15. Plaintiff does not assert that Defendants *16 To satisfy the objective component of an Eighth subjected him to these conditions of confinement Amendment conditions of confinement claim, "the in retaliation for any protected conduct. (Dkt. deprivation alleged must be, objectively, 'sufficiently No. 1 at 20.) Therefore, I will address the serious.' " Farmer, 511 U.S. at 834 (quoting Wilson v. conditions of confinement claims solely under Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d Eighth Amendment standards. 271 (1991)). To prove the objective component of an Eighth Amendment conditions of confinement claim, a 1. Handcuff Incident with Defendant Segovis prisoner must show that the defendant's "act or omission ... result[ed] in the denial of the minimal civilized measure Plaintiff alleges that Defendant Segovis violated his of life's necessities." Farmer, 511 U.S. at 834. Therefore, Eighth Amendment rights by leaving Plaintiff handcuffed "extreme deprivations are required to make out a in his cell for five hours while Plaintiff pleaded to be conditions-of-confinement claim." Hudson v. McMillian, un-handcuffed so he could use the bathroom. (Dkt. No. 1 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). at 15.) Defendants argue that this claim should be dismissed because there is "neither an objective nor a To satisfy the subjective component of an Eighth subjective basis for assigning Eighth Amendment liability. Amendment conditions of confinement claim, a prisoner Leaving [P]laintiff in the cell handcuffed behind his back must show that the defendant acted with "deliberate for several hours was a much safer alternative than having indifference." Wilson v. Seiter, 501 U.S. 294, 302--03, 111 to perform a cell extraction to retrieve [the handcuffs]." S.Ct. 2321, 115 L.Ed.2d 271 (1991). A prison official (Dkt. No. 55--23 at 19.) Defendants are not entitled to demonstrates deliberate indifference to inhumane summary judgment on this claim because Plaintiff's conditions of confinement where he "knows of and verified complaint raises a triable issue of fact that disregards an excessive risk to inmate health or safety; the Defendant Segovis subjected him to unconstitutional official must both be aware of facts from which the conditions of confinement. inference could be drawn that a substantial risk of serious The Eighth Amendment to the United States harm exists, and he must also draw the inference." Constitution prohibits "cruel and unusual" punishments. Farmer, 511 U.S. at 837.

The word "punishment" refers not only to deprivations imposed as a sanction for criminal wrongdoing, but also to Defendants' extremely spare argument regarding deprivations suffered during imprisonment. Estelle v. Plaintiff's claim against Defendant Segovis states, in full: Gamble, 429 U.S. 97, 102--03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Punishment is "cruel and unusual" if it Plaintiff alleges that on August 18, 2009, he presented involves the unnecessary and wanton infliction of pain or himself for shower in socks and was left locked in the if it is incompatible with "the evolving standards of cell with handcuffs on for several hours by Defendant decency that mark the progress of a maturing society." Segovis. The only reason security staff would leave an Estelle, 429 U.S. at 102. Thus, the Eighth Amendment inmate handcuff[ed] in their cell is if they "kidnapped" the cuffs, and [P]laintiff refused to put his hand and 55--23 at 19.) wrists through the modified feed-up slot to allow the officer Segovis to remove the cuffs. Once again, 2. Hot Water [P]laintiff's refusal to comply with staff direction and facility procedures resulted in a reasonable and *17 Plaintiff alleges that he was denied hot water on foreseeable deprivation. These facts, moreover, provide several occasions. (Dkt. No. 1 at 17.) Defendants move for neither an objective nor a subjective basis for assigning summary judgment, arguing that the claim should be Eighth Amendment liability. Leaving [P]laintiff in the dismissed. (Dkt. No. 55--23 at 20.) Defendants are correct. cell handcuffed behind his back for several hours was a The denial of hot water in an inmate's cell fails to state an much safer alternative than having to perform[ ] a cell Eighth Amendment claim because it does "not constitute extraction to retrieve them, for both [P]laintiff and staff. [a] serious deprivation[ ] of basic human needs." Graham Plaintiff was not subjected to a serious risk of harm, and v. Perez, 121 F.Supp.2d 317, 323 (S.D.N.Y.2000). the circumstance was not the result of deliberate Therefore, Defendants' motion for summary judgment indifference to inmate health or safety such as to give dismissing Plaintiff's claim that Defendants violated his rise to an Eighth Amendment cause of action. Gaston v. Eighth Amendment rights by failing to provide him with Coughlin, 249 F.2d at 16. a bucket for hot water is granted.

3. Drinking Water (Dkt. No. 55--23 at 19, citations to record omitted.)

Defendants do not address Plaintiff's allegation that he Plaintiff's complaint alleges that he was denied pleaded with Defendant Segovis to release him from his drinking water in his cell for a week. (Dkt. No. 1 at 15.) In handcuffs so that he could use the bathroom or his his complaint and at his deposition, Plaintiff alleged that allegation that he ultimately urinated and defecated on Defendant Powers was responsible for this deprivation himself. because he failed to turn Plaintiff's water on. (Dkt. No. 1 at 16; Dkt. No. 55--16 at 152:18--19.) At his deposition, Defendants cite only Gaston v. Coughlin, 249 F.3d Plaintiff testified that Defendant Segovis was also 156 (2d Cir.2001) FN16 to support their argument. In that responsible. (Dkt. No. 55--16 at 150:3--5, 9--12.) case, the Second Circuit held that a triable issue of fact Defendants' memorandum of law does not discuss this existed on a conditions of confinement claim where the claim. prisoner alleged that, inter alia, the area directly in front Where a prisoner alleges that he or she was denied of his cell was filled with human feces, urine, and sewage drinking water in his or her cell, the resolution of the claim water for several days. Although it is not entirely clear, hinges on whether the prisoner received fluids at other Defendants may be arguing that Plaintiff's claim should be times or suffered any adverse effects. Compare Johnson dismissed because his allegations are not as dire as those v. Comm'r of Corr. Servs., 669 F.Supp. 1071, 1074 asserted by the plaintiff in Gaston. However, a reasonable (S.D.N.Y.1988) (prisoner confined for one week in a cell juror, if he or she credited Plaintiff's version of events, with an inoperable sink did not suffer a constitutional could find that being handcuffed for five hours while violation because he was provided drinks with meals) with pleading to be released in order to use the bathroom is an Atkins v. County of Orange, 372 F.Supp.2d 377, 406 extreme deprivation. Similarly, a reasonable juror who (S.D.N.Y.2005) (inmate raised triable issue of fact that the credited Plaintiff's version of events could find that defendants subjected her to unconstitutional conditions of Defendant Segovis was deliberately indifferent. Therefore, confinement by depriving her of water in her cell for Defendants' motion for summary judgment dismissing the almost one month despite fact that they provided her with claim against Defendant Segovis regarding the fluids at meals where medical records showed inmate handcuffing incident is denied. suffered adverse effects from water deprivation). Here,

Plaintiff received juice at meals. (Dkt. No. 55--16 at FN16. As noted in the block citation, Defendants 152:9--13.) There is no evidence that Plaintiff suffered any cite this case as "249 F.2d at 16." (Dkt. No. adverse effects from water deprivation. Therefore, the Court sua sponte dismisses Plaintiff's claims regarding the ordinary incidents of prison life." Sandin v. Conner, 515 deprivation of drinking water. U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995);

Tellier, 280 F.3d at 80; Frazier v. Coughlin, 81 F.3d 313, 4. Food 317 (2d Cir.1996). The Second Circuit has held that the imposition of a loaf diet does not impose an atypical and Plaintiff alleges that Defendants interfered with his significant hardship on inmates, even where the inmate food on several occasions. Specifically, he alleges that (1) alleges that the diet caused severe stomach pain and Defendants White and Segovis forced Plaintiff to plead weight loss. McEachin v. McGuinnis, 357 F.3d 197 (2d with them before they gave him his breakfast tray on Cir.2004). Therefore, any due process claim regarding the August 18, 2009 (Dkt. No. 1 at 16); (2) Defendant White loaf diet is dismissed. gave Plaintiff only juice for lunch one day (Dkt. No. 1 at 16); Defendants White, Segovis, DePalo, and Tedford 5. Recreation and Movement punished him by restricting him to a special loaf diet (Dkt. No. 1 at 15, 16--17); and (4) Defendant Segovis gave him Plaintiff alleges that he was not allowed "any pork instead of his special diet on one occasion (Dkt. No. recreation or any movement outside his cell" when 1 at 18). Defendants move for summary judgment Defendant Segovis was assigned to his block. (Dkt. No. 1 dismissing these claims, arguing that "such deprivations at 17.) Defendants do not address this claim in their are de minimis and do not rise to a level of constitutional memorandum of law.FN17 significance ..." (Dkt. No. 55--23 at 18.) Defendants are FN17. Although Defendants do not discuss the correct. issue in their memorandum of law, Defendant *18 Plaintiff's allegations that he was denied food at Segovis declares that inmates in the Special lunch one day, given a diet he did not like as punishment, Housing Unit have one recreation period per day, and given food that his religion does not allow him to eat for which they are required to sign up in on one occasion are insufficient to raise a triable issue of advance. (Dkt. No. 55--18 ¶ 16.) Defendant fact that Defendants violated his Eighth Amendment Segovis escorts any inmates who sign up to rights. See Gill v. Hoadley, 261 F.Supp.2d 113, 129 recreation. Id. ¶ 17. Defendant Segovis declares (N.D.N.Y.2003) (finding that complaint failed to state that Plaintiff "rarely signed up for recreation" Eighth Amendment claim where prisoner alleged he was during his shift. Id. ¶ 18. denied one meal); Shakur v. Selsky, 391 F.3d 106 (2d Cir.2004) (prisoner stated First Amendment claim where Prisoners have the right under the Eighth Amendment he alleged that he was denied one religiously significant to be allowed "some opportunity for exercise." Williams feast). Therefore, the Court dismisses Plaintiff's Eighth v. Greifinger, 97 F.3d 699, 704 (2d Cir.1996). Plaintiff's Amendment claims regarding the denial of food. complaint, however, does not plausibly allege facts suggesting that this right was violated. Interference with To the extent that Plaintiff claims that the imposition prisoners' recreation must be quite severe in order to state of the loaf diet violated his right to due process, the claim an Eighth Amendment claim. See Branham v. Meachum, is sua sponte dismissed. In order to state a claim for 77 F.3d 626, 630--31 (2d Cir.1996) (officers who denied violation of his procedural due process rights, a plaintiff inmate outdoor exercise for twenty-two days did not must allege facts plausibly suggesting that he was deprived violate Eighth Amendment). Therefore, the Court sua of a liberty interest without due process of law. Tellier v. sponte dismisses Plaintiff's claims regarding the denial of Fields, 280 F.3d 69, 79--80 (2d Cir.2000). An inmate has recreation and movement. a liberty interest where (1) the state has granted its inmates, by regulation or statute, an interest in remaining 6. Showers free from that particular confinement or restraint; and (2) the confinement or restraint imposes "an atypical and Plaintiff alleges that Defendant Segovis would not significant hardship on the inmate in relation to the allow him to shower on August 19, 2009. (Dkt. No. 1 at 17.) Plaintiff alleges that when he told Defendant DePalo Claims. Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996); that he had not been allowed to shower, Defendant DePalo Jackson v. Burke, 256 F.3d 93, 96 (2d Cir.2001); see also said "That's life in F-block for Muslims." Id. Defendants Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 68 do not address this claim in their memorandum of law.FN18 L.Ed.2d 420 (1981) ("Although the state remedies may

FN18. Although Defendants' memorandum of not provide the respondent with all the relief which may law does not address this claim, Defendant have been available if he could have proceeded under § DePalo declares that at "no time did I derogate 1983, that does not mean that the state remedies are not [P]laintiff's religion or act in an unprofessional adequate to satisfy the requirements of due process."), manner toward him ." (Dkt. No. 55--4 ¶ 23.) overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 *19 The denial of one shower does not violate the (1986). Therefore, Plaintiff's claim regarding the Eighth Amendment. McCoy v. Goord, 255 F.Supp.2d deprivation of the two Bibles is dismissed. 233, 260 (S.D.N.Y.2003) ("a two-week suspension of shower privileges does not suffice as a denial of 'basic 8. Verbal Abuse hygienic needs' "). Therefore, the Court dismisses Plaintiff's claim sua sponte. Defendants argue that, to the extent that Plaintiff alleges that his constitutional rights were violated by 7. Bibles comments by Defendants DePalo and W inchip regarding Muslims, such claims should be dismissed. (Dkt. No. Plaintiff alleges that Defendants Segovis and Powers 55--23 at 20.) Defendants are correct. Verbal harassment, refused to give Plaintiff two Bibles that a chaplain in and of itself, does not rise to the level of a constitutional delivered for him. (Dkt. No. 1 at 16.) Defendants' violation. Tafari v. McCarthy, 714 F.Supp.2d 317, 364 memorandum of law does not address this claim. (N.D.N.Y.2010); Ramirez v. Holmes, 921 F.Supp. 204, The allegation about the Bibles fails to state an Eighth 210 (S.D.N.Y.1996) ("Allegations of threats or verbal Amendment claim because Plaintiff does not plausibly harassment, without any injury or damage, do not state a allege that he was denied "the minimal civilized measure claim under 42 U.S.C. § 1983."). Therefore, Defendants' of life's necessities" as a result of the deprivation. The motion for summary judgment dismissing these claims is Court can find no authority suggesting that even a granted. permanent deprivation of the Bibles would rise to that G. Religion Claims level. Here, Plaintiff received the Bibles twelve days after the chaplain originally delivered them. (Dkt. No. 55--6 at *20 Plaintiff alleges that Defendants Rock and 28.) Therefore, Plaintiff's Eighth Amendment claim Bellamy FN19 violated his right to exercise his religion. regarding the Bibles is sua sponte dismissed. (Dkt. No. 1 at 18--19.) Defendants move for summary judgment of these claims. (Dkt. No. 55--23 at 20--28.) The allegation about the Bibles also fails to state a FN19. Plaintiff alleges that Defendants Rock and procedural due process claim. "[A]n unauthorized Bellamy are responsible for violating his intentional deprivation of property by a state employee religious rights. (Dkt. No. 1 at 18.) Defendant does not constitute a violation of the procedural Rock, who was the Superintendent of Great requirements of the Due Process Clause of the Fourteenth Meadow when Plaintiff was incarcerated there, Amendment if a meaningful post-deprivation remedy for was "responsible for the overall administrative the loss is available." Hudson v. Palmer, 468 U.S. 517, functioning of the facility." (Dkt. No. 55--12 ¶ 3 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (emphasis .) He was therefore personally involved in the omitted). This Circuit has held that "confiscation ... [does] implementation of the Directive at Great not constitute a Fourteenth Amendment violation for loss Meadow. The evidence does not show, however, of property because of the availability of state court any personal involvement by Defendant Bellamy post-deprivation remedies" in the New York Court of with implementation of the Directive at Great Meadow. Defendant Bellamy is the Director of Muhammad, 98 F.Supp.2d at 343--44 (collecting cases). the Inmate Grievance Program. (Dkt. No. 55--6 Therefore, Defendants' motion for summary judgment ¶ 12.) Therefore, Defendants' motion for dismissing Plaintiff's claim regarding the failure to provide summary judgment dismissing the claims against Halal meals is granted.

Defendant Bellamy for lack of personal involvement (Dkt. No. 55--23 at 12) is granted. 2. Restrictions on Demonstrative Prayer Hereafter, I will refer to Plaintiff's religion claims as being brought solely against Defendant DOCCS Directives limit prisoners' freedom to Rock. demonstratively pray. Specifically, DOCCS Directive 4202(k) states that "[i]ndividual demonstrative prayer by 1. Meals inmates will only be allowed in the privacy of their own living quarters and in designated religious areas whenever Plaintiff alleges that Defendant Rock violated his feasible as determined by the Superintendent." (Dkt. No. right to exercise his religion because Great Meadow 55--12 ¶ 9.) Plaintiff argues that the Directive as Correctional Facility does not provide a Halal diet. (Dkt. implemented at Great Meadow violates his right to No. 1 at 19.) Defendants move for summary judgment practice his religion. (Dkt. No. 1 at 18, 20.) Defendants dismissing this claim, arguing that the religious alternative argue that this claim should be dismissed. (Dkt. No. 55--23 meals provided at Great Meadow meet Plaintiff's religious at 25--26.) The Court will address this claim under both dietary requirements. (Dkt. No. 55--23.) Defendants are the Free Exercise Clause of the First Amendment and the correct. Religious Land Use and Institutionalized Persons Act

The Second Circuit has "clearly established that a ("RLUIPA"). prisoner has a right to a diet consistent with his or her a. First Amendment religious scruples." Ford, 352 F.3d at 597. However, "[a]ll that is required for a prison diet not to burden an inmate's Prisoners retain some measure of the constitutional free exercise of religion is the provision of a diet sufficient right to the free exercise of religion guaranteed by the First to sustain the prisoner's good health without violating [his Amendment. Ford v. McGinnis, 352 F.3d 582, 588 (2d religion's] dietary laws." Muhammad v. Warithu--Deen Cir.2003). However, due to the unique concerns of the Umar, 98 F.Supp.2d 337, 344 (W.D.N.Y.2000) (citing prison setting, prisoners' free exercise rights must be Abdul--Malik v. Goord, No. 07 Civ. 4584, 1997 U.S. Dist. balanced against the interests of prison officials engaged LEXIS 2047, 1997 WL 83402, at *6 (S.D.N.Y. Feb. 27, in the complex duties of administering the penal system. 1997)).FN20 Id. Thus, a prison regulation that denies a prisoner the ability to engage in a religious exercise "is judged under FN20. Defendants served a copy of this a reasonableness test less restrictive than that ordinarily unpublished decision on Plaintiff with their applied [to burdens on fundamental rights]: a regulation moving papers. (Dkt. No. 55--23 at 105.) that burdens a [prisoner's] protected right passes constitutional muster if it is reasonably related to Defendant Rock declares that DOCCS "has legitimate penological interests." Salahuddin v. Goord, proscribed the use of what is called a [ ] Religious 467 F.3d 263, 274 (2d Cir.2006) (quoting O'Lone v. Alternative Meal program to accommodate non[-]Kosher Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 religious dietary requirements." (Dkt. No. 55--12 ¶ 47.) He L.Ed.2d 282 (1987) (punctuation omitted). further declares that the alternative meal "provides a *21 To establish a free exercise claim, a prisoner nutritionally adequate diet and meets Islamic requirements "must show at the threshold that the disputed conduct regardless of sect." Id. ¶ 50. Courts have consistently held substantially burdens FN21 his sincerely held religious that DOCCS' Religious Alternative Meal is sufficient to beliefs." Salahuddin, 467 F.3d at 274--75 (citing Ford, sustain Muslim prisoners' good health without violating 352 F.3d at 591). A religious belief is "sincerely held" dietary laws and that a strictly Halal diet is not required. when the plaintiff subjectively, sincerely holds a particular belief that is religious in nature FN22. Ford, 352 F.3d at forced to choose between "submitting to the test or 590. Here, there is no dispute that Plaintiff sincerely adhering to [his] beliefs and enduring medical keeplock."). believes that his religion requires him to demonstratively pray several times each day. Defendants argue that the Directive does not substantially burden Plaintiff's sincerely held religious FN21. Although the Second Circuit has applied beliefs because Plaintiff "has also admitted that prayer the "substantial burden" test in its most recent times do not always coincide with recreation times and prison free exercise cases, it has done so while that he is only forced to choose occasionally." (Dkt. No. explicitly refusing to adopt or endorse the test. 55--23 at 26, citing Dkt. No. 55--16 (Plaintiff's deposition) "The Ford court noted that the Circuits at 164--65.) apparently are split over whether prisoners must show a substantial burden on their religious Defendant Rock declares that: exercise in order to maintain free exercise claims. Nevertheless, the Ford court held that An inmate housed at Great Meadow who wishes to pray since the plaintiff had not challenged the during his recreation period has alternatives to application o f the sub stantial burden demonstrative prayer in the yard. First, the inmate can requirement, the court would proceed as if the make silent, non-demonstrative prayers while in Great requirement applied. Likewise, the Salahuddin Meadow's recreation yard. In addition, an inmate may court noted that '[r]esolution of this appeal does choose to remain in his cell during the recreation period not require us to address Salahuddin's argument and, while in his cell, the inmate may pray that a prisoner's First Amendment free-exercise demonstratively as he wishes. An inmate may choose to claim is not governed by the 'substantial burden' go back to his cell during a designated "go back," threshold requirement,' because defendants whereby inmates may return to their cells from the 'never proceed to argue that we should find any recreation yard under the supervision of staff at a particular burdened religious practice to be scheduled time. "Go Back" periods, however, are peripheral or tangential to [plaintiff's] religion.' limited, and may not coincide with the exact point in The court then proceeded as if the substantial time that an inmate wishes to perform the Salaah, burden requirement applied." Pugh v. Goord, inasmuch as inmates must be escorted while they are 571 F.Supp.2d 477, 497 n. 10 (S.D.N.Y.2008) transported from the recreation yard to their cells, and (citations and some punctuation omitted). vice versa, and [ ] only a finite number of correction officers work at Great Meadow at any time.

FN22. However, in some cases "an asserted belief might be so bizarre, so clearly non-religious (Dkt. No. 55--12 ¶¶ 24--28.) in motivation, so as not to be entitled to protection." Frazee v. Illinois Dept. Of Defendant Rock asserted the same argument in Smith Employment Security, 489 U.S. 829, 834 n. 2, v. Artus, No. 9:07--CV--1150, 2010 U.S. Dist. LEXIS 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989). 104660, 2010 WL 3910086 (N.D.N.Y. Sept.30, 2010).

FN23 There, Judge Mordue found that:

A prisoner's sincerely held religious belief is "substantially burdened" "where the state puts substantial FN23. Defendants served a copy of this pressure on an adherent to modify his behavior and to unpublished decision on Plaintiff with their violate his beliefs." Jolly v. Coughlin, 76 F.3d 468, 477 moving papers. (Dkt. No. 55--23 at 120.) (2d Cir.1996) (punctuation omitted) (holding that Rastafarian prisoner's sincerely held religious belief that The question therefore becomes whether having to he was prohibited from submitting to a test for latent choose between attending recreation ... or fulfilling his tuberculosis was "substantially burdened" where he was obligation to pray Salaah in a demonstrative manner would substantially burden plaintiff's religious rights. impacts staff's ability to control inmates. When an Although facts produced at trial may show otherwise, inmate is engaged in demonstrative prayer in the the present record, when viewed in the light most recreation yard, that inmate is likely to ignore legitimate favorable to plaintiff, shows that plaintiff's free exercise direct orders from staff. The inmate praying rights were substantially burdened by defendants' policy demonstratively may view the interruption as an insult of requiring plaintiff to either forego his Salaah prayer to his or her religion, and the perceived insult may lead or give up other privileges accorded him as an inmate. to conflict between staff and the inmate. Staff may be hesitant to interrupt an inmate engaged in demonstrative *22 Smith, 2010 U.S. Dist. LEXIS 104660, at *36--37, prayer out of respect for the religious significance of the 2010 WL 3910086, at *12. Judge Mordue's analysis is prayer, and thus be impeded in their attempt to persuasive and thus the Court finds that there is a triable communicate necessary information to the inmate or issue of fact that the Directive substantially burdened carry out direct orders or tasks associated with that Plaintiff's sincere religious beliefs. inmate. This, in turn, disrupts the order of the facility Once a plaintiff establishes that a sincerely held and may adversely impact related safety concerns. As religious belief has been substantially burdened,"[t]he noted above, because the inmate's religion has been defendants then bear the relatively limited burden of identified by his demonstrative prayer, when these identifying the legitimate penological interests that justify conflicts occur, other inmates may join in the conflict, the impinging conduct." Salahuddin, 467 F.3d at 275. rapidly escalating the situation. Whether the inmate ignores a direct order or staff is unwilling to disrupt Defendant Rock's declaration discusses, at length, the prayer, the end result is a diminution of staff's control penological interests on which the Directive is based. over the recreation yard and an increased risk to the Specifically, he declares that: safety and security of the facility.

Demonstrative prayer singles individuals out as *23 I am informed by my attorneys that plaintiff is members of a particular religious group. This is asserting that these security concerns do not apply to particularly true of Muslim inmates performing the inmates housed in the Behavioral Health Unit (BHU) Salaah, which includes, among other things, kneeling because they are isolated during recreation periods. down, bending forward, touching the forehead to the However, the fact that inmates in BHU and the Special ground, and motioning with the hands and arms. When Housing Unit (SHU) [ ] take recreation in isolated inmates of a particular faith are involved in an incident, recreation yards does not significantly alter these other inmates of the same faith are likely to involve security and staffing concerns. The recreation yards themselves in the incident to protect someone from adjacent to the BHU and SHU are small pens designed "their group." Identification of inmates' religious for use by one inmate at a time. They abut one another, affiliation has also been known to lead to conflicts and although solitary, they are not private and may be between different faith groups or different sects within observed by other members of the inmate population. a faith group. These conflicts can escalate rapidly Thus, the religious preferences of inmates engaging in placing staff and other inmates at serious risk of demonstrative pray[er] in the BHU and SHU recreation physical injury or death, and threaten the facility's yards would still be identifiable by other inmates, and overall security. In the recreation yard, where hundreds staff would still have diminished control over inmates of inmates are gathered at one time, this easily could praying demonstratively. M oreover, from an lead to large-scale violent incidents. During the administrative perspective, it is better to require staff to confusion created by such incidents, an inmate may apply Directive 4202 across the board to all members of attempt to escape from the facility or inmates may the inmate population without exception. In this way, attempt to take over the prison. both staff and inmates know exactly what is allowed and what is not allowed. There are no errors of discretion, Demonstrative prayer in the yard also negatively no favors, no favoritism, and no room for inmates in general population to become disruptive as a result of assigned to the yard and in the evening, one sergeant their belief that inmates in BHU or SHU are receiving and twelve correction officers are assigned to the yard. special privileges. In these large areas of a facility such as the yard or the mess hall, prisoners substantially outnumber staff, and (Dkt. No. 55--12 ¶¶ 11--34.) these are areas of a facility where unusual incidents such as serious fights and assaults will typically occur. BHU Judge Mordue concluded in Smith that the security and SHU recreation periods run on parallel schedules. concerns identified by Defendant Rock satisfied the Fewer staff are assigned because BHU and SHU burden of showing that legitimate penological interests inmates are released to the yard individually but must be supported the Directive's ban on demonstrative prayer in escorted by at least two officers. BHU and SHU the recreation yards at Great Meadow. Smith, 2010 U.S. populations, even though isolated from the general Dist. LEXIS 104660, at *41--42, 2010 WL 3910086, at * population, tend to be more unpredictable and difficult 14. The undersigned agrees. "Prison security and to control. These populations often present greater penological institutional safety goals are indeed a most safety and security risks for staff. When an inmate compelling governmental interest ..." Campos v. Coughlin, becomes involved in a conflict situation in one area of 854 F.Supp. 194, 207 (S.D.N.Y.1994) (Sotomayor, J.); the facility, staff must be diverted from other areas of see also Orafan v. Goord, 411 F.Supp.2d 153, 160 the facility to back up the staff assigned to the location (N.D.N.Y.2006), rev'd on other grounds, Orafan v. where the incident is occurring. During recreation Rashid, 249 Fed. App'x 217 (2d Cir.2007). periods the diversion of staff away from more populated areas or escort responsibilities to address incidents with Therefore, the burden shifts to Plaintiff to show that BHU or SHU inmates can be dangerous, and creates the concerns articulated by Defendant Rock are irrational. critical security concerns. During such incidents, Salahuddin, 467 F.3d at 275. When determining whether inmates and staff are placed at risk of sustaining serious the burden imposed by the defendants is reasonable rather physical injury or death. Further, during the confusion than irrational, a court evaluates four factors: (1) whether created by such incidents, an inmate may attempt to the action had a valid, rational connection to a legitimate escape from the facility or inmates may attempt to take governmental objective; (2) whether the prisoner has an over the prison. It is imperative, therefore, that rules and alternative means of exercising the burdened right; (3) the regulations designed to minimize the potential for impact on guards, inmates, and prison resources of conflict, and the drain on human resources be accommodating the right; and (4) the existence of implemented, across the board, without exception. This alternative means of facilitating the plaintiff's exercise of is particularly true in the current economic climate as, the right that have only a de minimis adverse effect on upon information and belief, there are no resources valid penological interests. Salahuddin, 467 F.3d at available to hire additional facility staff, and DOCS is 274--75. being encouraged to reduce the number of hours that staff may work overtime.

Defendant Rock declares here, as he did in Smith, that the Directive's ban on demonstrative prayer in recreation (Dkt. No. 55--12 ¶¶ 36--45.) yard at Great Meadow is rational because:

In Smith, the plaintiff opposed the defendants' motion *24 Great Meadow's "big recreation yard is for summary judgment. In his opposition, the plaintiff approximately 5 acres, and during a typical recreation argued that the Directive's ban on demonstrative prayer in period, between 100 and 400 inmates are present in the the recreation yard at Great Meadow was an irrational yard, depending on the weather. In the morning, one response to the concerns articulated by Defendant Rock sergeant and six correction officers are assigned to the because (1) the Directive contains other provisions yard to supervise the inmates during recreation. In the explicitly allowing religious behaviors that single out afternoon, one sergeant and eight correction officers are members of particular faith groups, such as wearing distinctive head coverings and facial hair and being served triable issue of fact that the very policy challenged by on different colored trays in the mess hall; (2) officers are Plaintiff in this case-Great Meadow's implementation of just as likely to lose control over inmates praying DOCCS Directive 4202(k) banning demonstrative prayer non-demonstratively, which is allowed under the in the recreation yard-violated Muslim inmates' free Directive, as they are over inmates praying exercise rights. demonstratively; (3) other activities in the recreation yard-such as sports-also lead to conflict but are However, unlike the plaintiff in Smith, Plaintiff here permitted; and (4) demonstrative prayer is allowed in the has not opposed Defendants' motion for summary recreation yards at other facilities. Smith, 2010 U.S. Dist. judgment. Thus, Plaintiff here has not met his burden of LEXIS 104660, at *42--26, 2010 WL 3910086, at * showing that the concerns articulated by Defendant Rock 14--15. Judge Mordue found that the plaintiff had raised a are irrational. triable issue of fact that the Directive was an irrational response to the facility's legitimate penological interests. Even if Plaintiff had opposed the motion and met his Smith, 2010 U.S. Dist. LEXIS 104660, at *47--48, 2010 burden, Defendants would be entitled to summary WL 3910086, at *16. judgment on Plaintiff's free exercise claim because (1) the doctrine of qualified immunity shields them from liability *25 In Smith, the plaintiff asserted that the for damages; and (2) Plaintiff's request for injunctive relief alternatives that the facility offered to praying in the is moot. recreation yard-namely, non-demonstrative prayer or staying in his cell at recreation time to pray-were not The affirmative defense of qualified immunity reasonable. Smith, 2010 U.S. Dist. LEXIS 104660, at "shields government officials 'from liability for civil *48--53, 2010 W L 3910086, at *16--17. Judge Mordue damages insofar as their conduct does not violate clearly found that the plaintiff had raised a triable issue of fact established statutory or constitutional rights of which a regarding the reasonableness of the facility's alternatives. reasonable person would have known.' " Stephenson v. Id. Doe, 332 F.3d 68, 76 (2d Cir.2003) (quoting McCardle v.

Haddad, 131 F.3d 43, 50 (2d Cir.1997)). A qualified

In Smith, Judge Mordue found that the same issues immunity inquiry in prisoner civil rights cases generally that raised a triable issue of fact regarding the rationality involves two issues: (1) "whether the facts, viewed in the of the Directive also raised a triable issue regarding the light most favorable to the plaintiff, establish a third Turner factor, which considers the impact on guards, constitutional violation"; and (2) "whether it would be inmates, and prison resources. Smith, 2010 U.S. Dist. clear to a reasonable officer that his conduct was unlawful LEXIS 104660, at *53--54, 2010 WL 3910086, at *17. in the situation confronted." Sira v. Morton, 380 F.3d 57, 68--69 (2d Cir.2004) (citations omitted); accord, Higazy v. Finally, in Smith the plaintiff proposed alternatives to Templeton, 505 F.3d 161, 169 n. 8 (2d Cir.2007) the Directive's ban on demonstrative prayer in the (citations omitted). In the context of religion claims, the recreation yard-for instances, adding an additional "Go Supreme Court and the Second Circuit have "expressly Back" period for Muslim inmates or setting aside an area cautioned against framing the constitutional right at too of the recreation yard for prayer. Smith, 2010 U.S. Dist. broad a level of generality." Redd v. Wright, 597 F.3d LEXIS 104660, at *54--56, 2010 WL 3910086, at *18 . 532, 536 (2d Cir.2010) (citing Wilson v. Layne, 526 U.S. Judge Mordue found that Plaintiff had raised a triable 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). The issue of fact that the facility could accommodate Muslims' Second Circuit imposes a " 'reasonable specificity' need to demonstratively pray by designating an area of the requirement on defining the contours of a constitutional recreation yard for prayer. Smith, 2010 U.S. Dist. LEXIS right for qualified immunity purposes." Id. Thus, conduct 104660, at *57--58, 2010 WL 3910086, at *19. does not violate clearly established rights unless the

Supreme Court or the Second Circuit has quite specifically

Thus, in Smith, Judge Mordue found that there was a held that conduct is unconstitutional. Id. and is, inter alia, "for persons who are mentally *26 Here, neither the Second Circuit nor the Supreme ill, disabled, or retarded, or chronically ill or Court has held that the policy against demonstrative prayer handicapped" or "a jail, prison, or other in the solitary recreation pen at Great Meadow correctional facility." 42 U.S.C. § 1997(1) Correctional Facility violates prisoners' rights under the (2010).

First Amendment or RLUIPA. Indeed, Smith appears to be the only case on the issue. Even if Smith was sufficient to In Smith, Judge Mordue found that the plaintiff had create "clearly established statutory or constitutional raised a triable issue of fact that Great Meadows' ban on rights," it would have no effect here because it was demonstrative prayer violated RLUIPA for the same decided after Plaintiff filed this action. Moreover, Judge reasons that he articulated regarding the First Amendment. Mordue dismissed the plaintiff's action in Smith on the Smith, 2010 U.S. Dist. LEXIS 104660, at *58--62, 2010 basis of qualified immunity because "it still does not W L 3910086, at *19--20. However, he found that the appear well established that an inmate has the right to pray defendants were entitled to qualified immunity. Smith, demonstratively in the recreation yard." Smith, 2010 U.S. 2010 U.S. Dist. LEXIS 104660, at *89, 2010 WL Dist. LEXIS 104660, at *88, 2010 WL 3910086, at *29. 3910086, at *29.

Therefore, Defendants are entitled to qualified immunity on Plaintiff's claim for money damages regarding Here, even if Plaintiff had raised a triable issue of demonstrative prayer. fact, Defendants would be entitled to summary judgment dismissing the RLUIPA claim for two reasons. First, Defendants argue that Plaintiff's claims for injunctive money damages are not available under RLUIPA. relief are moot because he is no longer housed at Great Sossamon v. Texas, ------U.S. --------, 131 S.Ct. 1651, 179 Meadow. (Dkt. No. 55--23 at 10--11.) Defendants are L.Ed.2d 700 (2011). Second, as discussed above, correct. "It is settled in this Circuit that a transfer from a Plaintiff's claims for injunctive relief are moot. Therefore, prison facility moots an action for injunctive relief against Defendants' motion for summary judgment dismissing the transferring facility." Prins v. Coughlin, 76 F.3d 504, Plaintiff's RLUIPA claim regarding the ban on 506 (2d Cir.1996) (per curiam). Plaintiff has not been demonstrative prayer is granted. housed at Great Meadow since October 2009. (Dkt. No. 7.) Therefore, his request for injunctive relief is moot. 3. Access to Personal Razor

Accordingly, Defendants' motion for summary *27 Plaintiff alleges that Defendants violated his judgment dismissing Plaintiff's First Amendment claim religious rights by refusing to allow him a razor or clippers regarding the ban on demonstrative prayer is granted. to shave his pubic hair and armpits. (Dkt. No. 1 at 19.)

Defendants argue that their refusal to give Plaintiff a b. RLUIPA personal razor is supported by legitimate health and safety concerns because inmates in the SHU and BHU, where RLUIPA provides that "[n]o government shall impose Plaintiff resided at Great Meadow, "are there because they a substantial burden on the religious exercise of a person have threatened to ... commit suicide, inflict self harm, or residing in or confined to an institution FN24 ... unless the because they have assaulted staff or other inmates." (Dkt. government demonstrates that imposition of the burden on No. 55--23 at 27.) Even if Plaintiff had raised a triable that person (1) is in furtherance of a compelling issue of fact regarding the merits of this claim, Defendants governmental interest; and (2) is the least restrictive means are entitled to summary judgment on the basis of qualified of furthering that compelling governmental interest." 42 immunity. The Court can find no Supreme Court or U.S.C. § 2000cc--1(a). Second Circuit authority holding that prisoners are entitled

FN24. An "institution" is any facility or to possess a personal razor or clippers to perform institution that is "owned, operated, or managed grooming mandated by their religion. Additionally, as by, or provides services on behalf of any State" discussed above, Plaintiff's requests for injunctive relief are moot because he is no longer housed at Great Meadow. Therefore, Defendants' motion for summary DeBlasio v. Rock judgment dismissing this claim is granted. Not Reported in F.Supp.2d, 2011 WL 4478515 H. Claim Against Defendant Karandy (N.D.N.Y.)

END OF DOCUMENT Defendants argue that complaint fails to state that Defendant Karandy was personally involved in any of the alleged constitutional violations. (Dkt. No. 52--33 at 11--12.) Defendants are correct.

Under Second Circuit precedent, " 'personal 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)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show some tangible connection between the unlawful conduct and the defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). Here, the complaint includes Defendant Karandy in the list of defendants but does not contain any allegations about any acts or omissions by Defendant Karandy. (Dkt. No. 1 at 9.) Therefore, I grant Defendants' motion for summary judgment and dismiss the claim against Defendant Karandy.

ACCORDINGLY, it is

ORDERED that Defendants' motion for summary judgment (Dkt. No. 55) is GRANTED IN PART AND DENIED IN PART. All claims are dismissed with the exception of: (1) the excessive force claim against Defendants Buell, Busse, Dempster, Juckett, Lenney, and Rivers; (2) the excessive force claim against Defendants Hamel, Murray, and Stemp; and (3) the claim against Defendant Segovis regarding the handcuffing incident; and it is further

ORDERED that the Clerk provide Plaintiff with a copy Butler v. Gonzalez, No. 09 Civ.1916, 2010 U.S. Dist. LEXIS 108244, 2010 WL 3398156 (S.D.N.Y. May 18, 2010) in accordance with the Second Circuit's decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir.2009).

IT IS SO ORDERED.

N.D.N.Y.,2011.

Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 et seq., alleging that Defendant Dale Artus, Superintendent of Clinton Correctional Facility, violated his constitutional and Only the Westlaw citation is currently available. statutory rights to freely exercise his religious beliefs. Dkt. No. 1, Compl. The crux of Plaintiff's religious expression claim is that he was repeatedly punished for exercising his sincerely held religious beliefs, which require him to wear United States District Court, dreadlocks, because he is a member of the Nation of Islam ("NOI") and Department of Correctional Services' N.D. New York. ("DOCS") policy allows only those of the Rastafarian faith to wear dreadlocks. See generally id.

Prince PILGRIM, Plaintiff, v. In addition, Plaintiff alleges that Artus failed to Dale ARTUS, Superintendent, Clinton Correctional protect him from unconstitutional retaliation, his due Facility, Defendants. process rights were violated during the course of several disciplinary hearings, and the penalties imposed as a result of his disciplinary convictions constituted "cruel and unusual punishment" in violation of the Eighth Civ. No. 9:07-CV-1001 (GLS/RFT). Amendment. Id. March 18, 2010.

P r e s e n t l y b e f o r e t h e C o u r t f o r a Report-Recommendation is Defendant's Motion for Prince Pilgrim, Attica, NY, pro se. Summary Judgment. Dkt. No. 36. Since the filing of Defendant's Motion, the Court has granted Plaintiff four separate extensions of time to file a response in opposition to the Motion. See Dkt. No. 46, Order, dated Aug. 20, Hon. Andrew M. Cuomo, Attorney General for the State 2009, at p. 1 (cataloguing prior extensions). The final of New York, Aaron M. Baldwin, Esq., Assistant Attorney extension granted Plaintiff until September 4, 2009, to file General, of Counsel, Albany, NY, for Defendant. a response, and warned Plaintiff that "failure to oppose

Defendant's Motion will result in this Court accepting the facts set forth by Defendant as true." Id. at p. 3 (emphasis in original) (citing N.D.N.Y.L.R. 7.1(a)(3)).

REPORT-RECOMMENDATION and ORDER Despite this Court's leniency and warnings, Plaintiff's

Response FN1 was not received until September 10, 2009, RANDOLPH F. TREECE, United States Magistrate six days after the deadline passed. Dkt. No. 47, Pl.'s Resp. Judge. in Opp'n to Def.'s Mot. Notwithstanding Plaintiff's failure to meet the extended deadline, because he is proceeding *1 Pro se Plaintiff Prince Pilgrim has filed this civil pro se, we will nonetheless consider his Response and the rights action, pursuant to 42 U.S.C. § 1983 and the Exhibits attached thereto in issuing a recommendation on On November 18, 2006, Plaintiff was given a direct Defendant's Motion. order by Corrections Officer ("C.O.") A. Appleby to remove his dreadlocks as per DOCS' policy, which allows only inmates of the Rastafarian faith to wear dreadlocks. Id. at ¶ 18; Dkt. No. 47-1, Prince Pilgrim Decl., dated FN1. Plaintiff's Response consists of (1) an Aug. 31, 2009 (hereinafter "Pl.'s Decl."), at ¶ 14. DOCS' Affidavit, dated August 31, 2009, which is in hair policy is based on DOCS Directive # 4914, entitled sum and substance a concise memorandum of "Inmate Grooming Standards," and relevant decisions law, and (2) a Declaration, dated August 31, from the Central Office Review Committee ("CORC"), 2009, which is in sum and substance a statement which is the final appellate body for inmate grievances and of material facts, with attached Exhibits. See Dkt. whose decisions have the same effect as directives. Dkt. No. 47. No. 36-6, Mark Leonard Decl., dated Apr. 30, 2009, at ¶ 59. DOCS Directive # 4914 allows inmates to wear long hair FN2 provided they tie it back in a ponytail at all times, but does not specifically permit nor disallow dreadlocks.

For the reasons that follow, we recommend that Id., Ex. B, DOCS Directive # 4914(III)(B)(2)(a)-(d). Defendant's Motion be granted in part and denied in part. However, relevant CORC decisions have made clear that

"[o]nly inmates of the Rastafarian faith may have dreadlocks." Id., Ex. C, CORC Decision, dated May 8, 2003.

I. FACTS NOT IN DISPUTE

The following facts were derived mainly from the Defendant's Statement of Material Facts, submitted in FN2. DOCS Directive # 4914 defines "long" as accordance with N.D.N.Y.L.R. 7.1, which were not, in "below shoulder length." Leonard Decl., Ex. B, their entirety, specifically countered nor opposed by DOCS Directive # 4914(III)(B)(2) (b). Plaintiff. See N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." (emphasis in original)). In any On December 19, 2006, C.O. C. Strong observed event, most, if not all, of the material facts are not in Plaintiff, who was on his way to an NOI meeting, with his dispute, but rather, the issue is whether those facts give hair in dreadlocks that extended down to the middle of his rise to constitutional and statutory violations. back. Id. at ¶ 17; Pilgrim Decl. at ¶¶ 17-18. C.O. Strong issued Plaintiff a Misbehavior Report (hereinafter "First MR"), charging him with Refusal to Obey a Direct Order (Rule 106.10). Def.'s 7.1 Statement at ¶ 19. At a Tier II *2 Plaintiff was received into DOCS' custody on or Hearing that concluded on December 27, 2006, Lieutenant about November 4, 1992. Dkt. No. 36-2, Def.'s 7.1 ("Lt.") Boyle found Plaintiff guilty of the charge and Statement, at ¶ 1. At all times relevant to the Complaint, assessed him a penalty of thirty (30) days keeplock,FN3 and continuing until the present, Defendant Dale Artus has with loss of commissary, package and phone privileges. been the Superintendent of Clinton Correctional Facility Id. at ¶ 20. During that hearing, Boyle refused Plaintiff's ("Clinton"), where Plaintiff was confined from April 1, request to call Defendant Superintendent Artus as a 2005 through February 5, 2009. Id. at ¶ 2. Plaintiff is witness, reasoning that because Artus was not present nor currently incarcerated at Attica Correctional Facility. Id. otherwise involved in the incident, his testimony would not be germane to the charge at issue. Id. at ¶¶ 40-41. However, Plaintiff was allowed to call other witnesses including two C.O.'s and another inmate. Id. at ¶ 42. grievance with the Inmate Grievance Program ("IGP") at Plaintiff's appeal, dated December 27, 2006, was Clinton, alleging harassment and unlawful discrimination delegated by Defendant Artus to Captain J. Bell, who on the part of C.O. Appleby, and taking issue with DOCS' affirmed Boyle's decision. Id. at ¶ 21. policy regarding dreadlocks. Id. at ¶¶ 43-44; Pl.'s Decl. at ¶ 22. The Inmate Grievance Review Committee ("IGRC") dismissed the grievance on the grounds that there was a pending misbehavior report against Plaintiff, making the FN3. Generally speaking, inmates placed on issue non-grievable. Def.'s 7.1 Statement at ¶ 45. Plaintiff's keeplock are restricted to their cells for appeal to the Superintendent was referred to the IGP twenty-three (23) hours a day, given one hour for Supervisor, who agreed with the IGRC's determination exercise, and are denied participation in normal and issued a memorandum to Plaintiff denying his appeal. prison activities that occur outside of their cells. Id. at ¶¶ 46-47.

Parker v. Peek-Co, 2009 WL 211371, at *4 n. 6 (N.D.N.Y. Jan. 27, 2009) (citing cases).

On August 1, 2007, Plaintiff was issued another

Misbehavior Report (hereinafter "Third MR") by C.O. J. On February 20, 2007, Plaintiff was issued another Way for failure to comply with a prior direct order to cut Misbehavior Report (hereinafter "Second MR") by C.O. his hair. Id. at ¶ 28. Along with Refusal to Obey a Direct Appleby for again failing to cut his dreadlocks and thereby Order (Rule 106.10), Plaintiff was charged with refusing to comply with both a direct order and a prior Harassment (Rule 107.11) for using obscene language hearing disposition. Id. at ¶¶ 22-23; Pl.'s Decl. at ¶ 21. A during his confrontation with C.O. Way, and Inmate Tier II Hearing was conducted by Lt. Lucia, who found Grooming (Rule 110.33) for failure to tie back his long Plaintiff guilty of Refusal to Obey a Direct Order (Rule hair. Id. at ¶ 31. Lt. Miller conducted a Tier II Hearing on 106.10) and Noncompliance with a Hearing Disposition August 1, 2007, at which time Plaintiff was found guilty (Rule 181 .10), and assessed Plaintiff thirty (30) days of refusing a direct order and having unfastened long hair, keeplock, with corresponding loss of recreation, but not guilty of harassment. Id. at ¶ 32. Plaintiff was commissary, package and phone privileges, and an penalized with thirty (30) days keeplock and loss of additional fifteen (15) days keeplock and loss of privileges commissary, package, and phone privileges for the same invoked from a previous disciplinary hearing amount of time. Id. at ¶ 33. Artus referred Plaintiff's determination. Def.'s 7.1 Statement at ¶¶ 23-24; Pl.'s Decl. appeal of those convictions to Captain Bell, who reviewed at ¶ 25. Artus referred Plaintiff's appeal of those and affirmed the hearing officer's decision. Id. at ¶ 34. convictions to Captain Bell, who reviewed and affirmed the hearing officer's decision on March 5, 2007. Def.'s 7.1 Statement at ¶ 25; Pl.'s Decl. at ¶ 26. By letters dated March 14, 2007, and March 21, 2007, Plaintiff requested On September 12, 2007, C.O. Edwards issued a discretionary review of the March 1, 2007 Tier II Plaintiff a fourth Misbehavior Report (hereinafter "Fourth Hearing disposition, raising issues as to whether or not he MR") concerning his dreadlocks. Id. at ¶¶ 35-36. The should have been credited for time spent in pre-hearing Fourth MR charged Plaintiff with Refusal to Obey a Direct confinement. Def.'s 7.1 Statement at ¶ 26. Artus delegated Order (Rule 106.10) and making a False Statement (Rule that petition to G. Haponik, First Deputy Superintendent, 107.20), the latter charge owing to Plaintiff's alleged who denied the requested relief. Id. at ¶ 27. statement that he was a Rastafarian when, in fact, he was registered as an NOI member. Id. at ¶¶ 36-37; Pl.'s Decl. at ¶ 34. A Tier II Hearing was held on September 17, 2007, before Lt. Miller, who found Plaintiff guilty on both *3 Also on February 20, 2007, Plaintiff filed a charges and sentenced him to thirty (30) days keeplock with concurrent loss of commissary, package, and phone bears the burden to demonstrate through " 'pleadings, privileges. Def.'s 7.1 Statement at ¶ 38. depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any,' " that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (citing Celotex Corp. v. Catrett, On or about November 26, 2007, Plaintiff filed 477 U.S. 317, 323 (1986)). "When a party has moved for another grievance with the IGP, dated November 17, summary judgment on the basis of asserted facts supported 2007, complaining that DOCS' policy regarding as required by [Federal Rule of Civil Procedure 56(e) ] dreadlocks did not comply with DOCS Directive # 4914 and has, in accordance with local court rules, served a and violated his First Amendment rights. Id. at ¶ 48. That concise statement of the material facts as to which it grievance was consolidated with similar grievances filed contends there exist no genuine issues to be tried, those by other inmates at Clinton who were given similar orders facts will be deemed admitted unless properly and/or warnings regarding their hair. Id. at ¶ 49; Pl.'s Decl. controverted by the nonmoving party." Glazer v. Formica at ¶ 36. After conducting an investigation, First Deputy Corp., 964 F.2d 149, 154 (2d Cir.1992). Superintendent W.F. Hulihan issued a determination, dated December 19, 2007, stating that "DOCS policy is that registered Rastafarian religion inmates are the only inmates allowed to have dreadlock hairstyles .... This issue To defeat a motion for summary judgment, the has been addressed in numerous CORC decisions .... non-movant must "set out specific facts showing [that Based on DOCS established policy and CORC decisions, there is]a genuine issue for trial," and cannot rest "merely no compelling evidence has been submitted to support a on allegations or denials" of the facts submitted by the change in policy." Def.'s 7.1 Statement at ¶ 52. Plaintiff movant. FED. R. CIV. P. 56(e); see also Scott v. and the other grievants appealed Hulihan's determination Coughlin, 344 F.3d 282, 287 (2d Cir.2003) ("Conclusory to CORC, which upheld the decision. Id. at ¶ 53. allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). To that *4 Plaintiff wrote Defendant Artus many times during end, sworn statements are "more than mere conclusory his incarceration at Clinton, the issue of his sanctions for allegations subject to disregard ... they are specific and wearing dreadlocks being the predominant topic of such detailed allegations of fact, made under penalty of perjury, correspondences. Id. at ¶ 54; Compl. at ¶ 4. On each and should be treated as evidence in deciding a summary occasion that he received a letter of complaint, request for judgment motion" and the credibility of such statements is an investigation, appeal, etc., from Plaintiff, Artus referred better left to a trier of fact. Scott v. Coughlin, 344 F.3d at the matter to a deputy superintendent or other staff 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d member for review, response, or other necessary action. Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Def.'s 7.1 Statement at ¶ 56. Cir.1995)).

II. DISCUSSION When considering a motion for summary judgment, the court must resolve all ambiguities and draw all

A. Summary Judgment Standard reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d Pursuant to FED. R. CIV. P. 56(c), summary 736, 742 (2d Cir.1998). "[T]he trial court's task at the judgment is appropriate only where "there is no genuine summary judgment motion stage of the litigation is issue as to any material fact and [the moving party] is carefully limited to discerning whether there are any entitled to judgment as a matter of law." The moving party genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution."

Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 Nonetheless, if a plaintiff seeks to bring a § 1983 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a action for supervisory liability, liability on the part of the party is proceeding pro se, the court must "read [his or supervisor may exist her] supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). Nonetheless, in one or more of the following ways: 1) actual direct mere conclusory allegations, unsupported by the record, participation in the constitutional violation, 2) failure to are insufficient to defeat a motion for summary judgment. remedy a wrong after being informed through a report See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991). or appeal, 3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, 4) grossly negligent supervision of B. Personal Involvement subordinates who committed a violation, or 5) failure to act on information indicating that unconstitutional acts 1. Due Process, Retaliation, and Cruel and Unusual were occurring.

Punishment

*5 Plaintiff alleges that Defendant Artus violated his First, Eighth, and Fourteenth Amendment rights by failing Hernandez v. Keane, 341 F.3d 137, 145 (2d to overturn disciplinary sanctions, thereby subjecting him Cir.2003) (citing Colon v. Coughlin, 58 F.3d at 873) to punishments that were cruel and unusual, and by (further citations omitted). allowing others to retaliate against him. Defendant asserts he was not personally involved in any of those alleged constitutional violations.

In this case, Plaintiff does not allege that Defendant

Artus directly participated in any of the alleged harassment, retaliation, due process violations, nor The Second Circuit has held that "personal disciplinary actions that were taken against him. Rather, involvement of defendants in alleged constitutional Plaintiff hangs his hat on the second of the five deprivations is a prerequisite to an award of damages aforementioned ways in which supervisory liability may under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d attach: "failure to remedy a wrong after being informed Cir.1994) (citations omitted). Moreover, "the doctrine of through a report or appeal." Id. at 145. Plaintiff asserts respondeat superior cannot be applied to section 1983 that he sent several grievances, complaint letters, and actions to satisfy the prerequisite of personal appeals of his disciplinary convictions to Artus, who was involvement." Kinch v. Artuz, 1997 WL 576038, at *2 thereby made aware of the allegedly unconstitutional (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 policy regarding dreadlocks and the harassments and F.3d 865, 874 (2d Cir.1995) & Wright v. Smith, 21 F.3d retaliatory misbehavior reports that were being filed at 501) (further citations omitted). Thus, "a plaintiff must against Plaintiff, but that Artus nonetheless failed to plead that each Government-official defendant, through intervene on Plaintiff's behalf. The record establishes that the official's own individual actions, has violated the Plaintiff appealed to Artus at least three of the four Tier II constitution." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. Hearing dispositions that are relevant to this lawsuit, and 1937, 1948 (2009). that he filed several grievances and complaint letters with Artus.FN4 See Dkt. No. 36-5, Dale Artus Decl., dated Apr. Wurzberger, 2006 W L 1285627, at *2 (W.D.N.Y. May 30, 2009, Exs. A-U, Docs. related to Pl.'s Misbehavior 10, 2006) (internal quotation marks and citations omitted). Reps. & Grievances.

In this case, Artus asserts that he referred each and

FN4. Defendant contends that Plaintiff did not every one of Plaintiff's appeals and grievances to appeal the disposition rendered at the fourth subordinate staff members for review, investigation, and Disciplinary Hearing held on September 17, appropriate action. Artus Decl. at ¶ 13. The documentary 2007. As opposed to his appeals on the first three record confirms that contention. Artus referred Plaintiff's Tier II Disciplinary Hearing dispositions, there is appeals of his convictions on the First, Second, and Third no record evidence of any appeal taken as to the MRs to Captain Bell, who reviewed and affirmed the fourth. See generally, Dkt. No. 36-5, Dale Artus dispositions rendered at the corresponding Tier II Decl., dated Apr. 30, 2009, Ex. E, Fourth MR Hearings. Id., Exs. B-D, Interdep't Comm'ns, dated Jan. 3, Docs. Plaintiff has not presented any evidence in 2006, Mar. 5, 2007, & Aug. 16, 2007. In addition, all of opposition to Defendant's claim that he did not the grievances, complaints, and appeals of grievances exhaust the administrative remedies available to mentioned in Plaintiff's Response to Defendant's Motion him with respect to the fourth hearing. See also were forwarded by Artus to staff members in order to Compl. at ¶ 1 (stating that Plaintiff filed "three investigate, render a decision, and take appropriate appeals to Tier II Disciplinary Hearings to actions. Artus Decl. at ¶ 13; Dkt. No. 47, Prince Pilgrim Superintendent Dale Artus" (emphasis added)). Aff., dated Aug. 31, 2009 (hereinafter "Pl.'s Aff.") at p. 5.

Namely, Plaintiff's grievances dated November 9, 2006, November 21, 2006, November 28, 2006, February 20, 2007, July 1, 2007, August 1, 2007, and October 5, *6 However, while personal involvement may be 2007,FN5 were all responded to by Artus's subordinate staff found where a supervisory official personally reviews and members. Pl.'s Aff., Ex. F, Interdep't Mem., dated Nov. denies a grievance, the mere referral of an inmate's 13, 2006; Ex. H, Interdep't Mem., dated Nov. 13, 2006 complaint by a supervisory official to the appropriate staff (referring 11/9/06 grievance to Deputy Sup't for Sec. J. for investigation is not sufficient to establish personal Tedford); Ex. I, Interdep't Mem., dated Nov. 29, 2006 involvement. See Vega v. Artus, 610 F.Supp.2d 185, 199 (referring 11/21/06 grievance to Deputy Sup't of Programs (N.D.N.Y.2009) (quoting Harnett v. Barr, 538 F.Supp.2d L. Turner); Ex. J, Interdep't Mem., dated Nov. 29, 2006 511, 524-25 (N.D.N.Y.2008)); cf. Charles v. New York (referring 11/28/06 grievance to Tedford); Ex. N, State Dep't of Corr. Servs., 2009 WL 890548, at *6 Interdep't Comm'n, dated Feb. 23, 2007 (forwarding (N.D.N.Y. Mar. 31, 2009) (noting that "courts in this 2/20/07 grievance to Deputy Sup't of Security Servs. S. circuit have held that when a supervisory official receives Racette); Exs. Q-S, Interdep't Comm'ns, dated July 5, Aug. and acts on a prisoner's grievance or otherwise reviews 7 & Oct. 10, 2007 (referring grievances dated 7/1/07, and responds to a prisoner's complaint, a sufficient claim 8/1/07, and 10/5/07 to IGP Supervisor T. Brousseau). for personal involvement has been stated" (emphasis in original) (citation omitted)). Moreover, "mere linkage in the prison chain of command is insufficient to implicate a state commissioner of corrections or a prison F N 5 . P l a i n t i f f a l s o m e n t i o n s superintendent in a § 1983 claim." Richardson v. Goord, complaints/grievances filed on October 22, 2006, 347 F.3d 431, 435 (2d Cir.2003) (internal quotation marks and August 30, 2007. Pl.'s Aff. at p. 5. The only and citation omitted). Even "the fact that an official correspondences on the record with those ignored a letter alleging unconstitutional conduct is not corresponding dates are a letter Plaintiff wrote to enough to establish personal involvement." Flemming v. Assistant Deputy Superintendent S. Garman on October 22, 2006, regarding his self-nomination the notable exception of his First Amendment religious for Inmate Liaison Committee Representative, expression claim) to be without merit. and a letter to IGP Supervisor T. Brousseau dated August 30, 2007, in which Plaintiff enclosed two previously filed grievances that allegedly had not been acknowledged at that a. Due Process point. Pl.'s Decl., Ex. E & H, Lts. dated Oct. 22, 2006, & Aug. 30, 2007. Neither of these letters In his Complaint, Plaintiff appears to make a due was sent to Artus, nor did they implicate process claim based on "prejudicial" hearings and other Plaintiff's issues regarding his dreadlocks. unspecified procedural violations that occurred during those Hearings. Compl. at ¶ 10; Pl.'s Aff. at ¶ 15; see also Pl.'s Decl. at ¶ 24 (stating that the proceedings were "hollow"). This claim is wholly conclusory. Plaintiff does *7 Because Plaintiff has failed to rebut Defendant's not identify which of the four Tier II Disciplinary documentary case that his involvement was limited to Hearings was conducted in a prejudicial manner, nor does forwarding Plaintiff's disciplinary appeals, complaints, he describe any of the alleged procedural violations that grievances, and appeals of grievances to other staff occurred. See Bell. Atl. Corp. v. Twombly, 550 U.S. at 545 members, we recommend that all of Plaintiff's claims, with (stating that a valid claim must have enough factual the exception of his RLUIPA and First Amendment allegations "to raise a right to relief above the speculative religious expression claims,FN6 be dismissed for lack of level"). In short, Plaintiff has not stated a plausible due personal involvement. See Sealey v. Giltner, 116 F.3d 47, process claim. 51 (2d Cir.1997) (holding that the referral of appeals down the chain of command does not create personal involvement on the part of the referee); see also Brown v. Goord, 2007 WL 607396, at * 10 (N.D.N.Y. Feb. 20, Even if we were to look past the conclusory nature of 2007) (citing cases for the proposition that a supervisor Plaintiff's due process claim, we would still recommend may "delegat[e] to high-ranking subordinates the dismissal of such claim. In order to state a procedural due responsibility to read and respond to ... complaints by process claim pursuant to the Fourteenth Amendment, an prisoners" without becoming personally involved); Cruz inmate must first establish that he enjoys a protected v. Edwards, 1985 WL 467, at *4 (S.D.N.Y. Mar. 25, liberty interest. Arce v. Walker, 139 F.3d 329, 333 (2d 1985) (finding defendant superintendent was not Cir.1998) (citing Kentucky Dep't of Corrs. v. Thompson, personally involved when he referred the appeal to the 490 U.S. 454, 460 (1989)). The Supreme Court held in deputy superintendent). Sandin v. Conner that state created liberty interests shall be limited to those deprivations which subject a prisoner to "atypical and significant hardship ... in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 FN6. We discuss the personal involvement issues U.S. 472, 484 (1995). related to Plaintiff's RLUIPA and First Amendment religious expression claims below in Part II.C.2.

Here, Plaintiff alleges that he was sentenced to and served three separate thirty (30) day and one forty-five (45) day period of keeplock with reduced privileges, but Moreover, even if we were to look past Plaintiff's alleges no additional aggravating circumstances present failure to demonstrate Artus's personal involvement, we during that confinement. Courts in this Circuit have held would still find all of his constitutional claims (again with that such periods of keeplock, absent additional egregious circumstances, are not "atypical and significant" so as to (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d create a liberty interest and thereby trigger the protections Cir.1983) & Franco v. Kelly, 854 F.2d 584, 590 (2d of the Due Process Clause. See Rivera v. Goord, 2008 WL Cir.1988)), overruled on other grounds by Swierkiewicz 5378372, at *2-3 (N.D.N.Y. Dec. 22, 2008) (holding that v. Sorema N.A., 534 U.S. 506 (2002). 40 days of room restriction "did not constitute a constitutionally cognizable liberty deprivation"); Uzzell v. Scully, 893 F.Supp. 259, 263 (S.D.N.Y.1995) (45 days of keeplock is not atypical and significant), Rivera v. In order to prevail on a retaliation claim, a plaintiff Coughlin, 1996 WL 22342, at *5 (S.D.N.Y. Jan. 22, bears the burden to prove that (1) he engaged in 1996) (89 days in keeplock does not create a liberty constitutionally protected conduct; (2) prison officials interest). Indeed, courts have roundly rejected the notion took an adverse action against him; and (3) a causal that such a short period of confinement, without additional connection exists between the protected speech and the hardships, creates a liberty interest even when that adverse action. Bennett v. Goord, 343 F.3d 133, 137 (2d confinement is completely segregated, such as when an Cir.2003) (citations omitted); see also Gill v. Pidlypchak, inmate is sent to the Special Housing Unit ("SHU"). See 389 F.3d 379, 380 (2d Cir.2004) (citation omitted). Sealey v. Giltner, 197 F.3d 578, 589-90 (2d Cir.1999) (101 days in normal SHU conditional was not atypical or significant) (cited in Ochoa v. DeSimone, 2008 WL 4517806, at *4 (N.D.N.Y. Sept. 30, 2008) (30 days in A plaintiff may meet the burden of proving an SHU, without more, did not create a liberty interest)); inappropriate retaliatory motive by presenting Thompson v. LaClair, 2008 WL 191212, at *3 (N.D.N.Y. circumstantial evidence of a retaliatory motive, such as Jan. 22, 2008) (30 days in SHU does not create a liberty temporal proximity, thus obviating the need for direct interest). Therefore, we find that Plaintiff has failed to evidence. Bennett v. Goord, 343 F.3d at 138-39 (holding allege he suffered from an atypical and significant that plaintiff met his burden in proving retaliatory motive hardship and it is recommended that his due process by presenting circumstantial evidence relating to, inter claims be dismissed. alia, the temporal proximity of allegedly false misbehavior reports and the subsequent reversal of the disciplinary charges on appeal as unfounded). Other factors that can infer an improper or retaliatory motive include the b. Retaliation inmate's prior good disciplinary record, vindication at a hearing on the matter, and statements by the defendant *8 Plaintiff claims that the disciplinary actions taken regarding his motive for disciplining plaintiff. McEachin against him by DOCS staff members constituted v. Selsky, 2005 WL 2128851, at *5 (N.D.N.Y. Aug. 30, retribution for grievances he filed and that Artus failed to 2005) (citing Colon v. Coughlin, 58 F.3d 865, 872-73 (2d protect him from such reprisals. Compl. at ¶¶ 4 & 8; Pl.'s Cir.1995)).

Aff. at ¶¶ 11 & 19.

Moreover, "in the prison context [the Second Circuit

The Second Circuit has stated that courts must has] previously defined 'adverse action' objectively, as approach prisoner retaliation claims "with skepticism and retaliatory conduct 'that would deter a similarly situated particular care," since "virtually any adverse action taken individual of ordinary firmness from exercising ... against a prisoner by a prison official-even those otherwise constitutional rights.' " Gill v. Pidlypchak, 389 F.3d at 381 not rising to the level of a constitutional violation-can be (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003) characterized as a constitutionally proscribed retaliatory (emphasis in original). This objective test will apply even act." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) though a particular plaintiff was not himself deterred. Id.

If the plaintiff can carry that burden, the defendants will valid basis alone, defendants should prevail."). Although still be entitled to summary judgment if they can show, by Plaintiff has challenged DOCS' hair policy in this lawsuit, a preponderance of the evidence, that they would have there is no suggestion that at the time he was disciplined, taken the same action in the absence of the prisoner's First that policy was not valid. Thus, because there is unrefuted Amendment activity. Davidson v. Chestnut, 193 F.3d 144, evidence that Plaintiff was disciplined pursuant to a valid 148-49 (2d Cir.1999); see Hynes v. Squillace, 143 F.3d DOCS' policy, his retaliation claims must fail. 653, 657 (2d Cir.1998); Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994).

c. Cruel and Unusual Punishment

*9 In this case, Plaintiff alleges that the disciplinary Although unclear, it appears that Plaintiff asserts an actions taken against him were done in retaliation for Eighth Amendment claim based on the conditions of his grievances he filed. Pl.'s Aff. at ¶ 19. The Supreme Court confinement while he served his disciplinary sanctions, has noted that the right to petition government for redress which included serving three thirty (30) day and one of grievances is "among the most precious of the liberties forty-five (45) day periods in keeplock, loss of phone and safeguarded by the Bill of Rights." See United Mine commissary privileges, no regular visits, twenty-three (23) Workers of Am., Dist. 12 v. Illinois State Bar Ass'n, 389 hour confinement, and only three showers a week. Compl. U.S. 217, 222 (1967). The Second Circuit has held that at ¶ 6. within the prison context, "inmates must be 'permit[ted] free and uninhibited access ... to both administrative and judicial forums for the purpose of seeking redress of grievances against state officers.' " Franco v. Kelly, 854 In order to state a valid conditions of confinement F.2d at 589 (quoting Haymes v. Montanye, 547 F.2d 188, claim under the Eighth Amendment, a plaintiff must 191 (2d Cir.1976)) (emphasis and alterations in original). allege: (1) the conditions were so serious that they Thus, Plaintiff has met his burden of showing he was constituted a denial of the "minimal civilized measure of engaged in constitutionally protected conduct. life's necessities," and (2) the prison officials acted with "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 297-99 (1991) (citation omitted) (cited in Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir.1996)). Here, However, the record is clear that all of the Plaintiff does not allege that he was denied the "minimal disciplinary actions taken against Plaintiff were due to his civilized measure of life's necessities," rather, he states failure to abide by orders directing his compliance with that he was placed on keeplock and denied various DOCS' hair policy. See Artus Decl ., Exs. B-E, privileges for three thirty (30) day and one forty-five (45) Disciplinary Packets for MR's 1-4. Therefore, even day periods.FN7 These conditions are not so severe as to assuming Plaintiff could show that such disciplinary violate the Eighth Amendment's ban on cruel and unusual actions were motivated by retaliatory animus (an punishment. See Parker v. Peek-Co, 2009 WL 211371, at assumption that finds no basis in the record), Plaintiff's *4 (N.D.N.Y. Jan. 27, 2009) ("It is well established ... that retaliation claims would fail because it is undisputed that placement in keeplock confinement under the conditions his dreadlocks violated DOCS' policy, and thus, the DOCS normally associated with that status does not violate an employees who disciplined Plaintiff can easily show that inmate's Eighth Amendment rights.") (citation omitted); they would have taken the same disciplinary actions even see also Jackson v. Johnson, 15 F.Supp.2d 341, 363 in the absence of his protected conduct. See Davidson v. (S.D.N.Y.1998) ("The mere placement in keeplock for 99 Chestnut, 193 F.3d at 149 ("At the summary judgment days is not sufficiently egregious to constitute cruel and stage, if the undisputed facts demonstrate that the unusual punishment under the Eighth Amendment") challenged action clearly would have been taken on a (citing cases). Therefore, it is recommended that this claim be dismissed as a matter of law. No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government

FN7. Plaintiff also alleges, in conclusory fashion, demonstrates that imposition of the burden on that that he was denied access to the law library personduring his periods in keeplock confinement.

Compl. at ¶ 6. To the extent Plaintiff attempts to raise an access to the courts claim under the First Amendment, any such claim would fail for want (1) is in furtherance of a compelling governmental of personal involvement and because Plaintiff interest; and has not alleged any injury resulting from his alleged denial of access to the law library. See Lewis v. Casey, 518 U.S. 343, 353 (1996).

(2) is the least restrictive means of furthering that compelling governmental interest.

C. RLUIPA and First Amendment Claims

1. Merits of Plaintif's Claims 42 U.S.C. § 2000cc-1(a).

*10 RLUIPA "protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and Thus, Plaintiff can establish a RLUIPA violation by accommodation of exercise of their religion." FN8 Cutter v. proving that the prison regulations constitute a "substantial Wilkinson, 544 U.S. 709, 721 (2005). RLUIPA provides burden" on his religious exercise without promoting a that compelling governmental interest that is advanced through the least restrictive means. As such, RLUIPA places a much higher burden on defendants than does the First Amendment, which, as articulated in the case of Turner v.. FN8. RLUIPA was enacted in the wake of the Safely, requires only that a burden be "reasonably related Supreme Court's invalidation of the Religious to legitimate penological interests," not the least restrictive Freedom Restoration Act of 1993 ("RFRA") in means of protecting compelling governmental interests. City of Boerne v. Flores, 521 U.S. 507 (1997), 482 U.S. 78, 89 (1987). on the grounds that it exceeded Congress's power under Section 5 of the Fourteenth Amendment. "RLUIPA corrected the constitutional infirmity of RFRA by invoking federal authority under the The first issue is whether Plaintiff's freedom of Spending Clauses to reach any program or religious expression has been substantially burdened. activity that receives federal financial assistance, Plaintiff is a registered NOI member. The NOI does not thereby encompassing every state prison." require him to wear dreadlocks, however, Plaintiff asserts Fluellen v. Goord, 2007 WL 4560597, at *5 that he wears dreadlocks pursuant to his own personal (W.D.N.Y. Mar. 12, 2007) (citations omitted). faith and interpretations of the Qu'ran and Bible. Pl.'s

Decl. at ¶ 43. As Plaintiff explains, his refusal to cut his hair is rooted in the spiritual 36-3, Pl.'s Dep. at p. 12. In addition, Plaintiff's continued understanding that he is "one" with the Original Man, refusal to cut his hair despite the successive punishments Blackman, who is Allah, as Plaintiff is a Blackman thus he received arguably supports his professed sincerity. claiming the Holy Qu'ran and Bible as his blueprint of Simply put, there is nothing in the record undermining the his lifestyle and hair: sincerity of Plaintiff's religious beliefs.

A. Holy Qu'ran provision, surah (Chapter) 2, verse *11 RLUIPA does not define "substantial burden," 196: "And accomplish the pilgrimage and the visit for however, the Second Circuit has assumed that "[s]ince ALLAH. But if you are prevented, send whatever substantial burden is a term of art in the Supreme Court's offering is easy to obtain; and shave not your heads free exercise jurisprudence ... Congress, by using it, until the offering reaches its destination." planned to incorporate the cluster of ideas associated with the Court's use of it." Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348 (2d Cir.2007) (citations omitted). The Supreme Court has held that a substantial B. Holy Bible, Numbers, Chapter 6, verse 5, burden is one that "put[s] substantial pressure on an commonly referred to as the Nazarite Vow 8[:] "All adherent to modify his behavior and to violate his beliefs." the days of the vow of his Naziriteship no razor Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 should pass over his head; until the days that he U.S. 707, 717-718 (1981) (cited in Westchester Day Sch. should be separated to (Allah) God come to the full, v. Vill. of Mamaroneck ). In this case, there can be little he should prove holy by letting the locks of the hair of doubt that the DOCS' policy in question substantially his head grow." burdens Plaintiff's religious exercise by forcing him to choose between cutting his hair and being subjected to disciplinary punishment. In Amaker v. Goord, 2007 WL 4560596 (W.D.N.Y. Mar. 9, 2007), the Honorable H. Id. at ¶ 43 (emphasis in original). Kenneth Schroeder, Jr., United States Magistrate Judge for the Western District of New York, addressed a motion for a preliminary injunction on facts nearly identical to those established here, and concluded that "forcing an individual Defendant contends that because Plaintiff's desire to who sincerely believes that he should wear dreadlocks as wear dreadlocks is "merely a personal choice and is not part of his religious practice to either forgo his affiliations based upon NOI tenant or dogma," DOCS' policy does not with the Nation of Islam or face discipline constitutes a substantially burden his sincerely held religious beliefs. substantial burden upon that individual's religious Dkt. No. 36, Def.'s Mem. of Law at p. 31; see also practice." 2007 WL 4560596, at *6; FN9 see also Singh v. Leonard Decl. at ¶ 65. RLUIPA defines "religious Goord, 520 F.Supp.2d 487, 498 (S.D.N.Y.2007) (noting exercise" as "any exercise of religion, whether or not that "demonstrating a substantial burden is not an onerous compelled by, or central to, a system of religious belief." task for the plaintiff"). 42 U.S .C. § 2000cc-5(7)(A). Thus, the question of whether Plaintiff's personal religious beliefs are founded in any particular established religion is inapposite.

However, RLUIPA "does not preclude inquiry into the FN9. The district court adopted Judge sincerity of a prisoner's professed religiosity." Cutter v. Schroeder's recommendation that the preliminary Wilkinson, 544 U.S. at 725 n. 13. On that subject, the injunction be granted because the prisoners had record shows that Plaintiff has been growing dreadlocks shown a likelihood of success on the merits of for religious reasons since approximately 1993. Dkt. No. their claim that DOCS' policy precluding NOI members from wearing dreadlocks violated there is reason to believe that contraband may be RLUIPA. Amaker v. Goord et al., 2007 WL discovered by such a search. An inmate may be 4560595 (W.D.N.Y. Dec. 18, 2007). subjected to such search at any time that a pat frisk, strip search, or strip frisk is being conducted. Consistent with Directive # 4910, during a pat frisk, an inmate will be required to run fingers through [his] hair. During a strip Once an RLUIPA plaintiff meets his burden of search, an inmate may be subjected to an inspection of showing a substantial burden on his exercise of religion, his or her hair. During a strip frisk, an inmate will run the evidentiary burden shifts to the defendant, who must his or her hands through the hair. show that the regulation (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering such interest. 42 U.S.C. § 2000cc-2(b). On the first point, Defendant has asserted an Id. interest in maintaining prison security, which he alleges could be undermined if more prisoners are allowed to wear dreadlocks, which can be used to conceal weapons.

Def.'s Mem. of Law at pp. 32-33; Dkt. No. 36-8, Lucien J. DOCS Deputy Commissioner for Correctional LeClaire, Jr., Decl., dated Apr. 30, 2009, at ¶¶ 7-21; Facility Security Lucien J. LeClaire, Jr., responds to that Leonard Decl. at ¶¶ 48-57 & 68. Without question, DOCS' argument in his Declaration, asserting that "[l]arge, long interest in safety and security is a compelling dreads and the matted hair close to the scalp create a governmental interest. See Cutter v. Wilkinson, 544 U.S. hairstyle that is extremely difficult to visually inspect and at 725 n. 13. nearly impossible for inmates to run their fingers through to allow staff to insure that no contraband is contained therein." LeClaire Decl. at ¶ 18. LeClaire further argues that if an inmate need only declare a personally held But, in order to defeat Plaintiff's RLUIPA claim, religious belief in growing dreadlocks in order to be given Defendant must also show that DOCS' policy is the least permission to do so, DOCS will have no ability to restrict restrictive means of furthering its compelling interest in the number of inmates wearing dreadlocks. Id. at ¶ 19. The security. We believe there are questions of material fact on Court does not overlook the weight of these arguments nor that issue. Despite the alleged security concerns, DOCS' the deference courts must accord prison officials when policy allows inmates of the Rastafarian faith to wear analyzing their policies. However, we question the dreadlocks. Leonard Decl. at ¶ 63. Also, Directive # 4914 assumption that permitting dreadlocks to be worn by allows all inmates to grow their hair long, provided they inmates whose sincerely held religious beliefs require wear it pulled back in a ponytail, and also allows inmates them would open the proverbial floodgates. Under DOCS' to wear their hair in a "Afro-natural" style. Leonard Decl., current policy, any nefariously motivated inmate need only Ex. B, DOCS Directive # 4914(III)(B)(2)(a),(d). Thus, register himself as a Rastafarian in order to be given DOCS affords a degree of leeway with respect to inmates' permission to wear dreadlocks, and there is no evidence hairstyles, but has drawn a line in the sand with respect to presented to the Court that such policy has resulted in a dreadlocks worn by non-Rastafarian prisoners. Plaintiff substantial increase in the Rastafarian/dreadlock-wearing asserts that the least restrictive means of ensuring security inmate population. Leonard Decl. at ¶ 63; see also Artus is already provided in DOCS Directive # 4914(III) Decl., Ex. D, Misbehavior Rep., dated Aug. 1, 2007 (B)(2)(e), which states that (stating "[i]nmate Pilgrim was given a direct order on July 1st 2007 to cut his dreadlocks or become a registered Rastafarian") & Leonard Decl., Ex. C, CORC Decision, dated Feb. 9, 2005 (ruling that "staff have correctly *12 [a]n inmate may be subjected to a hair search when directed the grievant to remove his dreadlocks, or change his religious designation"). Moreover, because DOCS has deemed its current policy adequate to protect its safety interests with respect to all of the other permitted hairstyles as well as for Rastafarian inmates with FN10. In Salahuddin, the Second Circuit left dreadlocks, a material question of fact exists as to why that open the question of whether a plaintiff bringing policy would not also suffice for inmates in Plaintiff's a free exercise claim under the First Amendment position. See Amaker v. Goord et al., 2007 W L 4560595. must make a threshold showing that his sincerely held religious beliefs have been "substantially burdened." Salahuddin v. Goord, 467 F.3d 263, 274-75 n. 5 (2d Cir.2006). See also Pugh v. Even under a First Amendment analysis, questions of Goord, 571 F.Supp.2d 477, 497 n. 10 fact remain. Courts must analyze free exercise claims by (S.D.N.Y.2008) (noting that the Second Circuit evaluating "1) whether the practice asserted is religious in has twice declined to answer the question). To the person's scheme of beliefs, and whether the belief is the extent that heightened standard applies to all sincerely held; 2) whether the challenged practice of the free exercise claims, Plaintiff has met it by prison officials infringes upon the religious belief; and 3) showing that DOCS' policy substantially burdens whether the challenged practice of the prison officials his religious beliefs. furthers some legitimate penological objective." Farid v.

Smith, 850 F.2d 917, 926 (2d Cir.1988) (citations omitted).

DOCS has a compelling and legitimate penological interest in maintaining prison security. The policy in question, which seeks to limit the number of prisoners who *13 The first two prongs have been met in this case. are allowed to wear dreadlocks, which can be used to hide As discussed above, there is nothing in the record small weapons, is rationally related to that interest. The undermining the sincerity of Plaintiff's religious beliefs, other remaining three factors, however, weigh against nor any suggestion that Plaintiff is personally motivated by Defendant. On the second Turner factor, the Court is not fraud or is otherwise attempting to deceive DOCS aware of any other means of exercising this particular officials. And, on the second prong, Plaintiff has shown religious belief other than physically growing dreadlocks. that DOC S' policy substantially burdens his religious As to the third factor, as previously discussed, questions beliefs. See Salahuddin v. Goord, 467 F.3d 263, 274-75 of fact exist as to what effect the accommodation of (2d Cir.2006).FN10 As to the third prong, the Supreme Plaintiff's beliefs would have on the entire prison system, Court has stated that "when a prison regulation impinges especially considering the fact that DOCS' current policy on inmates' constitutional rights, the regulation is valid if allows any inmate who self-identifies as Rastafarian to it is reasonably related to legitimate penological interests." wear dreadlocks. For the same reasons, we believe a Turner v. Safley, 482 U.S. at 89. Courts look to the question of fact exists as to whether there are ready following four factors in determining the reasonableness alternatives to DOCS' current policy, including the of a prison regulation: 1) whether there is a valid and procedures already applied to those whom DOCS rational relationship between the prison regulation and the currently allows to wear dreadlocks and other long hair legitimate government interests asserted; 2) whether the styles. Overall, there are material questions of fact as to inmates have alternative means to exercise the right; 3) the the reasonableness of DOCS' policy Plaintiff has impact that accommodation of the right will have on the challenged. See Benjamin v. Coughlin, 905 F.2d 571, prison system and resources generally; and 4) whether 576-77 (2d Cir.), cert. denied, 498 U.S. 951 (1990) ready alternatives exist which accommodate the right and (affirming district court's finding that DOCS' policy satisfy the governmental interest. Id. at 89-91 (citations requiring Rastafarian inmates to cut their dreadlocks upon omitted). arrival into DOCS' custody was not reasonably related to the asserted penological interests when defendants did not 42 U.S.C. § 2000cc-5(4)(A). Thus, RLUIPA protects demonstrate that the religious accommodation sought by inmates against actions taken by a governmental entity or prisoners would have "more than a de minimis effect on person acting under color of state law; in other words, valid penological interests"); see also Francis v. Keane, there must be some personal involvement on the part of an 888 F.Supp. 568, 577 (S.D.N.Y.1995) (denying summary individual defendant or government agency in the alleged judgment where two Rastafarian C.O.'s challenged DOCS' RLUIPA violation. grooming regulation prohibiting dreadlocks for officers);

Amaker v. Goord, 2007 WL 4560595.

FN11. The Court's research uncovered no ruling that a plaintiff need not show personal 2. Personal Involvement involvement in order to bring a valid RLUIPA claim.

*14 Although neither party addresses the issue in their respective submissions to the Court, there is a question as to whether Plaintiff has sufficiently alleged personal involvement with respect to his RLUIPA claim. Neither In this case, the uncontroverted record shows that the Supreme Court nor the Second Circuit have directly Artus took no actions relevant to Plaintiff's claims beyond addressed the issue of whether personal involvement is a referring Plaintiff's complaints, grievances, and appeals to prerequisite for any valid RLUIPA claim, as it is under § his subordinates. Artus Decl. at ¶ 13. Moreover, the record 1983. However, district courts in this Circuit and does not show, and it is not alleged, that Artus was the elsewhere have held that personal involvement is a creator of the DOCS' policy Plaintiff is challenging. Id. at necessary component of valid RLUIPA claims.FN11 See ¶ 8 (noting that the policy is based on DOCS Directive # Joseph v. Fischer, 2009 WL 3321011, at *18 (S.D.N.Y. 4914 and relevant CORC determinations, which have the Oct. 8, 2009) (concluding that the "personal involvement effect of Directives). Plaintiff has not sued DOCS, nor any of a defendant in the alleged substantial burden of DOCS employee responsible for creating and/or enforcing plaintiff's exercise of religion is a prerequisite to stating a the challenged policy. claim under RLUIPA") (citing cases); Hamilton v. Smith, 2009 WL 3199520, at *9 (N.D.N.Y. Sept. 30, 2009) (dismissing RLUIPA claim for want of personal involvement on the part of defendants); Jacobs v. However, considering Plaintiff's pro se status, the lack Strickland, 2009 WL 2940069, at *2 (S.D.Ohio Sept. 9, of finality in this Circuit on the issue of personal 2009) (finding no clear error of law in magistrate judge's involvement in RLUIPA claims, and judicial economy, the holding that personal involvement is a necessary element Court recommends that DOCS and DOCS Commissioner of RLUIPA claims) (citing Greenberg v. Hill, 2009 WL Brian Fischer be substituted as proper Defendants to this 890521, at *3 (S.D.Ohio Mar. 31, 2009); Alderson v. action solely as to Plaintiff's RLUIPA and First Burnett, 2008 WL 4185945, at *3 (W.D.Mich. Sept. 8, Amendment free exercise claims.FN12 See Zuk v. Gonzalez, 2008)). We are in agreement with that conclusion. 2007 WL 2163186, at *2 (N.D.N.Y. July 26, 2007) RLUIPA provides that "[n]o government" shall (adding a proper defendant, sua sponte, in the interest of substantially burden the religious exercise of confined judicial economy and in light of the plaintiff's pro se persons, 42 U.S.C. § 2000cc-1(a), and defines status); see also FED. R. CIV. P. 21 ("Parties may be "government" as "(i) a State, county, municipality, or dropped or added by order of the court on motion of any other governmental entity created under the authority of party or on its own initiative at any stage of the action and the State; (ii) any branch, department, agency, on such terms as are just"); Dockery v. Tucker, 2006 WL instrumentality, or official of an entity listed in clause (i); 5893295, at *7 (E.D.N.Y. Sept. 6, 2006) (adding sua and (iii) any other person acting under color of State law," sponte the United States as a defendant in a FTCA claim brought by a pro se plaintiff); Ciancio v. Gorski, 1999 WL courts have held that because RLUIPA does not make an 222603, at *1 (W.D.N.Y. Apr. 14, 1999) (substituting the unequivocal waiver of sovereign immunity with respect to proper defendant sua sponte "in the interest of eliminating monetary damages against state defendants in their official undue complication without affecting the substantial rights capacities, such relief is not available. See Pugh v. Goord, of the parties"). 571 F.Supp.2d at 509 (" 'To sustain a claim that the [g]overnment is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims.' "(quoting Lane FN12. Defendant asserts that Plaintiff's claims v. Pena, 518 U.S. 187, 192 (1996)); see also Bock v. are moot because he has been transferred from Gold, 2008 W L 345890, at *6; El Badrawi v. Dept. of Clinton Correctional Facility, where Artus is the Homeland Sec., 579 F.Supp.2d 249, 258-63 Superintendent, to Southport Correctional (D.Conn.2008). In addition, courts in this Circuit have Facility. Def.'s Mem. of Law at p. 38 (quoting held that to allow claims against defendants in their Salahuddin v. Goord for the proposition that "an individual capacities would raise serious constitutional inmate's transfer from a prison facility generally questions about whether RLUIPA exceeds Congress's renders moot any claims for declaratory powers under the Spending Clause (Article 1, Section 9, judgment and injunctive relief against the Clause 1) of the Constitution.FN14 See Pugh v. Goord, 571 officials of that facility."). However, because we F.Supp.2d at 506-07; Vega v. Lantz, 2009 WL 3157586, recommend that DOCS and Commissioner at *4 (D.Conn. Sept. 25, 2009) (holding that RLUIPA Fischer be added to the case as Defendants, this does not allow damages against defendants in their mootness argument is without merit. individual capacities and citing cases). Essentially, courts have found that because Congress enacted RLUIPA pursuant to the Spending Clause, not its power to enforce the provisions of the Fourteenth Amendment under 3. Monetary Damages under RLUIPA Section 5 of the same, there is no constitutional basis for Congress to enforce RLUIPA as to individual defendants, *15 Defendant argues that Plaintiff is barred from who are not parties to the "contract" between the federal seeking monetary damages for the alleged RLUIPA government and the states pursuant to which, as a normal violation. Def.'s Mem. of Law at p. 29. RLUIPA allows practice, the former provides funding to the latter in for "appropriate relief against a government," 42 U.S.C. exchange for compliance with certain conditions. See § 2000cc-2(a), but does not specify what types of relief it Sossamon v. Lone Star State of Texas, 560 F.3d 316, 328 makes available. The Second Circuit has not yet ruled on (5th Cir.2009) (holding that "individual RLUIPA the issue, and there appears to be a divide amongst the defendants are not parties to the contract in their other circuit courts that have addressed it. See Bock v. individual capacities") (cited in Vega v. Lantz, 2009 WL Gold, 2008 WL 345890, at *5-7 (D.Vt. Feb. 7, 2008) & 3157586, at *4); see also Pugh v. Goord, 571 F.Supp.2d Pugh v. Goord, 571 F.Supp.2d 477, 506-08 at 506-07 (citing Smith v. Allen, 502 F.3d 1255, 1275 (S.D.N.Y.2008) (both noting the split among circuit and (11th Cir.2007) for the same proposition). Because district courts). interpreting RLUIPA to allow suits against individuals would call into question the constitutionality of the statute itself, courts have applied the canon of constitutional avoidance FN15 in concluding that RLUIPA does not permit However, the district courts in this Circuit have held such causes of action. See Bock v. Gold, 2008 WL that monetary damages are not available under RLUIPA 345890, at *6. against state defendants in either their official or individual capacities.FN13 Looking to the Eleventh Amendment's protection of the states' sovereign immunity, FN13. Research has not revealed any district D. Qualified Immunity court in this Circuit that has concluded otherwise. Defendant asserts the affirmative defense of qualified immunity. Qualified immunity shields "government officials from liability for civil damages when their conduct does not violate 'clearly established statutory or FN14. Both the Eleventh and the Fifth Circuits constitutional rights of which a reasonable person would have explicitly held that Congress enacted have known.' " African Trade & Info. Ctr., Inc. v. RLUIPA pursuant to its power under the Abromaitis, 294 F.3d 355, 359 (2d Cir.2002) (quoting Spending Clause, not the Commerce Clause. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Sossamon v. Lone Star State of Texas, 560 F.3d Mollica v. Volker, 229 F.3d 366, 370 (2d Cir.2000). 316, 329 n. 34 (5th Cir.2009); Smith v. Allen, Accordingly, governmental officials sued for damages 502 F.3d 1255, 1274 n. 9 (11th Cir.2007). We "are entitled to qualified immunity if 1) their actions did agree with those courts that because "there is no not violate clearly established law, or 2) it was objectively evidence concerning the effect of the substantial reasonable for them to believe that their actions did not burden" on interstate commerce, RLUIPA must violate such law." Warren v. Keane, 196 F.3d 330, 332 necessarily be Spending Clause legislation. See (2d Cir.1999) (citation omitted).

Sossamon v. Lone Star State of Texas, 560 F.3d at 329 n. 34.

Should the district court adopt this Court's recommendations, Plaintiff's RLUIPA and First FN15. "The constitutional avoidance canon Amendment religious expression claims against DOCS states that when a statute is susceptible to two and Commissioner Fischer are all that will remain in this possible constructions, and one raises serious case. Qualified immunity does not apply to suits against constitutional questions, the other construction individuals in their official capacities. See Kentucky v. must be adopted." Bock v. Gold, 2008 WL Graham, 473 U.S. 159, 167 (1985) ("The only immunities 345890, at *6. that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment."). We have already held that, with respect to Plaintiff's RLUIPA *16 Based on the above reasoning, we agree with the claim, monetary damages are not available against other district courts in this Circuit that RLUIPA does not defendants in their individual or official capacities. As allow monetary damages against individual defendants in such, Plaintiff's RLUIPA claims will be limited to their individual or official capacities. See Pugh v. Goord, injunctive and declaratory relief against DOCS employees 571 F.Supp.2d at 507 (citing cases); see also Sweeper v. in their official capacities. Therefore, qualified immunity Taylor, 2009 WL 815911, at *9 (N.D.N .Y. Mar. 27, has no bearing on Plaintiff's RLUIPA claim. See, e.g., 2009) (holding that no monetary damages are available Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d under RLUIPA). Therefore, we recommend that Plaintiff's Cir.1995) ( "[T]he defense of qualified immunity protects claims for monetary and punitive damages brought only individual defendants sued in their individual pursuant to RLUIPA be dismissed. However, because capacity, not governmental entities ... and it protects only Plaintiff has requested both declaratory and injunctive against claims for damages, not against claims for relief, our finding that RLUIPA does not allow monetary equitable relief."); see also Rodriguez v. Phillips, 66 F.3d damages does not totally moot his claims. 470, 481 (2d Cir.1995) (noting that qualified immunity does not apply to claims for injunctive and declaratory relief against a defendant in his official capacity).

be substituted as Defendants and Plaintiff will be limited to non-monetary relief against those Defendants under *17 Plaintiff's claim for damages under the First both RLUIPA and § 1983.

Amendment, however, is subject to a qualified immunity analysis. On that issue, we find that it is not clearly established law that DOCS' hair policy, which allows only Rastafarians to wear dreadlocks, violates the Free Exercise III. CONCLUSION Clause of the First Amendment. Although the Second Circuit has previously ruled that Rastafarians have a First For the reasons stated herein, it is hereby Amendment right to maintain their dreadlocks absent a valid penological interest that requires their preclusion, Benjamin v. Coughlin, 905 F.2d at 576-77, neither the Supreme Court nor the Second Circuit has ruled that other, RECOM M ENDED, that Defendant's Motion for non-Rastafarian inmates are similarly entitled to such Summary Judgment (Dkt. No. 36) be GRANTED in part protection. See Redd v. Wright, 597 F.3d 532, 2010 WL and DENIED in part in accordance with the above 774304, at *4 (2d Cir.2010) (citing cases for the Report-Recommendation; and it is further proposition that constitutional rights should be defined with "reasonable specificity" for qualified immunity purposes and granting qualified immunity because a DOCS policy had not been held unconstitutional at the RECOM M ENDED, that DOCS and Commissioner time it was enforced against the plaintiff). As such, under Brian Fischer be substituted as Defendants pursuant to pre-existing law a reasonable DOCS official would not FED. R. CIV. P. 21; and it is further have realized that his creation or enforcement of DOCS' hair policy was unlawful. See Dean v. Blumenthal, 577 F.3d 60, 68 (2d Cir.2009) (citing Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991)). RECOM M ENDED, that Defendant Artus be dismissed from this action; and it is further

Because we find that DOCS' policy did not violate clearly established law, qualified immunity would apply to RECOM M ENDED, that should the District Court all those who participated in its creation and enforcement. adopt our recommendation that DOCS and Commissioner As such, should the District Court adopt our Brian Fischer be substituted as Defendants sua sponte by recommendation that Commissioner Fischer be substituted the Court, that the Clerk of the Court shall add the "New as a Defendant, Plaintiff's only potential relief against York State Department of Correctional Services" and Fischer in his individual capacity could be non-monetary. "Commissioner Brian Fischer" as Defendants to the See Rodriguez v. Phillips, 66 F.3d at 481. Likewise, the Docket of this action; and it is further Eleventh Amendment's protection of the States' sovereign immunity would preclude any monetary damages Plaintiff would seek against Fischer in his official capacity. See Farid v. Smith, 850 F.2d at 921. *18 RECOM M ENDED, that should the District

Court adopt our recommendation that DOCS and

Commissioner Brian Fischer be substituted as Defendants, that the Clerk shall issue Summonses and forward them, As such, should the District Court adopt our along with copies of the Complaint, to the United States recommendations, DOCS and Commissioner Fischer will Marshal for service upon the substituted Defendants; and it is further END OF DOCUMENT RECOM M ENDED, that should DOCS and Fischer be substituted as Defendants, that those substituted Defendants shall file a response to Plaintiff's Complaint as provided for in the Federal Rules of Civil Procedure after they have been served with process; and it is further

ORDERED, that should DOCS and Fischer be substituted as Defendants, that upon the filing of their response to the Complaint, the Clerk shall notify Chambers so that a status conference may be scheduled; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs ., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).

N.D.N.Y.,2010.

Pilgrim v. Artus

Slip Copy, 2010 WL 3724883 (N.D.N.Y.)

DOCS Commissioner Brian Fischer be substituted sua sponte as proper defendants. FN2 (R & R at 18-27, Dkt. No. 50.) Pending are Artus and Pilgrim's objections to the R & Only the Westlaw citation is currently available. R. (Dkt.Nos.55, 56.) For the reasons that follow, the R & This decision was reviewed by West editorial staff R is adopted in its entirety. and not assigned editorial enhancements.

FN2. The Clerk is directed to append the R & R United States District Court, to this decision, and familiarity therewith is presumed.

N.D. New York.

Prince PILGRIM, Plaintiff, Before entering final judgment, this court routinely v. reviews all report and recommendation orders in cases it Dale ARTUS, Superintendent, Clinton Correctional has referred to a magistrate judge. If a party has objected Facility, Defendant. to specific elements of the magistrate judge's findings and No. 9:07-cv-1001 (GLS/GHL). recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. Sept. 17, 2010. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 Prince Pilgrim, Attica, NY, pro se. (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection Hon. Andrew M. Cuomo, New York State Attorney has been filed, this court reviews the findings and General, Aaron M. Baldwin, David L. Cochran, Assistant recommendations of a magistrate judge for clear error. See Attorneys General, of Counsel, Albany, NY, for the id.

Defendants.

Here, both parties have filed specific objections to MEMORANDUM-DECISION AND ORDER certain of Judge Treece's findings and conclusions. Having reviewed those findings and conclusions de novo and the GARY L. SHARPE, District Judge. remainder of the R & R for clear error, the court finds no FN1 its entirety. As to the substitution of parties specifically, Institutionalized Persons Act (RLUIPA), alleging that the court recognizes the difficulties that the addition of while he was an inmate at Clinton Correctional Facility, new defendants at this late stage may cause. However, defendant Dale Artus, Superintendent of Clinton having carefully reviewed Judge Treece's findings, and in Correctional Facility, violated his constitutional and line with the reasoning and authority set forth in the R & statutory rights, including the right to freely exercise his R, the court does not agree with defendant that permitting religious beliefs. (See Compl., Dkt. No. 1.) the substitution would be an abuse of discretion. See FED. FN1. 42 U.S.C. § 2000cc-1, et seq. R. CIV. P. 21 ("On motion or on its own, the court may at any time, on just terms, add or drop a party.").

*1 Pro se plaintiff Prince Pilgrim brings this action error, concurs with Judge Treece, and adopts the R & R in under 42 U.S.C. § 1983 and the Religious Land Use and

On April 30, 2009, Artus moved for summary judgment. (Dkt. No. 36.) In a ReportRecommendation and WHEREFORE, for the foregoing reasons, it is Order (R & R) filed March 17, 2010, Magistrate Judge hereby Randolph F. Treece recommended that all Pilgrim's claims except his religious expression claims be dismissed, that ORDERED that Magistrate Judge Randolph F. Artus be dismissed from the action, and that the New York Treece's Report-Recommendation and Order (Dkt. No. State Department of Correctional Services (DOCS) and

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Slip Copy, 2010 WL 3724881 (N.D.N.Y.)

(Cite as: 2010 WL 3724881 (N.D.N.Y.))

50) is ADOPTED in its entirety; and it is further

ORDERED that Dale Artus is DISM ISSED from this action; and it is further

ORDERED that the New York State Department of Correctional Services (DOCS) and DOCS Commissioner Brian Fischer be substituted as defendants; and it is further

*2 ORDERED that the Clerk comply with Judge Treece's directives as to updating the docket, issuing and forwarding summonses with copies of the complaint, and scheduling a status conference between the new defendants and Judge Treece; and it is further

ORDERED that, pursuant to the R & R, DOCS and Brian Fischer are to file a response to Pilgrim's complaint as provided in the Federal Rules of Civil Procedure after they have been served with process; and it is further

ORDERED that the Clerk provide copies of this Memorandum-Decision and Order to the parties.

IT IS SO ORDERED.

N.D.N.Y.,2010.

Pilgrim v. Artus Slip Copy, 2010 WL 3724881 (N.D.N.Y.) END OF DOCUMENT

ORDERED, that Defendants' Motion for summary judgment (Dkt. No. 39) is GRANTED IN PART, and that the complaint is DISM ISSED in its ENTIRETY as Only the Westlaw citation is currently available. against Defendants Head and Rourke; and it is further

United States District Court,

ORDERED, that Plaintiff's First Cause of Action is N.D. New York. DISM ISSED as against Defendants Hess, Devito, Bray, Mortimer EXCELL, Plaintiff, and Sourwine; and it is further v. J.W. BURGE, et al., Defendants. ORDERED, that the Defendants' Motion for No. 9:05-CV-1231 (LEK/GJD). summary judgment (Dkt. No. 39) is DENIED in all other respects; and it is further Mortimer Excell, pro se. ORDERED, that the Clerk serve a copy of this Order on all parties. Krista A. Rock, Asst. Attorney General, for Defendants.

IT IS SO ORDERED.

REPORT-RECOM M ENDATION

*1 This matter comes before the Court following a GUSTAVE J. DiBIANCO, United States Magistrate Report-Recommendation filed on September 10, 2008, by Judge. the Honorable Gustave J. DiBianco, United States This matter has been referred to me for Report and Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. Recommendation by the Honorable Lawrence E. Kahn, 72.3(c) of the Northern District of New York. Report-Rec. United States District Judge, pursuant to 28 U.S.C. § (Dkt. No. 52). 636(b) and LOCAL RULES N.D.N.Y. 73.3(c).

Within ten days, excluding weekends and holidays, In this amended civil rights complaint, plaintiff after a party has been served with a copy of a Magistrate alleges that defendants have violated his First Amendment Judge's Report-Recommendation, the party "may serve right to practice his religion and have retaliated against and file specific, written objections to the proposed him for exercising his constitutional right to practice his findings and recommendations," FED. R. CIV. P. 72(b), religion. Amended Complaint (AC) (Dkt. No. 7). Plaintiff in compliance with L.R. 72.1. No objections have been seeks monetary, declaratory, and injunctive relief. raised in the allotted time with respect to Judge DiBianco's Presently before the court is defendants' motion for Report-Recommendation. Furthermore, after examining summary judgment pursuant to FED. R. CIV. P. 56. (Dkt. the record, the Court has determined that the No. 39). Plaintiff has responded in opposition to Report-Recommendation is not subject to attack for plain defendants' motion. (Dkt. No. 50). For the following error or manifest injustice. reasons, this court recommends that defendants' motion be granted in part and denied in part.

Accordingly, it is hereby

Sept. 25, 2008.

DECISION AND ORDER

LAWRENCE E. KAHN, District Judge.

ORDERED, that the Report-Recommendation (Dkt.

No. 52) is APPROVED and ADOPTED in its 1. Summary Judgment ENTIRETY; and it is further Summary judgment may be granted when the moving

DISCUSSION

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

party carries its burden of showing the absence of a As a result of this incident, plaintiff states that he was genuine issue of material fact. FED. R. CIV. P. 56; placed in keeplock FN2 and given a misbehavior report, Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990) charging him with refusing a direct order; possession of (citations omitted). "Ambiguities or inferences to be contraband; harassment; and threats. AC ¶ 9. Plaintiff drawn from the facts must be viewed in the light most states that the charges related to his possession of the favorable to the party opposing the summary judgment Tsalot-Kob. Id. Plaintiff states that the defendants motion." Id. However, when the moving party has met its believed that the Tsalot-Kob was contraband due to its burden, the nonmoving party must do more than "simply particular color, and that defendants stated in the show that there is some metaphysical doubt as to the misbehavior report that plaintiff had previously been told material facts." Matsushita Electric Industrial Co., Ltd. v. to send the TsalotKob home or destroy it, but he had not Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see done so. Id. also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). FN2. Keeplock is a form of disciplinary

*2 At that point, the nonmoving party must move confinement where the inmate is confined to his forward with specific facts showing that there is a genuine own cell. Gittens v. LeFevre, 891 F.2d 38, 39 (2d issue for trial. Id. See also Burt Rigid Box v. Travelers Cir.1989).

Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir.2002) (citations omitted). However, only disputes over facts that might Plaintiff states that he was afforded a disciplinary affect the outcome of the suit under governing law will hearing on June 20, 2005. AC ¶ 10. Plaintiff claims that properly preclude summary judgment. Salahuddin v. although he produced a Department of Correctional Coughlin, 674 F.Supp. 1048, 1052 (S.D.N.Y.1987) Services (DOCS) Directive which allowed inmates to wear (citation omitted). the multicolored headgear, he was still found guilty of all the charges except harassment and sentenced to thirty (30) 2. Facts days keeplock, with thirty (30) days loss of privileges. AC

¶ 10. Plaintiff states that this determination was affirmed

Plaintiff alleges that, due to plaintiff's religious beliefs by defendant Burge, and although plaintiff sent a written and practices, he was the subject of various forms of complaint to Glenn Goord,FN3 he "ignored" that complaint. harassment by the defendants. Plaintiff alleges that on AC ¶ 11.

June 12, 2005, he was "acosted [sic]" by defendants Simmons and Labetz, who used a "pat-frisk" procedure as FN3. Glenn Goord, the former Commissioner of an opportunity to verbally harass plaintiff about his race, DOCS has not been named as a defendant in this his Rastafarian religion, and his religious practice of case, even though plaintiff sometimes refers to wearing a "Tsalot-Kob." FN1 AC ¶¶ 1-8. Plaintiff alleges him as "defendant" Goord. See AC ¶ 19. that, in addition to verbally harassing plaintiff, defendants Simmons and Labetz threw plaintiff's Tsalot-Kob to the Plaintiff claims that the harassment continued. AC ¶ ground, stepped on it, and told plaintiff that it would be 12. Plaintiff alleges that on July 20, 2005, he was destroyed. AC ¶¶ 6-7. attending a program, when defendant Hess told plaintiff to FN1. Plaintiff states that the "Tsalot-kob" is remove his Tsalot-Kob, and when plaintiff attempted to religious headgear worn exclusively by explain that he was allowed to wear the headgear, Rastafarian inmates. AC ¶ 2. Department of defendant Hess had plaintiff removed from the building Correctional Services (DOCS) Directive 4202 and placed in keeplock. Id. Plaintiff claims that he was states that a Tsalot-Kob is a hemispheric head given another misbehavior report, charging him with being cap, worn by members of the Rastafarian faith, "out of place," stating that plaintiff should not have been and is also known as a "crown." DOCS Directive in the school building because his name was not on the 4202(M)(1)(c). Rock Decl. Ex. A. "call-out." AC ¶ 13. Plaintiff states that he was afforded a disciplinary hearing on July 23, 2005, but that all charges were dismissed. AC ¶ 14. into the room to harass plaintiff about his multicolored Tsalot-Kob. Id. Defendant Devito also asked plaintiff why *3 Plaintiff alleges that on July 26, 2005, he was in he was in the school building when he had previously been the mess hall, and defendant Simons began to harass told not to return there. Id. Plaintiff claims that defendant plaintiff by calling him racially derogatory names. AC ¶ Devito and "defendant Mcuqueeney" FN4 began verbally 15. Plaintiff states that defendant Simons told plaintiff to abusing plaintiff and threatening him with death if he filed remove his Tsalot-Kob. Id. Plaintiff states that he asked any complaints against them. Id. Plaintiff claims that defendant Simons why he continued to harass plaintiff defendant Devito went into the Rastafarian class and told about this headgear and asked to speak with the mess hall the members of the class that, if plaintiff's name was not sergeant. Id. Plaintiff complained to the mess hall sergeant removed from the "call-out," the organization would not that defendant Simons was repeatedly harassing plaintiff be able to operate. Id. about his cultural and religious beliefs as a Rastafarian.

Plaintiff states that he further explained that defendant FN4. The court notes that although plaintiff Simons had previously "illegally" confiscated the refers to this individual as a "defendant" in the headgear and destroyed it without plaintiff's permission. amended complaint, this person is not listed in Id. the caption and was never served with process.

Thus, this individual is not currently a defendant.

Plaintiff states that defendant Simons denied harassing plaintiff, and instead informed the mess hall Plaintiff states that he requested to speak with a sergeant that plaintiff had filed unfounded complaints sergeant, but that rather than comply with plaintiff's against defendant Simons as well as other staff members. request, defendant Devito placed plaintiff in keeplock. AC AC ¶ 16. Plaintiff claims that the mess hall sergeant then ¶ 21. Plaintiff states that on August 5, 2005, he was given had plaintiff removed from the mess hall, confiscated his another misbehavior report, charging him with refusing a Tsalot-Kob, and placed him in keeplock. Id. Plaintiff direct order. AC ¶ 22. Plaintiff claims that defendant claims that he was issued a third misbehavior report, dated Devito charged plaintiff with being in class with his shirt July 27, 2005, charging him with contraband possession, untucked. Id. Plaintiff claims that although the charges lying, and refusing a direct order. AC ¶ 17. were dismissed at the August 9, 2005 disciplinary hearing, the hearing officer refused to give plaintiff a written Plaintiff states that on July 31, 2005, he was afforded disposition of dismissal. AC ¶ 23. a disciplinary hearing on these charges, and the charges were dismissed after plaintiff showed the hearing officer *4 Plaintiff alleges that on August 9, 2005, he was in DOCS Directive 4202, authorizing him to have the the mess hall, when defendant Sourwine began to harass multicolored headgear. AC ¶ 18. Plaintiff claims that the plaintiff about his Tsalot-Kob. AC ¶ 24. Plaintiff claims hearing officer's disposition included an order to return that although he attempted to explain that, according to plaintiff's Tsalot-Kob to him because it was not DOCS Directive 4202, he was allowed to wear the contraband. Id. Plaintiff states that he wrote to defendant multicolored headgear, defendant Sourwine began Burge and Glenn Goord, requesting a transfer out of verbally harassing plaintiff and ordered him to move to Auburn Correctional Facility due to all the harassment to another serving line, where defendant Bray began to which he was being subjected regarding his religious verbally harass plaintiff. Id. Plaintiff states that he was headgear. AC ¶ 19. Plaintiff claims that defendant Burge ultimately ordered to leave the mess hall without his meal. and Commissioner Goord ignored the request and were AC ¶ 24. Plaintiff states that he complained about "negligent" in their performance. Id. defendants Sourwine and Bray to the mess hall sergeant.

Id. Plaintiff states that the mess hall sergeant reacted by

Plaintiff claims that the next incident was on August ordering defendant Bray to "remove" plaintiff from the 4, 2005. AC ¶ 20. Plaintiff alleges that he was attending a mess hall and place him in keeplock. Id.

Rastafarian religious class, when defendant Devito came Plaintiff states that on August 14, 2005 he was given a misbehavior report, charging him with violating a direct *5 The amended complaint contains four "Causes of order, lying, movement, and violating mess hall serving Action." The First Cause of Action is against defendants and seating policies. AC ¶ 25. Plaintiff states that on Simons, Hess, Devito, Labetz, Bray, and Sourwine for August 14, 2005, he was afforded a disciplinary hearing. violating plaintiff's First Amendment right to practice his AC ¶ 26. Plaintiff claims that defendant Head, the hearing religion. AC at p. 13. Plaintiff claims that these defendants officer, denied plaintiff his right to due process at the improperly confiscated his Tsalot-Kob in violation of disciplinary hearing when he denied plaintiff the DOCS own regulations. Id. opportunity to submit evidence in his behalf. Id. Plaintiff states that defendant Head told plaintiff to "stop bitchin Plaintiff's Second Cause of Action is against [sic]" and had plaintiff removed from the hearing. Id. defendants Simons, Hess, Devito, Labetz, Bray, and Plaintiff claims that defendant Head's actions were in Sourwine for violating plaintiff's First Amendment rights retaliation for plaintiff's grievances and complaints. by their repeated "religious discriminatory harassment." Plaintiff claims that he was found guilty and sentenced to Id. three (3) days keeplock with thirty (30) days loss of privileges. Id. Plaintiff's Third Cause of Action is against defendants

Simons, Devito, Labetz, Bray, Sourwine, and Head for

Plaintiff claims that he has been the "continuous knowingly filing false misbehavior reports against plaintiff victim of racial and religious discrimination" based upon in order to deliberately interfere with the practice of his his exercise of the Rastafarian religion and his right to religion. Id. wear his multicolored religious headgear. AC ¶ 27.

Plaintiff states that he had "repeatedly" complained to Plaintiff's Fourth Cause of Action is against defendants Burge and Rourke as well as to Goord, and defendants Burge and Rourke for knowingly disregarding "Gummerson" FN5 to no avail. AC ¶ 28. Plaintiff states that plaintiff's complaints of religious discrimination and his life has been threatened by "the defendants herein" and permitting "various defendants" from interfering with the "other staff" that plaintiff did not name as defendants. Id. exercise of plaintiff's religious rights. Id . at p. 14. Plaintiff also claims that he has "repeatedly" been the victim of false misbehavior reports that will ultimately 3. Personal Involvement affect the possibility of parole. Id.

Personal involvement is a prerequisite to the FN5. This individual is also not named as a assessment of damages in a section 1983 case, and defendant in this case, even though plaintiff respondeat superior is an inappropriate theory of liability. refers to him in a list with other "defendant's Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citation [sic]." AC ¶ 28. omitted); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003). In Williams v. Smith, 781 F.2d 319, 323-24 (2d Plaintiff states that the inmate grievance procedure Cir.1986), the Second Circuit detailed the various ways in has "repeatedly" failed to address his problems of which a defendant can be personally involved in a religious discrimination. AC ¶ 29. The last paragraph of constitutional deprivation, and thus be subject to the factual portion of plaintiff's complaint purports to individual liability. make some statements against an individual named G. A supervisory official is personally involved if that Steinberg, regarding "six related false misbehavior official directly participated in the infraction. Id. The report[s]," dated August 22, 2005. AC ¶ 30. Plaintiff has defendant may have been personally involved if, after not named this individual as a defendant and states that his learning of a violation through a report or appeal, he or appeal of these misbehavior reports is still pending. Id. she failed to remedy the wrong. Id. Personal involvement Plaintiff states that he is simply notifying the court of these may also exist if the official created a policy or custom separate incidents. Id. under which unconstitutional practices occurred or allowed such a policy or custom to continue. Id. Finally, confiscating plaintiff's Tsalot-Kob and harassing him a supervisory official may be personally involved if he or about being Rastafarian in violation of DOCS own she were grossly negligent in managing subordinates who directives. AC at p. 13 (First and Second Causes of caused the unlawful condition or event. Id. See Iqbal v. Action).

Hasty, 490 F.3d 143, 152-53 (2d Cir.2007) (citing Colon Plaintiff also claims that defendants Simons, Hess, v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)). Devito, Labetz, Bray, Sourwine, and Head "repeatedly caused the filing of false misbehavior reports" in a In this case, defendants argue that plaintiff has not deliberate attempt to interfere with plaintiff's religion. This shown sufficient personal involvement by defendant claim can be interpreted as a claim that defendants Rourke in any alleged violations. A review of the amended retaliated against plaintiff for the exercise of his First complaint shows that plaintiff has not alleged that Amendment rights. Id. (Third Cause of Action). Plaintiff's defendant Rourke directly participated in any of the final cause of action merely alleges that the supervisory alleged violations. Plaintiff claims only that he "repeatedly officers disregarded plaintiff's complaints. AC at p. 14. complained" to a variety of supervisory officers, including (Fourth Cause of Action). The court will consider the First defendant Rourke, "but to no avail." AC ¶ 28. It is not Amendment and the retaliation claims separately. clear from the amended complaint what sort of information, if any, defendant Rourke may have received A. Religion about plaintiff's problem regarding his Tsalot-kob and his concerns about the other defendants. It is well-settled that inmates have the right under the First and Fourteenth Amendments to freely exercise a *6 Plaintiff has not alleged that defendant Rourke chosen religion. Ford v. McGinnis, 352 F.3d 582, 588 (2d learned about plaintiff's situation through a report or Cir.2003) (citing Pell v. Procunier, 417 U.S. 817, 822 appeal, and plaintiff has not alleged that defendant Rourke (1974)). However this right is not limitless, and may be "created" any policy under which the constitutional subject to restrictions relating to legitimate penological violation was allowed to occur. In fact, it appears from all concerns. Benjamin v. Coughlin, 905 F.2d 571, 574 (2d of the documents submitted by both plaintiff and Cir.), cert. denied, 498 U.S. 951 (1990). The analysis of defendants that there was a misunderstanding regarding a free exercise claim is governed by the framework set the authority of the plaintiff to wear a Tsalot-kob of any forth in O'lone v. Estate of Shabazz, 482 U.S.342 (1987) color. The court notes that even if plaintiff had written his and Turner v. Safely, 482 U.S. 78, 84 (1987). This complaint to defendant Rourke, and he had ignored those framework is one of reasonableness and is less restrictive complaints, it still would be insufficient to allege personal than ordinarily applied to the alleged infringements of involvement by this defendant. See Headly v. Fisher, 2008 fundamental constitutional rights. Ford, 352 F.3d at 588. U.S. Dist. LEXIS 37190, * 17-18 (S.D .N.Y. May 8, In O'Lone, the Supreme Court held that a regulation 2008) (citing Hernandez v. Goord, 312 F.Supp.2d 537, that burdens a protected right withstands a constitutional 547 (S.D.N.Y.2004)). Plaintiff has not responded to this challenge if that regulation is reasonably related to argument in his opposition to summary judgment. Thus, legitimate penological interests. 482 U.S. at 349 (quoting without more, the amended complaint may be dismissed as Turner, 482 U.S. at 89). An individualized decision to against defendant Rourke. deny an inmate the ability to engage in a religious exercise is analyzed under the same standard. Salahuddin v. 4. First Amendment and Retaliation Goord, 467 F.3d 263, 274 n.4 (2d Cir.2006) (citations omitted). In Farid v. Smith, 850 F.2d 917, 926 (2d In this case, the amended complaint may be read to Cir.1988), the Second Circuit held that to assess a free allege two separate claims regarding plaintiff's religious exercise claim, the court must determine "(1) whether the rights. Plaintiff first alleges that defendants Simons, Hess, practice asserted is religious in the person's scheme of Devito, Labetz, Bray, and Sourwine violated his First beliefs and whether the belief is sincerely held; (2) Amendment right to practice his religion by repeatedly whether the challenged practice of prison officials infringes upon the religious belief; and (3) whether the challenged practice of the prison officials furthers some in accordance with their religious beliefs and as legitimate penological interest." permissible in a correctional setting. Some examples of approved religious headcoverings are: *7 Defendants argue that plaintiff does not have a "constitutional right" to wear a Tsalot-kob, and the mere ... violation of a state rule or regulation does not rise to the level of a constitutional claim. Defendants cite two cases c. Tsalot-Kobis approved religious headwear for for the statement that there is no constitutional right to members of the Rastafarian religious faith. A wear the plaintiff's religious headgear. Def. Mem. of Law Tsalot-Kob is a hemispheric head cap that can be made at 15. Defendants argue that in Benjamin v. Coughlin, 905 of cloth, knitted or crocheted, and may be multicolored F.2d 571, 576-77 (2d Cir.), cert denied, 498 U.S. 951 or singled colored. Only the smallest size is permitted. (1990), the Second Circuit held that there is no First It measures approximately 12" long at its longest point Amendment right to wear crowns while an inmate is in in order to cover all locks. It must fit as close to the state custody.FN6 head as the locks permit. Note: This religious headwear is only authorized for members of the Rastafarian FN6. A "crown" is another name for the faith.....

Tsalot-Kob.

Rock Decl. Ex. A (emphasis added). It is clear that

The court does not agree with the defendants' analysis Directive 4202 was amended on June 7, 2004. Plaintiff's of Benjamin. The court in Benjamin found no First Resp. Ex. C (Revision Notice dtd. June 7, 2004). Prior to Amendment or equal protection violation in a challenge to the amendment, the color of the Tsalot-Kob was restricted the DOCS regulation restricting the wearing of crowns to to black. Id. Even before the amendment the only issue designated areas. 905 F.2d at 578-79. The reason for this was the color of the headgear, not whether it could be holding was because defendants in Benjamin successfully worn at all. Id. argued, based on Turner and Shabazz, that there was a legitimate security interest FN7 in limiting this form of Thus, it is clear that DOCS has determined that headgear, and distinguishing the crown from yarmulkes FN8 whatever security interest was present in Rastafarian and kufis FN9 worn by inmates of other religions. 905 F.2d inmates wearing their religious headgear has either been at 578-79. reconsidered or has been satisfied by the restriction on the size of the crown. Additionally, since the directive was FN7. Yarmulkes and Kufis were smaller than amended to allow crowns of all colors, DOCS has made crowns, and DOCS had determined that the the determination that whatever security concern was larger headgear was more capable of being used present relating to the color of the crown has been to hide contraband. 905 F.2d at 579. The court satisfied. found this to be a legitimate security concern. Id.

Without the issue of a security interest, Benjamin is

FN8. Yarmulkes are worn by Jewish inmates. distinguishable from the case that is currently before the court. In Benjamin, the court found that the security FN9. Kufis are worn in the Muslim religion. interest outweighed what may have been a sincerely held religious belief. In this case, there is no dispute that Plaintiff is not challenging the directive in this case. plaintiff is Rastafarian, and there is no dispute that a In fact, the directive clearly supports plaintiff's ability to TsalotKob is a head covering worn by Rastafarian where whatever color Tsalot-kob he chooses to wear. inmates. There is no issue or argument that confiscating or DOCS Directive 4202(M)(1)(c) provides that destroying this headgear would not infringe upon plaintiff's sincerely held religious belief. The difference in Inmates are permitted to wear religious headcoverings this case is that defendants are no longer claiming that a security interest outweighs or limits the plaintiff's right to already sent home." Id. perform the particular religious practice. Thus, Benjamin does not apply to show that there is no First Amendment It is unclear how long plaintiff was without his right to wear a Tsalot-Kob. particular Tsalot-Kob, or whether he had another to wear.

Plaintiff alleges that he was wearing a Tsalot-Kob on *8 In this case, plaintiff had two incidents with August 9, 2005, when plaintiff claims that defendant defendant Simons regarding the Tsalot-Kob. On June 17, Sourwine told plaintiff to remove the Tsalot-Kob in the 2008, plaintiff was issued a misbehavior report by mess hall. This court cannot, however, recommend defendant Simons, charging plaintiff with various rule granting summary judgment for defendants based upon the violations, including possession of the allegedly incorrect argument that plaintiff simply does not have a contraband Tsalot-Kob. Pl. Mem. in Opp. Ex. A at 11. In First Amendment right to wear a Tsalot-Kob. The extent the misbehavior report, defendant Simons states that he of any violation and any injury suffered as a result of that had told plaintiff on June 16, 2008 that he was not allowed violation are genuine issues of material fact as against to wear the "hat," and that he would have to "send it defendant Simons, who was involved in the removal and home, donate it, [or] destroy it." Id. Plaintiff was afforded confiscation of the headgear on June 17, 2005 and July 26, a disciplinary hearing and was found guilty of all the 2005, and defendant Labetz, who was involved in the June charges but harassment by Lieutenant Redmond.FN10 17, 2005 incident.

Plaintiff was sentenced to thirty days of keeplock, together with a thirty day loss of privileges. Id. at 12. Although The court notes that plaintiff's first cause of action plaintiff alleges that the Tsalot-Kob was confiscated on states that defendants Hess, Devito, Bray, and Sourwine June 17, 2005, it does not appear so from the misbehavior violated plaintiff's First Amendment rights by "repeated" report. confiscation of plaintiff's head wear. AC at p. 13. There is no indication even in the documents submitted by plaintiff FN10. Lieutenant Redmond is not a defendant in himself that any of these other defendants "confiscated" this case. plaintiff's Tsalot-Kob. At worst, plaintiff alleges that they verbally berated him about the color of his headgear. However, on July 26, 2005, defendant Simons once However, it is well settled that verbal harassment, again gave plaintiff a misbehavior report for wearing the inexcusable as it may be, does not rise to the level of a multicolored headgear. Id. at 6. The misbehavior report constitutional violation. Purcell v. Coughlin, 790 F.2d specifically states that the Tsalot-Kob was confiscated at 263, 265 (2d Cir.1986); Ramirez v. Holmes, 921 F.Supp. that time and plaintiff was escorted to the package room, 204, 210 (S.D.N.Y.1996). Thus, other defendants' where he was told that it would be mailed home. Id. The questioning plaintiff about his headgear and even verbally misbehavior report also states that "[p]er directive harassing him about his religion or his headgear does not Tsalot-Kob must be black in color." Id. rise to the level of a constitutional violation.

Plaintiff was afforded a disciplinary hearing on July *9 Plaintiff claims that on July 20, 2005, defendant 31, 2005. Id. at 7. Defendant Head was the hearing officer, Hess told plaintiff to remove his Tsalot-Kob, however, and found plaintiff not guilty of all of the charges. The plaintiff does not allege that defendant Hess confiscated disposition specifically states that plaintiff was not in the headgear. Plaintiff stated that defendant Hess had violation of Directive 4202, and that the "officer was not plaintiff placed in keeplock, however, the misbehavior aware" of the amendment, but instead had based his report issued to plaintiff on that date states only that he decision on the May 12, 2004 directive that did require all was "out of place" and not on the call-out for the class. Pl. Tsalot-Kobs to be black. Id. at 8. Defendant Head further Mem. in Opp. Ex. A at 9. The charge must have been stated that in the future "it is hoped no such occurrences dismissed since no disposition of this misbehavior report [of] this error will happen again." Id. Defendant Head also appears on plaintiff's disciplinary history. The same is true stated that the Tsalot-Kob "will be returned to you if not for the misbehavior report issued by defendant Devito, who gave plaintiff a misbehavior report on August 4, 2005 non-conclusory allegations. Id. (citing Dawes v. Walker, for having his shirt untucked. Id. at 10. Plaintiff only 239 F.3d 489, 491 (2d Cir.2001), overruled on other claims that defendant Devito and another corrections grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506 officer commented on the Tsalot-Kob and threatened to (2002)). kill plaintiff if he filed any complaint against them. AC ¶ 21. *10 Although plaintiff in this case does not specifically use the word "retaliation," in his third cause of Finally, defendants Sourwine and Bray are alleged to action, plaintiff claims that defendants Simons, Hess, have verbally harassed plaintiff about the Tsalot-Kob, but Devito, Labetz, Bray, Sourwine, and Head "repeatedly" plaintiff was placed in keeplock because he did not obey caused the filing of false misbehavior reports to an order regarding the line in which he was supposed to be "deliberately interfer [sic] with the practice of plaintiff's standing. AC ¶ 24; Head Decl. Ex. A (misbehavior report religious beliefs ..." AC at p. 13. In his response to dated August 9, 2006). There is no reference in the defendants' motion for summary judgment, plaintiff does misbehavior report to plaintiff's religion or his headgear. state that he was the "target of harassment and retaliation."

Pl. Mem. in Opp. at 3.

Thus, to the extent that defendants Hess, Devito, Bray, and Sourwine verbally harassed plaintiff about his To the extent that plaintiff's complaint can be religion or his headgear, they did not deprive plaintiff of interpreted to allege retaliation, the court must recommend his First Amendment right to practice his religion, and dismissal as to defendant Head. Defendant Head was plaintiff's First Cause of Action may be dismissed as assigned as the hearing officer after the August 9, 2005 against these defendants. The court will proceed to mess hall incident. The misbehavior report had nothing to consider whether plaintiff may maintain a claim for do with plaintiff's religion or headgear, and there is retaliation against any of the defendants. absolutely no indication that defendant Head would have had knowledge of any verbal exchange that plaintiff B. Retaliation allegedly had in the mess hall with defendants Sourwine and Bray regarding his Tsalot-Kob. The misbehavior Any action taken by defendants in retaliation for the report involved seating policies in the mess hall. Head exercise of a constitutional right, even if not Decl. Ex. A. A review of the transcript of the disciplinary unconstitutional in itself, states a viable constitutional hearing shows that defendant Head attempted to have claim. Franco v. Kelly, 854 F.2d 584, 588-90 (2d plaintiff testify regarding the specific facts of the incident, Cir.1988). The law is well-settled that an inmate has no however, plaintiff wanted only to discuss his complaints of right to be free from false accusations or false misbehavior retaliation against the officers. Head Decl. Ex. B at 6-9. reports, unless they are made in retaliation for the exercise Defendant Head ultimately removed plaintiff from the of a constitutional right. Boddie v. Schnieder, 105 F.3d hearing. Id. at 8. Any allegation that defendant Head was 857, 862 (2d Cir.1997) (citing Franco, 854 F.2d at retaliating against plaintiff for his religion is completely 588-90). conclusory and may be dismissed.

In order to establish a claim of retaliation for the exercise of a constitutional right, plaintiff must show first, This finding is supported by the fact that defendant that he engaged in constitutionally protected conduct, and Head presided over the July 31, 2005 disciplinary hearing second, that the conduct was a substantial motivating and found plaintiff not guilty of the contraband violation factor for adverse action taken against him by defendants. charged in defendant Simons's July 26, 2005 misbehavior Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003) (citing report. Plaintiff himself has submitted a copy of the Gayle v. Gonyea, 313 F.3d 677 (2d Cir.2002); Hendricks misbehavior report and has included defendant Head's v. Coughlin, 114 F.3d 390 (2d Cir.1997)). The court must disposition. Pl. Mem. in Opp. Ex. A at 8. In that keep in mind that claims of retaliation are "easily disposition defendant Head finds fault with defendant fabricated" and thus, plaintiffs must set forth Simons's handling of the entire situation. Id. Defendant Head stated in his written decision that it was "hoped that Third Circuit held that in certain circumstances, no such occurrence [of] this error will happen again." Id. "placement in administrative segregation would not deter There is absolutely no indication that defendant Head in a prisoner of ordinary firmness from exercising his or her any way was retaliating or "causing" false misbehavior First Amendment rights," however, the court was not reports to be filed against plaintiff. prepared to hold that such action could never amount to adverse action. 229 F.3d at 225.

The defendants did not address the issue of alleged retaliation in their motion for summary judgment. In fact, In this case, it is unclear how long plaintiff spent in defendants do not include the misbehavior reports from keeplock as a result of the misbehavior reports that were the other dismissed charges. Plaintiff has, however, ultimately dismissed. He spent thirty days in keeplock included these reports. One report stated that on July 20, after being mistakenly found guilty of possession of 2005, plaintiff was "out of place" because he was not on contraband as a result of defendant Simons's first the "call-out" for a particular class. Pl. Mem. in Opp. Ex. misbehavior report. It is also true that the two misbehavior A at 9. The report indicates that plaintiff was placed in reports for which there is no disposition purportedly did keeplock as a result, but this incident is not listed on not have anything to do with plaintiff's religion, however, plaintiff's disciplinary history. See Head Decl. Ex. H. On if these misbehavior reports were given to plaintiff August 4, 2005, plaintiff was given a misbehavior report because he was Rastafarian or because of his religious by defendant Devito, charging plaintiff with having his practice of wearing a crown, plaintiff could state a claim shirt untucked. Pl. Mem. in Opp. Ex. A at 10. Once again, for retaliation. there is no record of this misbehavior report on plaintiff's disciplinary history report. Head Decl. Ex. H. The court also notes that if defendants would have taken the same action absent the protected conduct, they *11 It has been held that "[o]nly retaliatory conduct will have a defense to retaliation. Graham v. Henderson, that would deter a similarly situated individual of ordinary 89 F.3d 75, 79 (2d Cir.1996). However, it is the firmness from exercising his or her constitutional rights defendants' burden to show by a preponderance of the constitutes an adverse action for a claim of retaliation." evidence that they would have taken the same action Odom v. Dixion, 04-CV-889, 2008 U.S. Dist. LEXIS absent the protected conduct. Id. Since defendants in this 11748, *62-63 (W.D.N.Y. Feb. 15, 2008) (quoting Davis case do not make any argument regarding retaliation, the v. Goord, 320 F.3d 346, 352 (2d Cir.2003)). In this case, court will not recommend granting summary judgment on although there was no disciplinary "sentence" relating to the issue of retaliation as against defendants Simons, these two misbehavior reports, plaintiff does allege that he Devito, Hess, and Sourwine. was placed in keeplock.

In Dawes v. Walker, 239 F.3d 489, 492-93 (2d

Cir.2001), the Second Circuit recognized that there are In order to begin a due process analysis, the court situations in which de minimis retaliation is "outside the must determine whether plaintiff had a protected liberty ambit of constitutional protection." Id. (citing Davidson v. interest in remaining free from the confinement that he Chestnut, 193 F.3d 144, 150 (2d Cir.1999)). The court in challenges and then determine whether the defendants Dawes held that verbal harassment was insufficient to rise deprived plaintiff of that liberty interest without due to the level of adverse action. Id. In Dawes, the court process. Giano v. Selsky, 238 F.3d 223, 225 (2d stated that prisoners may be required to tolerate more than Cir.2001); Bedoya v. Coughlin, 91 F.3d 349, 351 (2d either public employees or average citizens before a Cir.1996). In Sandin v. Conner, the Supreme Court held retaliatory action can be considered "adverse." Dawes, that although states may still create liberty interests 239 F.3d at 493 (citing Thaddeus-X v. Blatter, 175 F.3d protected by due process, "these interests will be generally 378, 398 (2d Cir.1999)). The court in Dawes cited Allah limited to freedom from restraint which, while not v. Seiverling. Id. (citing 229 F.3d at 225). In Allah, the exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its

5. Due Process

own force ..., nonetheless imposes atypical and significant thirty days in keeplock as a result of the August 9, 2005 hardship on the inmate in relation to the ordinary incidents mess hall incident. As stated above, keeplock involves an of prison life." Sandin v. Conner, 515 U.S. 472, 483-84 inmate being confined to his own cell, and there is no (1995). In Sandin, the court rejected a claim that thirty deprivation of property associated with this form of days in segregated confinement was "atypical and confinement. Sandin was clear in its holding that a thirty significant ." Id. at 486. day confinement, even in a special housing unit, would not *12 The Second Circuit has discussed the duration rise to the level of a liberty interest. 515 U.S. at 486. The element of the Sandin analysis. Colon v. Howard, 215 Second Circuit's decision in Colon is consistent with this F.3d 227 (2d Cir.2000). In Colon, the court discussed holding. Thus, plaintiff in this case had no liberty interest whether it was appropriate to have a "bright line" rule in being free from thirty days keeplock, and to the extent regarding the maximum length of confinement in the that plaintiff may be trying to allege a due process claim Special Housing Unit (SHU) before a liberty interest as against defendant Head, any such claim may be might be created. Id. The court concluded that 305 days in dismissed.

SHU would meet the standard. Id. at 231. Although Judge Newman believed that the court should articulate a bright WHEREFORE, based on the findings above, it is line rule, holding that any SHU confinement less than 180 days would not create a liberty interest, the panel RECOM M ENDED, that defendants' motion for disagreed. Id . at 234. summary judgment (Dkt. No. 39) be GRANTED IN

PART, and that the complaint be DISM ISSED IN ITS

It is true that the court must consider conditions as ENTIRETY AS AGAINST DEFENDANTS HEAD and well as duration, however, sentences of 125 to 288 days ROURKE, and it is are "relatively long" and necessitate " 'specific articulation of ... factual findings" before the court could determine RECOM M ENDED, that plaintiff's First Cause of whether the "hardship" was atypical and significant. Sims Action be DISM ISSED AS AGAINST DEFENDANTS v. Artuz, 230 F.3d 14, 23 (2d Cir.2000) (citation omitted). HESS, DEVITO, BRAY and SOURWINE, and it is The court in Colon also noted that the longest confinement in SHU that did not meet the atypical requirement was 101 *13 RECOM M ENDED, that defendants' motion for days. Id. at 231 (citing Sealey v.. Giltner, 197 F.3d 578, summary judgment (Dkt. No. 39) be DENIED IN ALL 589-90(2d Cir.1999)). OTHER RESPECTS.

Plaintiff does not include a due process claim against Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule defendant Head in his "Causes of Action." Defendant 72.1(c), the parties have ten days within which to file Head is only included in the third cause of action, alleging written objections to the foregoing report. Such objections that he was involved in "repeatedly" causing false shall be filed with the Clerk of the Court. FAILURE TO misbehavior reports to be written.FN11 However, in the OBJECT TO THIS REPORT WITHIN TEN DAYS body of the complaint, plaintiff does appear to claim that WILL PRECLUDE APPELLATE REVIEW. Roldan defendant Head violated plaintiff's due process rights by v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. excluding him from the disciplinary hearing of August 14, Secretary of Health and Human Services, 892 F.2d 15 (2d 2005 and by refusing to call certain witnesses. AC ¶ 26. Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.

FN11. This is the retaliation claim discussed above. N.D.N.Y.,2008.

In any event, defendants argue that plaintiff cannot Excell v. Burge establish a due process violation against defendant Head. Not Reported in F.Supp.2d, 2008 WL 4426647 This court agrees with defendants. Plaintiff received only (N.D.N.Y.)

END OF DOCUMENT

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Slip Copy, 2009 WL 385413 (N.D.N.Y.)

(Cite as: 2009 WL 385413 (N.D.N.Y.))

*1 In a Report and Recommendation dated September 9, 2008, Magistrate Judge Peebles recommended that this Court grant Defendants' motion for summary judgment on Only the Westlaw citation is currently available. all claims and that the Court deny Defendant Rivera's

United States District Court, motion to dismiss as moot. See Dkt. No. 249. Plaintiff filed objections to those recommendations. See Dkt. No. N.D. New York. 251.

Anthony D. AMAKER, Plaintiff, Plaintiff makes two objections that have nothing to do v. with the merits of his claims,. He objects to the fact that T. KELLEY, J. Landry, P.T. Justine, O. Mayo, T.G. Magistrate Judge Peebles did not attach unpublished cases Egan, D.A. Senkowski, M. Allard, R. Girdich, G.S. cited in the Report and Recommendation to it and to the Goord, J. Wood, Doctor I. Ellen, J. Mitchell, H. recommendation that the Court dismiss Defendants who Worley, Doctor L.N. Wright, S. Nye, M. McKinnon, M. have not answered or otherwise opposed the complaint. Rivers, L. Coryer, A. Pavone, L. Cayea, D. Armitage, J. See id. 1-2. Plaintiff also objects, generally, to the Carey, P.W. Annetts, R. Rivers, E. Aiken, S.Gideon, R. application of preclusion and other legal doctrines to his Lincoln, D. Linsley, C.O. Gordon, J. Reyell, D. claims. Plaintiff's remaining objections, for the most part, Champagne, J. Kelsh, W. Carter, F. Bushey, Cho are not actually objections, but consist of further legal Phillip, Cho Drom, A.J. Annucci, L.J. Leclair, D. argument regarding his claims. See id. at 2-6. The Court's Laclair, T.L. Ricks, A. Boucaud, H. Perry, B. Baniler, review of Magistrate Judge Peebles' Report and R. Lamora, E. Liberty, G. Ronsom, R. Maynard, C. Recommendation, in light of Plaintiff's objections, Daggett, D. Selksky, K.M. Lapp, R. Sears, J. Babbie, demonstrates that Magistrate Judge Peebles correctly Sgt. Champagne, Doctor K. Lee, R. Vaughan, and M.

FN1 applied the appropriate law and that Plaintiff's objections Nisoff, Defendants. are without merit.FN2 FN1. Plaintiff filed an amended complaint purporting to add the New York State Senate and FN2. The Court notes that, in addition to New York State Assembly as Defendants, see Magistrate Judge Peebles' reasoning regarding Dkt. No. 78; however, in its May 13, 2002 Plaintiff's complaint about Defendants' allegedly Order, the Court, while granting Plaintiff leave to retaliatory searches of his cell, cell searches, amend, denied Plaintiff leave to add these even if retaliatory, do not offend the Constitution entities as defendants, see Dkt. No. 75. and are not actionable. See Bumpus v. Canfield, 495 F.Supp.2d 316, 327 (W.D.N.Y.2007) (citing No. 9:01-CV-877 (FJS/DEP). Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)) (other citation Feb. 9, 2009. omitted).

Anthony D. Amaker, Wallkill, NY, pro se.

Therefore, after carefully considering Magistrate Hon. Andrew M. Cuomo, Office of the Attorney General Judge Peebles' Report and Recommendation, Plaintiff's State of New York, David B. Roberts, Esq., Assistant objections thereto, as well as the applicable law, and for Attorney General, of Counsel, Albany, NY, for the reasons stated herein and in Magistrate Judge Peebles' Defendants. Report and Recommendation, the Court hereby

ORDER ORDERS that Magistrate Judge Peebles' September

9, 2008 Report and Recommendation is ADOPTED in its SCULLIN, Senior District Judge. entirety; and the Court further and custody of the New York State Department of Correctional Services (the "DOCS"). Amended Complaint

ORDERS that Defendants' motion for summary (Dkt. No. 78) ¶ 3. Plaintiff's incarceration results from a judgment is GRANTED; and the Court further 1989 conviction for murder in the second degree, for which he was sentenced to a period of imprisonment of ORDERS that Defendant Rivera's motion to dismiss between twenty-five years and life. Defendants' Local is DENIED as moot; and the Court further Rule 7.1(a)(3) Statement (Dkt. No. 229-2) ¶ 1. At the times relevant to his claims plaintiff was designated ORDERS that the Clerk of the Court shall enter initially to the Clinton Correctional Facility ("Clinton"), judgment for Defendants and close this case. where he was housed beginning in June of 1998, and later the Upstate Correctional Facility ("Upstate"), into which IT IS SO ORDERED. he was transferred on or about October 31, 2001.FN1

Amended Complaint (Dkt. No. 78) ¶¶ 3, 5, 21.

REPORT AND RECOMMENDATION FN1. Upstate is a maximum security prison comprised exclusively of special housing unit DAVID E. PEEBLES, United States Magistrate Judge. ("SHU") cells in which inmates are confined,

Plaintiff Anthony D. Amaker, a New York State generally though not always for disciplinary prison inmate who is proceeding pro se and in forma reasons, for twenty-three hours each day. See pauperis, has commenced this action pursuant to 42 Samuels v. Selsky, No. 01 CIV. 8235, 2002 WL U.S.C. § 1983, claiming deprivation of his civil rights. 31040370, at *4 n. 11 (S.D.N.Y. Sept. 12, 2002). Plaintiff's complaint, as amended, contains an amalgamation of claims based upon a series of events In his amended complaint plaintiff has interposed a alleged to have occurred at the two correctional facilities wide range of claims, many of which are unrelated and in which he was housed during the relevant period, naming some of which, as will be seen, were included in a in excess of fifty individuals as well as the New York subsequent action brought by the plaintiff in this court, State Senate and Assembly as defendants, and seeking based upon events occurring at Clinton, and later at both injunctive and monetary relief. Upstate, between June, 1998 and January of 2002. One of Currently pending before the court are two motions the more prominent claims now asserted by the plaintiff brought by the defendants. In the first, defendants seek the concerns efforts by DOCS authorities to obtain a entry of summary judgment dismissing plaintiff's claims Deoxyribonucleic Acid ("DNA") sample from him as on a variety of grounds, principally on the merits, though authorized under New York's DNA Indexing Statute, N.Y. additionally urging their entitlement to qualified immunity Executive Law Art. 49-B, as well as disciplinary action from suit. One of the named defendants, Rafael Rivera, a taken by prison officials based upon his refusal to comply corrections officer, has additionally moved requesting with that request. Plaintiff also alleges, inter alia, that dismissal of plaintiff's claims against him for failure to defendants were deliberately indifferent to his serious state a claim upon which relief may be granted, arguing medical needs, and that he was 1) exposed to inhumane that plaintiff's allegations are facially insufficient to conditions of confinement; 2) denied meaningful access to support a cognizable claim against him. For the reasons set the law library facilities and deprived of court papers; 3) forth below I recommend that defendants' summary retaliated against for exercising his right to file grievances judgment motion be granted, and in light of that and seek other forms of redress; 4) subjected to unlawful recommendation find it unnecessary to address defendant racial discrimination and cell searches; and 5) unlawfully Rivera's separate motion. required to pay for food and spices required to enjoy meals consonant with his religious beliefs.FN2

I. BACKGROUND

FN2. The specifics of plaintiff's various causes of *2 Plaintiff is a prison inmate entrusted to the care action will be discussed in more detail in the portions of this report addressing each grouping included the filing of more than one motion for interim of claims. injunctive relief and various interlocutory appeals, all of which have been dismissed. Now that discovery has been II. PROCEDURAL HISTORY completed, by motion filed on February 13, 2007 defendants have moved for summary judgment dismissing Plaintiff commenced this action on June 1, 2001, Dkt. plaintiff's claims on a variety of grounds. Dkt. No. 229. In No. 1, and on June 6, 2002 filed a second amended addition, Corrections Officer R. Rivera, a named complaint-the operative pleading currently before the defendant who has yet to answer plaintiff's complaint, has court.FN3 Dkt. No. 78. In his amended complaint, plaintiff also moved seeking dismissal of plaintiff's claims against asserts a variety of constitutional and statutory claims him pursuant to Rule 12(b)(6) of the Federal Rules of against fifty-five named defendants, including the Civil Procedure for failure to state a claim upon which Commissioner of the DOCS and many of the agency's relief may be granted as against him. Dkt. No. 237. employees.FN4 Id. Plaintiff has since responded to defendants' summary FN3. In addition to this action, plaintiff has judgment motion by the filing on May 25, 2007 of a commenced two other suits in this court. The memorandum, affidavit, and various other materials, Dkt. first, Anthony D. Amaker v. Glenn S. Goord, et No. 240, but has not opposed defendant Rivera's dismissal al., Civil Action No. 03-CV-1003 (NAM/DRH) motion.FN5 (N.D.N.Y., filed 2003) ("Amaker II" ), addresses incidents occurring at Upstate as well FN5. Among plaintiff's submissions in as subsequent to plaintiff's transfer into the opposition to the pending motions is a request Downstate Correctional Facility, and later to the that the court strike an affirmation submitted by Great Meadow Correctional Facility. A review of defendants' counsel, Jeffrey P. Mans, Esq., as the relevant pleadings from that case reflects well as declarations of Dr. Vonda Johnson and significant overlap between the claims asserted in James Bell, from the record. Dkt. No. 240-03. that action and those now before the court. The Having reviewed the Johnson and Bell other action, commenced by plaintiff on March declarations, I discern no basis to strike them 22, 2006 and encaptioned Anthony D. Amaker, et from the record. Turning to Attorney Mans' al. v. Glenn S. Goord, et al., Civil Action No. declaration, I find that it appears to be offered 06-CV-0369 (GLS/RFT) (N.D.N.Y., filed 2006) principally to describe the exhibits being ("Amaker III" ), was transferred to the Western submitted in connection with defendants' motion District of New York on July 6, 2006, pursuant and to set forth legal argument to supplement to 28 U.S.C. § 1404(a). their memorandum. While the inclusion of legal argument in such an attorney's affidavit is FN4. Also named as defendants in plaintiff's ordinarily not appropriate, Donahue v. Uno amended complaint were the New York State Restaurants, LLC, No. 3:06-CV-53, 1006 WL Senate and the New York State Assembly. See 1373094, at *1 n. 1 (N.D.N.Y. May 16, 2006) Dkt. No. 78. Those entities, which are clearly not (McAvoy, J.), and it is doubtful that defendants' parties amenable to suit, have not been formally attorney is positioned to include in an affidavit joined as defendants in the action, however, in assertions of fact beyond his personal light of the issuance of an order on May 13, 2002 knowledge, Housing Works, Inc. v. Turner, No. denying plaintiff's application for leave to amend 00 Civ. 1122, 2003 WL 22096475, at *1 to the extent that he sought permission to add (S.D.N.Y. Sept. 9, 2003), I have chosen not to them as defendants. See Dkt. No. 75. strike the affidavit, and instead to consider it solely for the limited purpose for which it is Since its inception some seven years ago, this case has being offered. developed a tortured procedural history which has *3 Defendants' motions, which are now ripe for non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 determination, have been referred to me for the issuance S.Ct. 1722, 1734 (1964); Miller v. Wolpoff & Abramson, of a report and recommendation, pursuant to 28 U.S.C. § LLP, 321 F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 636(b)(1)(B) and Northern District of New York Local 823, 124 S.Ct. 153 (2003); Burke v. Gregory, 356 Rule 72.3(c). See Fed.R.Civ.P. 72(b). F.Supp.2d 179, 182 (N.D.N.Y.2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is A. Standards of Review likely ultimately to prevail, " 'but whether the claimant is entitled to offer evidence to support the claims.' " Log On

III. DISCUSSION

1. Dismissal Motion Standard America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F.Supp.2d 435, 441 (S.D.N.Y.2001) (quoting Gant v. A motion to dismiss a complaint, brought pursuant to Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) Rule 12(b) (6) of the Federal Rules of Civil Procedure, (other quotations omitted)). Accordingly, a complaint calls upon a court to gauge the facial sufficiency of that should be dismissed on a motion brought pursuant to Rule pleading, utilizing as a backdrop a pleading standard 12(b)(6) only where the plaintiff has failed to provide which is particularly unexacting in its requirements. Rule some basis for the allegations that support the elements of 8 of the Federal Rules of Civil Procedure requires only his or her claim. See Twombly, 127 S.Ct. at 1969, 1974; that a complaint contain "a short and plain statement of the see also Patane v. Clark, 508 F.3d 106, 111-12 (2d claim showing that the pleader is entitled to relief." Cir.2007) ("In order to withstand a motion to dismiss, a Fed.R.Civ.P. 8(a)(2). Absent applicability of a heightened complaint must plead 'enough facts to state a claim for pleading requirement such as that imposed under Rule 9, relief that is plausible on its face.' ") (quoting Twombly ). a plaintiff is not required to plead specific factual "While Twombly does not require heightened fact pleading allegations to support the claim; rather, "the statement of specifics, it does require enough facts to 'nudge need only 'give the defendant fair notice of what the ... [plaintiffs'] claims across the line from conceivable to claim is and the grounds upon which it rests.' " Erickson plausible.' " In re Elevator Antitrust Litig., 502 F.3d 47, v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) 50 (3d Cir.2007) (quoting Twombly, 127 S.Ct. at 1974). (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (other quotations omitted)); *4 W hen assessing the sufficiency of a complaint cf. Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) against this backdrop, particular deference should be (acknowledging that a plaintiff may properly be required afforded to a pro se litigant whose complaint merits a to illuminate a claim with some factual allegations in those generous construction by the court when determining contexts where amplification is necessary to establish that whether it states a cognizable cause of action. Erickson, the claim is "plausible"). Once the claim has been stated 127 S.Ct. at 2200 (" '[A] pro se complaint, however adequately, a plaintiff may present any set of facts inartfully pleaded, must be held to less stringent standards consistent with the allegations contained in the complaint than formal pleadings drafted by lawyers.' ") (quoting to support his or her claim. Twombly, 127 S.Ct. at 1969 Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (observing that the Court's prior decision in Conley v. (1976) (internal quotations omitted)); Davis v. Goord, 320 Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957), "described the F.3d 346, 350 (2d Cir.2003) (citation omitted); Donhauser breadth of opportunity to prove what an adequate v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y.2004) (Hurd, complaint claims, not the minimum standard of adequate J.). In the event of a perceived deficiency in a pro se pleading to govern a complaint's survival"). plaintiff's complaint, a court should not dismiss without granting leave to amend at least once if there is any In deciding a Rule 12(b)(6) dismissal motion, the indication that a valid claim might be stated. Branum v. court must accept the material facts alleged in the Clark, 927 F.2d 698, 704-05 (2d Cir.1991); see also complaint as true, and draw all inferences in favor of the Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires"). court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the 2. Summary Judgment Standard nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir.1998). Summary

Summary judgment is governed by Rule 56 of the judgment is inappropriate where "review of the record Federal Rules of Civil Procedure. Under that provision, reveals sufficient evidence for a rational trier of fact to summary judgment is warranted when "the pleadings, the find in the [non-movant's] favor." Treglia v. Town of discovery and disclosure materials on file, and any Manlius, 313 F.3d 713, 719 (2d Cir.2002) (citation affidavits show that there is no genuine issue as to any omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at material fact and that the movant is entitled to judgment as 2511 (summary judgment is appropriate only when "there a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. can be but one reasonable conclusion as to the verdict"). Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 B. DNA Testing S.Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 In or about September of 2001, prison officials at (2d Cir.2004). A fact is "material", for purposes of this Upstate initiated efforts to obtain a DNA sample from the inquiry, if it "might affect the outcome of the suit under plaintiff. Amended Complaint (Dkt. No. 78) ¶ ¶ 18-19. the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. Plaintiff's refusal to cooperate with those efforts led to the at 2510; see also Jeffreys v. City of New York, 426 F.3d issuance by Corrections Sergeant Cayea of a misbehavior 549, 553 (2d Cir.2005) (citing Anderson ). A material fact report charging Amaker with failing to obey an order. Id.; is genuinely in dispute "if the evidence is such that a see also Mans Aff. (Dkt. No. 229-14) Exh. B. A Tier II reasonable jury could return a verdict for the nonmoving hearing was convened to address the charges lodged in the party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. misbehavior report, resulting in a finding of guilt and the Though pro se plaintiffs are entitled to special latitude imposition of a penalty which included thirty days of when defending against summary judgment motions, they keeplock confinement, with a corresponding loss of must establish more than mere "metaphysical doubt as to privileges.

FN6,FN7 Id. the material facts." Matsushita Elec. Indus. Co. v. Zenith FN6. The DOCS conducts three types of inmate Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 disciplinary hearings. Tier I hearings address the (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, least serious infractions, and can result in minor 620-21 (2d Cir.1999) (noting obligation of court to punishments such as the loss of recreation consider whether pro se plaintiff understood nature of privileges. Tier II hearings involve more serious summary judgment process). infractions, and can result in penalties which

When the entry of summary judgment is sought, the include confinement for a period of time in the moving party bears an initial burden of demonstrating that Special Housing Unit (SHU). Tier III hearings there is no genuine dispute of material fact to be decided concern the most serious violations, and could with respect to any essential element of the claim in issue; result in unlimited SHU confinement and the loss the failure to meet this burden warrants denial of the of "good time" credits. See Hynes v. Squillace, motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 143 F.3d 653, 655 (2d Cir.), cert. denied, 525 n. 4; Security Ins., 391 F.3d at 83. In the event this initial U.S. 907, 119 S.Ct. 246 (1998). burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact FN7. Keeplock is a form of confinement for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 restricting an inmate to his or her cell, separating S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at the inmate from others, and depriving him or her 2511. of participation in normal prison activities.

Gittens v. LeFevre, 891 F.2d 38, 39 (2d *5 When deciding a summary judgment motion, a Cir.1989); Warburton v. Goord, 14 F.Supp.2d 289, 293 (W.D.N.Y.1998) (citing Gittens ); 218 (W.D.N.Y.1998) (citing 7 NYCRR pt. 304). Tinsley v. Greene, No. 95-CV-1765, 1997 WL 160124, at *2 n. 2 (N .D.N.Y. Mar. 31, 1997) On December 26, 2001 the DOCS Deputy (Pooler, D.J. & Homer, M.J.) (citing, inter alia, Commissioner for Correctional Facilities, Lucien J. Green v. Bauvi, 46 F.3d 189, 192 (2d Cir.1995)). LeClaire, Jr., wrote to the plaintiff to inform him that in Inmate conditions while keeplocked are the event of an inmate's refusal to provide requested DNA substantially the same as in the general samples corrections officials were authorized to obtain the population. Lee v. Coughlin, 26 F.Supp.2d 615, required sample through the use of reasonable force, and 628 (S.D.N.Y.1998). While on keeplock that "appropriate additional disciplinary sanctions" could confinement an inmate is confined to his or her be imposed, further noting that upon investigation into the general population cell for twenty-three hours a matter, apparently based upon a complaint lodged by the day, with one hour for exercise. Id. Keeplocked plaintiff, it was determined that in the course of their inmates can leave their cells for showers, visits, dealings with him corrections staff had "acted medical exams and counseling, and can have cell appropriately and in accordance with policies and study, books and periodicals, Id. The primary procedures set by the [DOCS] governing DNA testing." difference between keeplock and the general Amended Complaint (Dkt. No. 78) Exh. A-5; see also population confinement conditions is that Mans Aff. (Dkt. No. 229-14) Exh. D. Despite that letter, keeplocked inmates do not leave their cells for Amaker persisted in his refusal to provide the required out-of-cell programs, and are usually allowed DNA sample, leading to further disciplinary action against less time out of their cells on the weekends. Id. him.FN9 Amended Complaint (Dkt. No. 78) ¶¶ 23-26.

On October 10, 2001 plaintiff was again directed to FN9. The subsequent disciplinary proceedings provide a DNA sample, but similarly refused to honor the necessitated by virtue of plaintiff's refusal to request. Amended Complaint (Dkt. No. 78) ¶ 20. A provide a DNA sample are chronicled in a report second misbehavior report was issued to Amaker as a and recommendation issued in another action result of that failure to comply with the directive of prison brought by plaintiff Amaker. See Amaker II, Dkt. staff, resulting in a finding of guilt, following a Tier III No. 160, slip op. at pp. 3-4. hearing, and the imposition of a penalty which included six months of disciplinary confinement in a special Among the claims interposed by the plaintiff in his housing unit ("SHU"), again with a corresponding loss of second amended complaint are those surrounding the privileges.FN8 Id.; see also Mans Aff. (Dkt. No. 229-14) requirement that he provide a DNA sample pursuant to Exh. C. New York's Statutory DNA database regime and the imposition of the discipline based upon his repeated FN8. In New York, SHU cells are utilized for refusals to comply with directives to that effect. In segregating prisoners from general population asserting those claims plaintiff does not chart a new path, areas fo r vario us re a so n s in c lu d in g, but instead raises claims similar to those which have predominantly, disciplinary purposes. Lee v. previously been raised by him and other fellow inmates, C o u g h l i n , 2 6 F . S u p p . 2 d 6 1 5 , 6 1 8 and uniformly rejected by the courts. (S.D.N.Y.1998) (citing 7 NYCRR pts. 253, 254, and 301). The conditions typically experienced *6 On the heels of the decision by the New York by inmates confined in an SHU include two Court of Appeals in People v. Wesley, 83 N.Y.2d 417, 611 showers per week; one hour of outdoor exercise N.Y.S.2d 97, 633 N.E.2d 451 (1994) holding, inter alia, per day; unlimited legal visits; one non-legal visit that DNA evidence is admissible in a criminal trial, the per week; access to counselors; access to sick New York Legislature enacted a series of provisions call; cell study programs; and access to library aimed at the creation of a DNA databank. Zarie v. books. Husbands v. McClellan, 990 F.Supp. 214, Beringer, No. Civ. 9:01-CV-1865, 2003 WL 57918, at *3 (N.D.N.Y. Jan. 7, 2003) (Sharpe, M.J.). Among those was Services ("DCJS") is tasked with establishing the required a statute authorizing the gathering of DNA samples from notification procedures. That argument, however, appears individuals convicted of certain offenses after January 1, to present questions of compliance with state law and 1996. See 1994 N.Y. Laws, ch. 737, §§ 1, 3; see also regulation which are not cognizable under section 1983. Nicholas v. Goord, 430 F.3d 652, 654 n. 1 (2d Cir.2005). See Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir.1985). In 1999 that provision was amended to apply to any person convicted of certain prescribed offenses, including *7 Regardless of the nature of his challenge to New murder, prior to the statute's effective date, provided that York's indexing provision, Amaker is now precluded from at the time of amendment he or she was still serving a pursuing that claim by virtue of a prior decision from this prison sentence imposed in connection with the earlier court addressing a similar challenge by him. Among the offense. 1999 N.Y. Laws, ch 560, § 9; see Nicholas, 430 claims which he raised in Amaker II were those addressed F.3d at 654 n. 1. to the efforts of DOCS employees, including corrections officials at Upstate, to collect a DNA sample from him. Since its enactment New York's DNA indexing Plaintiff's challenge in that action to the constitutionality provision, like similar provisions from other jurisdictions, of New York's DNA indexing provisions was resolved has withstood various challenges, including to its against him based upon the issuance on November 30, constitutionality. See, e.g., United States v. Amerson, 483 2007 of a report and recommendation by United States F.3d 73, 75 (2d Cir.2007); Nicholas, 430 F.3d at 672. In Magistrate Judge David R. Homer, and approval of that response to one such challenge, the Second Circuit has report, in pertinent part, by Chief Judge Norman A. held that the DNA indexing provision is lawful, Mordue on July 10, 2008. See Amaker II, Dkt. Nos. 160, concluding that special needs of the state giving rise to 167. enactment of the statute trump the relatively minimal privacy interests and intrusion associated with a DNA Since the arguments now asserted in connection with sampling requirement. Nicholas, 430 F.3d at 671-72; see the DNA challenge were or could have been raised by also Roe v. Marcotte, 193 F.3d 72, 78-80 (2d Cir.1999) Amaker in his prior action, he is precluded from now (upholding a Connecticut DNA indexing statute relitigating those claims. See Akhenaten v. Najee, LLC, substantially similar to New York's DNA provisions). 544 F.Supp.2d 320, 327-28 (S.D.N.Y.2008). Accordingly, the portion of plaintiff's amended complaint which The basis for plaintiff's challenge in this case to the challenges the testing requirements under the DNA constitutionality of the DNA collection requirement is not identification indexing law lacks merit, and is subject to entirely clear from his amended complaint and motion dismissal. opposition papers. This uncertainty is of no moment, however, since the validity of New York's DNA indexing C. The Torture Victim Protection Act of 1991 statute has been upheld by courts, including in this circuit, "over almost every conceivable constitutional challenge." Among the claims set forth in plaintiff's complaint, as Jackson v. Ricks, No. 9:02-CV-00773, 2006 WL 2023570, amended, is a cause of action under the Torture Victim at *23 (N.D.N.Y. July 18, 2006) (Sharpe, D.J. and Lowe, Protection Act of 1991, (the "TVPA"), Pub.L. No. M.J .) (collecting cases); see also Doe v. Moore, 410 F.3d 102-256, 106 S. Stat. 73 (1992), based upon defendants' 1337, 1349-50 (11th Cir.2005) (upholding Florida's sex actions toward him. Amended Complaint (Dkt. No. 78) ¶¶ offender DNA collection statute in the face of equal 28, 34, 36. In their motion, defendants also seek summary protection and due process challenges). dismissal of this claim, as a matter of law.

The TVPA provides, in relevant part, that

In challenging New York's DNA enactment plaintiff appears to be crafting an argument which is based upon [a]n individual who, under actual or apparent authority, alleged non-compliance with its statutory empowering or color of law, of any foreign nation (1) subjects an provisions, under which the Division of Criminal Justice individual to torture shall, in a civil action, be liable for damages to that individual; ... cause of action is without merit, and subject to dismissal as a matter of law. See Brooks, 450 F.Supp.2d at 227.

Pub.L. No. 105-256, § 2(a), 106 Stat. at 73 (emphasis added). As can be seen, by its express terms the TVPA E. Eleventh Amendment/Sovereign Immunity applies only to those who act under the authority of a foreign nation. See In re: Agent Orange Product Liability *8 Plaintiff's claims in this action are brought against Litig., 373 F.Supp.2d 7, 110-13 (E.D.N.Y.2005); see also the various named defendants, both as individuals and in Arar v. Ashcroft, 414 F.Supp.2d 250, 264 their official capacities. See, e.g., Amended Complaint (E.D.N.Y.2006), aff'd, 532 F.3d 157 (2d Cir.2008). Since (Dkt. No. 78) ¶ 1. Noting that plaintiff's claims against the Amaker plainly cannot meet this requirement, his cause of defendants in their official capacities are tantamount to action under the TVPA is deficient as a matter of law, and those against the State, defendants seek their dismissal. thus subject to dismissal. The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, D. Property Loss regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057-58 (1978).

Although the portion of his complaint in which he This absolute immunity which states enjoy under the summarizes his claims does not reference such a cause of Eleventh Amendment extends both to state agencies, and action, elsewhere in that pleading Amaker alleges that in favor of state officials sued for damages in their official certain of his property was withheld by defendants Perry capacities when the essence of the claim involved seeks and Baniler, and later destroyed by defendant LaClair.FN10 recovery from the state as the real party in interest.FN11 Amended Complaint (Dkt. No. 78) ¶ 21. Defendants also Richards v. State of New York Appellate Division, Second seek dismissal of this potential claim as being without Dep't, 597 F.Supp. 689, 691 (E.D.N.Y.1984) (citing Pugh merit. and Cory v. White, 457 U.S. 85, 89-91, 102 S.Ct. 2325,

FN10. To some extent there is overlap between 2328-29 (1982)). "To the extent that a state official is sued plaintiff's property loss claims and his contention for damages in his official capacity ... the official is that through confiscation or destruction of entitled to invoke the Eleventh Amendment immunity documents and other materials related to his belonging to the state." FN12 Hafer v. Melo, 502 U.S. 21, ongoing litigation, he has been deprived of 25, 112 S.Ct. 358, 361 (1991); Kentucky v. Graham, 473 access to the courts. The property loss at issue in U.S. 159, 166-67, 105 S.Ct. 3099, 3105 (1985). connection with this claim could also potentially serve as adverse action alleged by the plaintiff in FN11. In a broader sense, this portion of connection with his retaliation claim. Both of defendants' motion implicates the sovereign these claims are addressed elsewhere in this immunity enjoyed by the State. As the Supreme report. See pp. 21-26, and 42-48, post. Court has reaffirmed relatively recently, the sovereign immunity enjoyed by the states is It is well-settled that no constitutionally cognizable deeply rooted, having been recognized in this cause of action exists for the destruction or loss of a prison country even prior to ratification of the inmate's property, provided that an adequate remedy is Constitution, and is neither dependent upon nor afforded by the state courts for such deprivation. Griffin defined by the Eleventh Amendment. Northern v. Komenecky, No. 95-CV-796, 1997 WL 204313, at *2 Ins. Co. of New York v. Chatham County, 547 (N.D.N.Y. Apr. 14, 1997) (Scullin, J.). In this instance, U.S. 189, 193, 126 S.Ct. 1689, 1693 (2006). plaintiff was entitled to avail himself of the mechanism prescribed under section nine of the New York Court of FN12. By contrast, the Eleventh Amendment Claims Act to redress his loss of property claim. See id.; does not establish a barrier against suits seeking see also Brooks v. Chappius, 450 F.Supp.2d 220, 226-27 to impose individual or personal liability on state (W.D.N.Y.2006). Accordingly, plaintiff's loss of property officials under section 1983. See Hafer, 502 U.S. at 30-31, 112 S.Ct. at 364-65. establishing that his prison's law library or legal assistance program is subpar in some theoretical sense.

Since plaintiff's damage claims against the named defendants in their official capacities are in reality claims Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, against the State of New York, thus exemplifying those 2180 (1996) (internal quotations and citations omitted). against which the Eleventh Amendment protects, they are Instead, an inmate "must go one step further and subject to dismissal. Daisernia v. State of New York, 582 demonstrate that the alleged shortcomings in the library or F.Supp. 792, 798-99 (N.D.N.Y.1984) (McCurn, J.). I legal assistance program hindered his efforts to pursue a therefore recommend that this portion of defendants' legal claim." Id. In other words, to establish a violation of motion be granted, and that plaintiff's damage claim the right of access to the courts, a plaintiff must against the defendants in their capacities as state officials demonstrate that defendants' interference caused him or be dismissed. her actual injury-that is, that a "non-frivolous legal claim had been frustrated or was being impeded" as a result of F. Plaintiff's Court Access Claims defendants' conduct.FN13 Id. at 353, 116 S.Ct. at 2181.

Scattered intermittently throughout plaintiff's FN13. Among the court access arguments complaint are allegations that through their actions asserted by plaintiff is the claim that on one defendants denied him access to the courts, in violation of occasion on September 10, 1998 plaintiff gave his rights under the First Amendment. Plaintiff's court legal mail of an unspecified nature to Corrections access denial claims are based principally upon his Officer R. Lincoln, who never delivered it. contention that prison law library facilities available to Amended Complaint (Dkt. No. 78) ¶ 7. Since him were inadequate, and additionally that through their neither plaintiff's complaint nor the record now actions corrections workers precluded him from accessing before the court discloses, however, that plaintiff those materials. See Amended Complaint (Dkt. No. 78) ¶¶ suffered any prejudice as a result of that failure, 7, 16, 32. Defendants seek dismissal of those claims based this claim lacks merit. See Govan v. Campbell, principally upon plaintiff's failure to demonstrate the 289 F.Supp.2d 289, 297-98 (N.D.N.Y.2003) existence of any injury or prejudice experienced as a result (Sharpe, M.J .). Moreover, to the extent that the of their actions. failure to promptly deliver that mail might be An inmate's constitutional right to "meaningful" proven to have legal consequences, it is noted access to the courts is well-recognized and firmly that that significance is substantially ameliorated established. Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. by the prison mailbox rule which provides, in 1491, 1495 (1977) (citations and internal quotation marks essence, that court papers are deemed filed when omitted). Although in Bounds the Supreme Court held that delivered by a prison inmate to corrections this right of access requires prison authorities "to assist officials. See Houston v. Lack, 487 U.S. 266, inmates in the preparation and filing of meaningful legal 270-72, 108 S.Ct. 2379, 2382-83 (1988); papers by providing prisoners with adequate law libraries Mingues v. Nelson, No. 96 CV 5396, 2004 WL or adequate assistance from persons trained in the law[,]" 324898, at *3 (S.D.N.Y. Feb. 20, 2004). id. at 828, 97 S.Ct. at 1498, the Court later clarified that In support of his court access claim plaintiff maintains *9 prison law libraries and legal assistance programs are that he was denied law library access between January 2, not ends in themselves, but only the means for ensuring 2001 and January 18, 2001, and again from the filing of a a reasonably adequate opportunity to present claimed second grievance related to library access on February 26, violations of fundamental constitutional rights to the 2001 until March 5, 2001. Amended Complaint (Dkt. No. courts. Because Bounds did not create an abstract, 78) ¶ 16. Plaintiff contends that this lack of access freestanding right to a law library or legal assistance, an effectively precluded him from filing a motion to inmate cannot establish relevant actual injury simply by compel-presumably related to discovery-in a pending federal court action.FN14 Id. amended complaint plaintiff does claim, although in general and conclusory terms, that he was prejudiced by

FN14. As defendants note, many of plaintiff's defendants' actions, allegedly having missed a court allegations regarding library access denial fail to ordered deadline on more than one occasion, causing identify any particular defendant to whom the adverse consequences in connection with his legal actions. denial can be fairly attributed. Since personal See, e.g., Amended Complaint (Dkt. No. 78) ¶¶ 16, 32. involvement in a constitutional deprivation is an Faced with defendants' motion raising lack of prejudice, essential requirement of a civil rights claim under however, plaintiff has failed to offer any specifics 42 U.S.C. § 1983, Colon v. Coughlin, 58 F.3d regarding those claims and to adduce proof from which a 865, 873 (2d Cir.1995), this failure thus provides reasonable factfinder could conclude that he did indeed an additional, independent basis for dismissal of experience prejudice by virtue of defendants' failure to at least portions of plaintiff's court access claims. provide him with library access, and to mail court documents, leaving instead only his conclusory allegations Plaintiff's library access claims are addressed in a without underlying evidentiary support. declaration given by Michael McKinnon, the DOCS employee charged with oversight of the law library at In sum, the record now before the court neither Clinton. See McKinnon Decl. (Dkt. No. 229-4) ¶¶ 1-2. In supports plaintiff's claim that he was denied access to that declaration McKinnon describes the law library adequate library facilities while at Clinton, nor does it facilities and procedures at Clinton, including the establish the existence of prejudice suffered as a result of established protocol for requesting library access. Id. ¶¶ any such deprivation, if indeed it did occur. Accordingly, 2-3. McKinnon notes that despite plaintiff's allegations to I recommend dismissal of plaintiff's court access claims as the contrary, see Amended Complaint (Dkt. No. 78) ¶ 7, a matter of law. he never denied library services to the plaintiff or any other inmate when faced with a court imposed deadline. G. Plaintiff's RICO Cause of Action Id. ¶ 6. McKinnon also notes that over the four month period during which the plaintiff could have commenced In broad and conclusory terms devoid of specifics, a proceeding under New York Civil Practice Law and plaintiff alleges that various of the defendants named in Rules Article 78 to challenge the disciplinary action the action have violated the Racketeer Influenced and initiated in June of 1998, one of the potential legal Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et proceedings for which he could have requested access to seq. Amended Complaint (Dkt. No. 78) ¶¶ 26, 35. library facilities, he was granted library access on seven Plaintiff's RICO claim appears to be predicated upon an occasions during July, eleven times in August, five times alleged mail fraud scheme engaged in by corrections in September and on six occasions in October of 1998, workers and "approved by Comm. Goord, Supt. and that in the following months he was permitted use of Senkowski" to steal inmate mail, and includes his request the library facilities on approximately ten days in that the court refer the matter to the United States Attorney November of 1998 and nine times in December of that for prosecution. Id. at ¶¶ 26, 35, 39. Interpreting plaintiff's year. Id. ¶ 6. According to that declaration, records at complaint as seeking criminal prosecution for the alleged Clinton also show that between June of 1999 and violation, and noting that the prerequisite for establishing September, 2001, plaintiff was scheduled for more than a claim under that provision cannot be met in this instance, four hundred library call outs, and was granted special defendants seek dismissal of plaintiff's RICO claim. access status on February 24, 2001 in light of an Despite his submission of comprehensive materials in impending March 26, 2001 court deadline. Id. ¶ 9. opposition to defendants' motion, including a thirty-eight page affidavit and a twenty-one page memorandum of law, *10 The existence of prejudice is an essential element plaintiff does not address this portion of defendants' of a First Amendment court access denial claim. Lewis, motion. 518 U.S. at 353, 116 S.Ct. at 2181. It is true that in his The substantive prohibitions under RICO are set forth principally in 18 U.S.C. § 1962(a)-(c); subdivision (d) of elements of a RICO claim have been established. While that provision prohibits parties from conspiring to violate plaintiff alleges in conclusory fashion the existence of mail one or more of those substantive provisions. In relevant fraud at the prison facilities in which he was housed, and part, section 1962 provides that mail fraud potentially qualifies as racketeering activity, see Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 454, [i]t shall be unlawful for any person employed by or 125 S.Ct. 1991, 1995 (2006), the record fails to disclose associated with any enterprise engaged in, or the the existence of a conspiracy of two or more persons, activities which affect, interstate or foreign commerce, lacks evidence of two or more acts constituting a pattern to conduct or participate, directly or indirectly, in the of racketeering activity, does not identify the relevant conduct of such enterprise's affairs through a pattern of "enterprise", fails to demonstrate how the conspirators, racketeering activity or collection of unlawful debt. through the pattern of racketeering activity, conducted the enterprise, and alleges no injury to business or property *11 18 U.S.C. § 1962(c); see Salinas v. United States, resulting from defendants' actions. See Amended 522 U.S. 52, 62, 118 S.Ct. 469, 476 (1997). Complaint (Dkt. No. 78) ¶¶ 26, 35. Since the record fails to disclose evidence from which a reasonable factfinder in In addition to providing for potential criminal this case could conclude that the requisite elements to prosecution, RICO also affords a civil right of action for sustain a civil RICO claim have been met, I recommend violation of its provisions, authorizing recovery of treble dismissal of that cause of action on the merits.FN15 damages as well as costs of the action, including reasonable attorneys' fees, in the event of an established FN15. In light of this finding I also recommend violation 18 U.S.C. § 1964(c). See Klehr v. A.O. Smith against referral of this matter to the United States Corp., 521 U.S. 179, 183, 117 S.Ct. 1984, 1987-88 Attorney, a matter which, while within the court's (1997). To plead a cognizable civil RICO claim, a party inherent authority in the event of a perceived must allege "(1) conduct, (2) of an enterprise, (3) through criminal violation, see, e.g., ACLI Govn't Sec., a pattern, (4) of racketeering activity," as well as "injury Inc. v. Rhoades, 989 F.Supp. 462, 467 to business or property as a result of the RICO violation." (S.D.N.Y.1997), does not appear to be Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, warranted. This determination, of course, does 88 (2d Cir.1999). not preclude the plaintiff from filing a complaint with the United States Attorney or other The pleading of a civil RICO violation is subject to appropriate federal authorities. the heightened requirement that its supporting allegations must be pleaded with particularity. See Fed.R.Civ.P. 9(b); H. Deliberate Medical Indifference see also Anatian, 193 F.3d at 88-89. Additionally, the court's local rules require that when a civil RICO claim is One of the central themes presented in plaintiff's asserted before this court, a RICO statement containing prolix, narrative-styled amended complaint is his claim certain specified information must be filed by the party that certain of the defendants have failed to properly treat raising the claim. N.D.N.Y.L.R. 9.2. A review of the his various medical conditions, many of which are not record in this case reveals that neither of these critical specified with any degree of particularity. Defendants requirements has been met, thereby providing a threshold contend that based upon the record now before the court basis for dismissal of plaintiff's RICO claim. See Spoto v. they are entitled to dismissal of that claim as a matter of Herkimer County Trust, No. 99-CV-1476, 2000 WL law, arguing that plaintiff neither suffers from a serious 533293, at *3 n. 2 (N.D.N.Y. Apr. 27, 2000) (Munson, J.). medical need, nor were the named defendants subjectively and deliberately indifferent to any such need.

Turning to the merits, it is clear that the record falls *12 The Eighth Amendment's prohibition of cruel and considerably short of establishing a basis upon which a unusual punishment encompasses punishments that reasonable factfinder could conclude that the requisite involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of further significant injury or the unnecessary and wanton decency that mark the progress of a maturing society." infliction of pain' "; since medical conditions vary in Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, severity, a decision to leave a condition untreated may or 290, 291 (1976); see also Whitley v. Albers, 475 U.S. 312, may not be unconstitutional, depending on the facts. 319, 106 S.Ct. 1076, 1084 (1986) (citing, inter alia, Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir.2000) Estelle ). While the Eighth Amendment does not mandate (quoting, inter alia, Chance ). Relevant factors in making comfortable prisons, neither does it tolerate inhumane this determination include injury that a " 'reasonable treatment of those in confinement; thus the conditions of doctor or patient would find important and worthy of an inmate's confinement are subject to Eighth Amendment comment or treatment' ", a condition that " 'significantly scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. affects' " a prisoner's daily activities, or causes " 'chronic 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. and substantial pain.' " Chance, 43 F.3d at 701 (citation 337, 349, 101 S.Ct. 2392, 2400 (1981)). omitted); LaFave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *2-3 (N.D.N.Y. Apr. A claim alleging that prison conditions violate the 3, 2002) (Sharpe, M.J.).

Eighth Amendment must satisfy both an objective and subjective requirement-the conditions must be *13 Deliberate indifference, in a constitutional sense, "sufficiently serious" from an objective point of view, and exists if an official knows of and disregards an excessive the plaintiff must demonstrate that prison officials acted risk to inmate health or safety; the official must "both be subjectively with "deliberate indifference." See Leach v. aware of facts from which the inference could be drawn Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, that a substantial risk of serious harm exists, and he must J.) (citing Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321 also draw the inference." Farmer, 511 U.S. at 837, 114 (1991)); Waldo v. Goord, No. 97-CV-1385, 1998 WL S.Ct. at 1979; Leach, 103 F.Supp.2d at 546 (citing Farmer 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and ); Waldo, 1998 WL 713809, at *2 (same). It is Homer, M .J.); see also, generally, Wilson, 501 U.S. 294, well-established, however, that mere disagreement with a 111 S.Ct. 2321. Deliberate indifference exists if an official prescribed course of treatment, or even a claim that "knows of and disregards an excessive risk to inmate negligence or medical malpractice has occurred, does not health or safety; the official must both be aware of facts provide a basis to find a violation of the Eighth from which the inference could be drawn that a substantial Amendment. Estelle, 429 U.S. at 105-06, 97 S.Ct. at risk of serious harm exists, and he must also draw the 201-02; Chance, 143 F.3d at 703; Ross v. Kelly, 784 inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1978; F.Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), Leach, 103 F.Supp.2d at 546 (citing Farmer ); Waldo, cert. denied, 506 U.S. 1040, 113 S.Ct. 828 (1992). The 1998 WL 713809, at *2 (same). question of what diagnostic techniques and treatments should be administered to an inmate is a "classic example In order to state a medical indifference claim under of a matter for medical judgment"; accordingly, prison the Eighth Amendment, a plaintiff must allege a medical personnel are vested with broad discretion to deprivation involving a medical need which is, in determine what method of care and treatment to provide objective terms, " 'sufficiently serious' ". Hathaway v. to their patients. Estelle, 429 U.S. at 107, 97 S.Ct. at 293; Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (citing Wilson, Chance, 143 F.3d at 703; Rosales v. Coughlin, 10 501 U.S. at 298, 111 S.Ct. at 2324), cert. denied sub nom., F.Supp.2d 261, 264 (W.D.N.Y.1998).

Foote v. Hathaway, 513 U.S. 1154, 115 S.Ct. 1108 (1995). A medical need is serious for constitutional Plaintiff's medical indifference claims, while purposes if it presents " 'a condition of urgency' that may referenced elsewhere, are summarized in paragraph result in 'degeneration' or 'extreme pain'." Chance v. twenty-seven of his amended complaint, and augmented in Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (citations considerably greater detail in his summary judgment omitted). A serious medical need can also exist where " submissions including, notably, his affidavit. Plaintiff's 'failure to treat a prisoner's condition could result in medical concerns appear to center upon disagreement over the course of defendants' treatment of his diminished unnecessary to address the sufficiency of plaintiff's eyesight; chronic back pain, diagnosed as degenerative allegations in this regard. disc disease; and pain, "clicking and popping" in his knee.

Amended Complaint (Dkt. No. 78) ¶¶ 12, 27. Generally 2. Deliberate Indifference speaking, plaintiff's medical indifference claim recites a litany of instances in which plaintiff did not receive Turning to the subjective element of the deliberate desired medication, medical equipment, physical therapy, indifference inquiry I find, as did the court in Amaker II, or treatment for his conditions.FN16 See Amended that rather than disclosing any indifference on the part of Complaint (Dkt. No. 78) ¶ 27. prison medical officials to plaintiff's medical needs, the record instead reflects a comprehensive and at times FN16. From a comparison of plaintiff's medical intense pattern of treatment for plaintiff's various medical indifference claims in this case with those conditions which, though plainly not to his complete rejected in Amaker II, it appears that there is liking, easily fulfills constitutionally mandated minimal considerable overlap. requirements.

Plaintiff's medical indifference claim appears to relate 1. Serious Medical Needs to treatment received at both of the correctional facilities at issue in this case, although the vast majority of those In their motion, defendants maintain that none of the allegations relate to his complaints regarding medical conditions upon which plaintiff's medical indifference attention received while at Clinton. To the extent that claims are predicated rise to a level of constitutional plaintiff's claims involve the sufficiency of medical significance. In Amaker II the court found that plaintiff's treatment administered at Upstate, similar claims were claims regarding his vision and delay in eye treatment did carefully reviewed by the court in Amaker II, resulting in not establish the existence of a serious medical need or a finding that the defendants were not deliberately injury. See Report and Recommendation in Amaker II indifferent to his serious medical needs during the time of (Dkt. No. 160) at pp. 15-16 and Memorandum-Decision his incarceration at Upstate. See Report and and Order (Dkt. No. 167) at pp. 3, 6. Similarly, the Recommendation in Amaker II (Dkt. No. 160) at pp. Amaker II court concluded that in complaining regarding 15-17. That determination is dispositive of the portion of the treatment of his knee, including denial of magnetic plaintiff's medical indifference claim in this action related resonance imaging ("MRI") testing and knee braces, to his medical care at Upstate.FN17 See Akhenaten, 544 plaintiff also failed to make the threshold requirement of F.Supp.2d at 327-28. establishing a serious physical injury or need. Id . at 16-17. Likewise, while noting a division among the courts FN17. Plaintiff's medical indifference claims regarding this issue, the court in that case nonetheless carry forward to his time at Upstate, following a concluded that plaintiff's claim of abdominal pain, as transfer into that facility on October 31, 2001. In drafted, did not successfully present a material issue of his complaint, as amended, plaintiff asserts that fact regarding serious medical need. Id. at 17. during the course of that transfer he was "made *14 Having carefully reviewed the record now to walk in waist chain hurting his herniated discs presented, like the court in Amaker II I doubt plaintiff's in his lower back causing his legs to go numbed ability to establish, at trial, the existence of a serious [sic] [and that he] never was send [sic] to a medical condition of constitutional significance to which medical doctor ...." Amended Complaint (Dkt. the defendants were deliberately indifferent. Because I No. 78) ¶¶ 21, 24. This claim is contradicted by find that Amaker cannot establish indifference on the part plaintiff's medical records, however, which of defendants to any of his medical needs, regardless of reveal that upon his arrival at Upstate he was whether they were sufficiently serious to trigger medically examined, screened and orientated, protections of the Eighth Amendment, and defendants do with no indication of any complaints of pain or not appear to press the issue, I nonetheless find it numbness at that time; in fact, according to his medical records, plaintiff denied having any (Dkt. No. 229-14) Exh. A; Johnson Decl. (Dkt. No. 229-3) injury or current medical complaint when ¶ 11. Evaluations arranged by prison officials regarding questioned during that process. See Mans Aff. plaintiff's back condition have included MRI testing as (Dkt. No. 229-14) Exh. A, 10/31/08 Entrance well as an EMG study/ nerve conduction study on Exam Form, Screening and Physical Assessment November 1, 1999, ordered by Dr. Ellen. Johnson Decl. Form, Inmate Orientation Form, and Incoming (Dkt. No. 229-3) ¶ 11.

Draft Form. Despite plaintiff's further claim that he was not seen by medical officials at Upstate, *15 Another of plaintiff's complaints relates to the records once again reveal otherwise, treatment received for his knee. Plaintiff's medical records reflecting that prior to the time of his transfer out reveal that a bilateral physical examination of Amaker's of that facility on April 22, 2002, he was seen by knees was conducted on November 15, 1999 by Dr. Ellen. medical personnel at Upstate more than forty Manns Aff. (Dkt. No. 229-14) Exh. A, 11/1/99, 11/8/99, times, with various complaints being registered 11/15/99 Entries; Johnson Decl. (Dkt. No. 229-3) ¶ 11. by him along the way. Neither the results of Dr. Ellen's examination nor anything contained in plaintiff's records was viewed as indicating Turning to plaintiff's medical treatment while at the need to perform MRI testing on his knees. Id. Clinton, medical records of plaintiff's care at that facility reflect that between June 8, 1999 and December 1, The specifics of plaintiff's complaints regarding his 1999-the period covered by his complaints regarding knee condition include allegations that prison medical medical care at Clinton-he was seen on approximately one personnel failed to provide him with proper knee braces, hundred occasions regarding complaints concerning his failed to order MRI testing, and denied his requests to see back, knee, and neck pain, chronic headaches, and various a specialist to address the pain, clicking and popping being other symptoms by an array of health care providers which experienced in both knees. Plaintiff's conclusory included prison doctors, outside specialists, physician allegations of not being provided with a knee brace are assistants, therapists and nurses. See Mans Aff. (Dkt. No. belied by the record. On April 13, 1999 one neoprene 229-14) Exh. A (filed under seal); see also Johnson Decl. right knee brace was received at the facility for the (Dkt. No. 229-3) ¶ 7. During that time plaintiff was plaintiff, with an indication that the other was provided with medical examinations, consultations, back-ordered. See Mans Aff. (Dkt. No. 229-14) Exh. A, physical therapy, knee braces and supports, and various 4/13/99 entry. In any event upon receipt of the special medications, and additionally was the subject of x-rays neoprene knee braces, they were refused by the plaintiff. and magnetic resonance imaging ("MRI") testing. Id. Id., 1/6/00 Interdepartmental Communication.

One of the conditions of which plaintiff complains Plaintiff's medical records reflect that medical relates to chronic back pain. Plaintiff's medical records officials at Clinton were in fact fully cognizant of reveal that he has been diagnosed as suffering from plaintiff's complaints regarding knee pain, and took degenerative disc disease. Mans Aff. (Dkt. No. 229-14) measures to address that condition. On November 8, 1999 Exh. A; see also Johnson Decl. (Dkt. No. 229-3) ¶ 7. a neurological examination of plaintiff's lower extremities According to Dr. Vonda Johnson, the Medical Director at was conducted, followed by a physical examination of Clinton, while certain treatment regimens may afford some both of plaintiff's knees on November 15, 1999. Johnson measure of relief for that condition, depending upon the Decl. (Dkt. No. 229-3) ¶ 11; Mans Aff. (Dkt. No. 229-14) particular patient, it cannot necessarily be "fixed" through Exh. A, 11/1/99, 11/8/99, 11/15/99 entries. The results of surgery, medication, or physical therapy. Johnson Decl. those examinations by Dr. Ellen revealed nothing to (Dkt. No. 229-3) ¶ 9. In any event, plaintiff's health indicate the need for MRI testing. W hile plaintiff records reveal that plaintiff was provided considerable challenges this determination, unsupported by any testing and treatment, including physical therapy, in an evidence suggesting that the opinions of Dr. Ellen were effort to address that condition. See generally Mans Aff. not medically appropriate, his claim in this regard represents nothing more than disagreement over a chosen accountable for the cost of any replacement that course of treatment, and is insufficient to support a claim occurred within two years of his last eye of indifference. Estelle, 429 U.S. at 105-06, 97 S.Ct. at examination and the issuance of glasses. See id., 201-02; Chance, 143 F.3d at 703; Ross v. Kelly, 784 Interdepartmental Communications from Dr. Lee F.Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.3d 296 (2d Cir.), to Plaintiff Regarding DOCS Policy for cert. denied, 506 U.S. 1040, 113 S.Ct. 828 (1992). Eyeglasses, dated February 26, 1999. Plaintiff's records reveal that his eyes were subsequently Another of plaintiff's medical complaints stems from examined on July 8, 1998, at which time he the claim that while at Clinton he was denied treatment by received a pair of glasses, and that he was Dr. Lee for a period of three months. Amended Complaint retested on April 26, 1999 after complaining of (Dkt. No. 78) ¶ 8. Neither plaintiff's complaint nor his eye pain. See Id., 7/9/98 and 4/26/99 Entries. motion submission, however, contains specifics regarding While there is considerable question as to the time period involved. Moreover, while there may well whether plaintiff's eye condition constitutes a have been periods of such a duration over which he was serious medical need for purposes of the Eight not seen by a doctor, a review of plaintiff's medical Amendment, particularly in view of the lack of records fails to disclose any three month interval during allegations that his condition degenerated or he which he was not medically treated by any DOCS medical experienced severe pain as a result of the delay personnel at Clinton. See Mans Aff. (Dkt. No. 229-14) in providing him with an eye examination and Exh. A. Despite plaintiff's apparent belief to the contrary, glasses, see Koehl v. Dalsheim, 85 F.3d 86, 88 the Eighth Amendment does not guarantee a prison inmate (2d Cir.1996); Abdush-Shahid v. Coughlin, 933 unfettered access to a prison physician at his or her F.Supp. 168, 181 (N.D.N.Y.1996) (Koeltl, J.), it insistence. See Harrison v. Barkley, 219 F.3d 132, 142 (2d is clear that the defendants were not, as alleged, Cir.2000) (" '[S]ociety does not expect that prisoners will indifferent to his vision impairment. have unqualified access to health care ....' ") (quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 [i]t must be remembered that the State is not (1992)). constitutionally obligated, much as it may be desired by inmates, to construct a perfect plan for [medical] care *16 The vast majority of plaintiff's medical that exceeds what the average reasonable person would complaints surround the belief that he was not provided expect or avail herself of in life outside the prison walls. with adequate physical therapy, his disagreement over [A] correctional facility is not a health spa, but a prison being told that he would have to pay for replacement of in which convicted felons are incarcerated. Common his broken eyeglasses, and the denial of appropriate experience indicates that the great majority of ... shower and gym passes.FN18 These complaints fall well prisoners would not in freedom or on parole enjoy the short of establishing deliberate medical indifference of excellence in [medical] care which the plaintiffs constitutional proportions on the part of prison officials at understandably seek .... We are governed by the Clinton and Upstate. As the Second Circuit has noted, principle that the objective is not to impose upon a state prison a model system of [medical] care beyond average FN18. According to his health records, plaintiff needs but to provide the minimum level of [medical] was seen at Clinton by Nurse Rizoff on June 16, care required by the Constitution. The Constitution does 1998, claiming that his eyeglasses were broken not command that inmates be given the kind of medical and requesting an eye examination and new attention that judges would wish to have for glasses. See Mans Aff. (Dkt. No. 229-14) Exh. themselves.... The essential test is one of medical A, 6/16/98. Nurse Rizoff inquired as to how the necessity and not one simply of desirability. glasses were broken, and advised the plaintiff that pursuant to the DOCS health services policy Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986) regarding vision care services he might be held (internal quotations and citations omitted).

Plaintiff's ambulatory health record, which is both In order to state a prima facie claim under section extensive and comprehensive, has been reviewed by Dr. 1983 for retaliatory conduct, a plaintiff must advance Vonda Johnson, the Medical Director at Clinton. Based non-conclusory allegations establishing that 1) the conduct upon her professional judgment, Dr. Johnson opines that at issue was protected; 2) the defendants took adverse the plaintiff neither suffered from any acute medical action against the plaintiff; and 3) there was a causal condition requiring immediate medical care and treatment connection between the protected activity and the adverse or which resulted in harm to his health or well-being, nor action-in other words, that the protected conduct was a was he denied appropriate treatment by medical and "substantial or motivating factor" in the prison officials' nursing staff both at Clinton and Upstate, as well as by any decision to take action against the plaintiff. Mount Healthy outside specialists required under the circumstances. City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, Johnson Decl. (Dkt. No. 299-3) ¶¶ 14-15. Having engaged 97 S.Ct. 568, 576 (1977); Dillon v. Morano, 497 F.3d in a careful review of plaintiff's medical records, informed 247, 251 (2d Cir.2007); Dawes, 239 F.3d at 492 (2d by plaintiff's arguments as well as Dr. Johnson's opinions, Cir.2001). If the plaintiff carries this burden, then to avoid I am of the view that no reasonable factfinder could liability the defendants must show by a preponderance of conclude that defendants were deliberately indifferent to the evidence that they would have taken action against the any serious medical condition suffered by the plaintiff, and plaintiff "even in the absence of the protected conduct." therefore recommend dismissal of plaintiff's deliberate Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. If taken indifference claims as a matter of law. for both proper and improper reasons, state action may be upheld if the action would have been taken based on the I. Retaliation proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).

In his amended complaint, although with the same degree of indefiniteness that has plagued his submissions Analysis of retaliation claims thus requires careful in other substantive areas, plaintiff also asserts claims of consideration of the protected activity in which the inmate violation of his First Amendment rights based upon plaintiff has engaged, the adverse action taken against him retaliation for having engaged in protected activity, or her, and the evidence tending to link the two. W hen including the filing of grievances. Defendants also seek such claims, which are exceedingly case specific, are dismissal of plaintiff's retaliation claim as fatally nebulous alleged in only conclusory fashion, and are not supported and unsupported. by evidence establishing the requisite nexus between any *17 When adverse action is taken by prison officials protected activity and the adverse action complained of, a against an inmate, motivated by the inmate's exercise of a defendant is entitled to the entry of summary judgment right protected under the Constitution, including the free dismissing plaintiff's retaliation claims. Flaherty, 713 F.2d speech provisions of the First Amendment, a cognizable at 13. retaliation claim under 42 U.S.C. § 1983 lies. See Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir.1988). As the It should also be noted that personal involvement of Second Circuit has repeatedly cautioned, however, such a named defendant in any alleged constitutional claims are easily incanted and inmates often attribute deprivation is a prerequisite to an award of damages adverse action, including the issuance of misbehavior against that individual under section 1983. Wright v. reports, to retaliatory animus; courts must therefore Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing Moffitt v. approach such claims "with skepticism and particular Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) and care." Dawes v. Walker, 239 F .3d 489, 491 (2d Cir.2001) McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d cert. denied, 434 U.S. 1087, 98 S.Ct. 1282 (1978)). In Cir.1983)), overruled on other grounds, Swierkiewicz v. order to prevail on a section 1983 cause of action against Sorema N.A., 534 U.S. 506 (2002); Davis v. Goord, 320 an individual, a plaintiff must show some tangible F.3d 346, 352 (2d Cir.2003) (same). connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). As is true of other types of he pay for spices and food consumed in connection with claims, this principle applies to causes of action claiming his celebration of Ramadan was retaliatory. Amended unlawful retaliation. See Abascal v. Hilton, No. Complaint (Dkt. No. 78) ¶ 13. It is doubtful that a 04-CV-1401, 2008 WL 268366, at *10 (N.D.N.Y. Jan. 30, reasonable factfinder could conclude that this requirement 2008) (Kahn, D.J. and Lowe, M.J.). rose to a level sufficient to constitute an adverse action.

Cf. Kole v. Lappin, 551 F.Supp.2d 149, 155 *18 Analysis of plaintiff's retaliation cause of action (D.Conn.2008) (dismissing plaintiff's retaliation claim is complicated by virtue of his failure in most instances to based on her complaint that the prison reduced the number state, with any modicum of clarity, what specific protected of items sold as kosher-for Passover for inmates in activity triggered the retaliatory response and what the response to her filing a grievance regarding the one resulting adverse action was, including to articulate the hundred dollar spending limit). In any event, more timeframe involved. Among the actions apparently importantly, there is no evidence among any of plaintiff's attributed by Amaker to retaliatory animus are searches of submissions which would establish the requisite nexus his cell, conducted on March 22 and 23, 1999. Amended between the imposition of that requirement and plaintiff Complaint (Dkt. No. 78) ¶ 10. Defendants' submissions, having engaged in protected activity. however, reveal that the first of those two searches was based upon suspicion that the plaintiff, one of several Undeniably, it appears that the plaintiff in this case inmates present in the law library at the time a corrections frequently avails himself of his First Amendment right to officer's handcuff key case was discovered missing, could complain, by instituting litigation, filing grievances, and be in possession of that contraband.FN19 Bell Decl. (Dkt. pursuing other channels, regarding prison conditions and No. 229-10) ¶ 6. The second of those searches was a his treatment as a DOCS inmate. It is also clear that the routine search performed in accordance with DOCS plaintiff has been subject to disciplinary action by prison directives requiring periodic random cell searches. Id. ¶¶ officials with some regularity. While these two 6-8. Since it therefore appears that both of those actions circumstances could suffice to establish two of the three were taken for independent and legitimate reasons, they requisite elements to establish a claim of unlawful cannot form the basis of a retaliation claim. Mount retaliation, at least at the summary judgment stage, the Healthy City Bd. of Ed., 429 U.S. at 287, 97 S.Ct. at 576; record is wholly lacking in evidence from which a see also Lowrence v. Achtyl, 20 F.3d 529, 535 (2d reasonable factfinder could conclude that the third and Cir.1994). critical element, linking one or more of the adverse actions to plaintiff's protected activity, has been satisfied. FN19. It is well-established that as a prison Accordingly, I recommend dismissal of plaintiff's inmate plaintiff has no Fourth Amendment right retaliation claim as a matter of law. to privacy which would preclude a search of his cell, accomplished for legitimate reasons. J. Equal Protection Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 3200 (1984). A cell search motivated *19 Plaintiff's complaint, as amended, also makes out of retaliatory animus, however, could be passing reference to the denial by defendants of his right found to support a claim of unlawful retaliation to equal protection. See, e.g., Amended Complaint (Dkt. provided that all of the prerequisites for No. 78) ¶ 28, 33. establishing a First Amendment claim were met. The Equal Protection Clause directs state actors to See H'Shaka v. Drown, No. 9:03-CV-937, 2007 treat similarly situated people alike. See City of Cleburne, WL 1017275, at *12 (N.D.N.y. Mar. 30, 2007) Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 (Kahn, D.J. and Treece, M.J.). S.Ct. 3249, 3254 (1985). To prove a violation of the Equal Protection Clause, a plaintiff must demonstrate that he or Although it is far from clear, plaintiff also appears to she was treated differently than others similarly situated as assert that the requirement imposed by prison officials that a result of intentional or purposeful discrimination directed at an identifiable or suspect class. See Giano v. for the denial of procedural due process arising out of a Senkowski, 54 F.3d 1050, 1057 (2d Cir.1995) (citing, inter disciplinary hearing, a plaintiff must show that he or she alia, McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1) possessed an actual liberty interest, and 2) was deprived 1756, 1767 (1987)). The plaintiff must also show that the of that interest without being afforded sufficient process. disparity in treatment "cannot survive the appropriate level See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir.2000) of scrutiny which, in the prison setting, means that he must (citations omitted); Hynes, 143 F.3d at 658; Bedoya v. demonstrate that his treatment was not reasonably related Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996). The to [any] legitimate penological interests." Phillips v. procedural safeguards to which a prison inmate is entitled Girdich, 408 F.3d 124, 129 (2d Cir.2005) (quoting Shaw before being deprived of a constitutionally cognizable v. Murphy, 532 U.S. 223, 225, 121 S.Ct. 1475 (2001) liberty interest are well-established, the contours of the (internal quotation marks omitted)). requisite protections having been articulated in Wolff v. McDonnell, 418 U .S. 539, 564-67, 94 S.Ct. 2963, In this instance neither plaintiff's complaint, as 2978-80 (1974). Under Wolff, the constitutionally amended, nor the record now before the court provides mandated due process requirements, include 1) written specifics to flesh out plaintiff's equal protection claim. notice of the charges; 2) the opportunity to appear at a Presumably, the claim is rooted in the alleged disciplinary hearing and present witnesses and evidence, differentiation of prison officials in their treatment of him, subject to legitimate safety and penological concerns; 3) based upon his race. To be sure, plaintiff's submissions a written statement by the hearing officer explaining his or indicate the use of at least one racial epithet by prison her decision and the reasons for the action being taken; officials. The record, however, is otherwise devoid of and 4) in some circumstances, the right to assistance in evidence from which a reasonable factfinder could preparing a defense. Wolff, 418 U.S. at 564-67, 94 S.Ct. at conclude that the defendants discriminated as against the 2978-80; see also Eng v. Coughlin, 858 F .2d 889, 897-98 plaintiff based upon his race or some other protected (2d Cir.1988). In order to pass muster under the criteria. Instead, plaintiff's allegations fall within the Fourteenth Amendment, hearing officer's disciplinary category of those observed by the Second Circuit to be determination must garner the support of at least "some insufficient, the court noting that "complaints relying on evidence". Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. the civil rights statutes are insufficient unless they contain 2768 (1985). some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that *20 Having carefully searched the record now before shock but have no meaning." Barr v. Abrahams, 810 F.2d the court, I am unable to find that Amaker experienced the 358, 363 (2d Cir.1987). Discerning no basis upon which deprivation of a constitutionally cognizable liberty interest a reasonable factfinder could conclude that the defendants sufficient to trigger the protections afforded under the have violated Amaker's right to equal protection under the Fourteenth Amendment. Moreover, even assuming Fourteenth Amendment, I similarly recommend dismissal arguendo the existence of such a liberty interest, plaintiff's of that claim. submissions do not disclose any failure to comply with the constitutional mandates of the Fourteenth Amendment, K. Procedural Due Process including those articulated by the Supreme Court in Wolff.

Accordingly, I recommend dismissal of plaintiff's

Plaintiff's amended complaint also asserts, once again procedural due process cause of action, as a matter of law. in wholly conclusory fashion, that his right to due process was violated by the defendants. Conspicuously absent IV. SUMMARY AND RECOMMENDATION from plaintiff's submissions, however, is an indication of what cognizable liberty interests are implicated in this Plaintiff's amended complaint, though rambling and cause of action, as well as illumination as to the reasons consisting of varied and wide-ranging claims based upon for his claim that due process was not afforded. acts allegedly occurring at both Clinton and Upstate, when To successfully state a claim under 42 U.S.C. § 1983 boiled down to its essence asserts claims of medical indifference, constitutional violations based on DNA END OF DOCUMENT testing, retaliation, and denial of access to the courts.

Having carefully considered the record now before the court I conclude that no factfinder could find in plaintiff's favor on any of these claims, and that defendants are thus entitled to dismissal of all claims against them, as a matter of law.FN20 Accordingly, it is hereby

FN20. Based upon this finding I have opted not to address the defendants' additional arguments of lack of personal involvement and entitlement to qualified immunity. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001). Similarly, I have chosen not to address the motion filed on behalf of defendant R. Rivera seeking dismissal for failure to state a cause of action in light of my recommendation regarding defendants' summary judgment motion.

RECOMMENDED that defendants' motion for summary judgment dismissing plaintiff's complaint (Dkt. No. 229) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety; and it is further hereby

RECOMMENDED that in light of this disposition the motion of defendant R. Rivera to dismiss plaintiff's claims against him for failure to state a cause of action upon which relief may be granted (Dkt. No. 237) be DENIED as moot.

NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

It is further ORDERED that the Clerk of the Court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

N.D.N.Y.,2009.

Amaker v. Kelley Slip Copy, 2009 WL 385413 (N.D.N.Y.)

Recommendation, and after reviewing the submissions, the Court adopts the proposed findings of the Report and Recommendation.

Only the Westlaw citation is currently available.

This decision was reviewed by West editorial staff Accordingly, for the reasons set forth in Magistrate and not assigned editorial enhancements. Judge Schroeder's Report and Recommendation, defendants' motion for summary judgment is granted United States District Court, insofar as defendants seek to dismiss plaintiffs' claims for monetary damages under RLUIPA and otherwise is W.D. New York. denied; plaintiffs' motion for summary judgment is granted Anthony D. AMAKER, et al., Plaintiffs, insofar as plaintiffs seek permanent injunctive relief v. pursuant to RLUIPA and that defendants are permanently Commissioner Glenn S. GOORD, et al., Defendants. enjoined from punishing plaintiffs for refusing to cut their No. 06--CV--490. hair or refusing to change their religious affiliation and from precluding plaintiffs' attendance at Nation of Islam June 23, 2010. services and classes because of their dreadlocks; and Anthony D. Amaker, Alden, NY, pro se. plaintiffs' motion for summary judgment is granted with respect to plaintiffs' cause of action alleging a violation of Ruhullah Hizuullah, Comstock, NY, pro se. their free exercise rights pursuant to the First Amendment of the United States Constitution.

George Fluellen, West Coxsackie, NY, pro se.

The case is referred back to Magistrate Judge

J. Richard Benitez, NYS Attorney General's Office, Schroeder for further proceedings. Department of Law, Rochester, NY, for Defendants.

SO ORDERED.

ORDER

RICHARD J. ARCARA, District Judge.

*1 This case was referred to Magistrate Judge H. Amaker v. Goord Kenneth Schroeder, Jr. pursuant to 28 U.S.C. § 636(b)(1). Not Reported in F.Supp.2d, 2010 WL 2572972 On May 1, 2009, defendants filed a motion for summary (W.D.N.Y.) judgment. On September 4, 2009 plaintiffs filed a motion END OF DOCUMENT for summary judgment. On March 25, 2010, Magistrate Judge Schroeder filed a Report and Recommendation, recommending that defendants' motion be granted in part and that plaintiffs' motion be granted in part.

Defendants filed objections to the Report and Recommendation on April 8, 2010 and plaintiffs filed a response thereto.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and W.D.N.Y.,2010. director of the Binding Together work release program, as a Defendant. Pursuant to my Order of April 18, 2006, the Attorney General, in Only the Westlaw citation is currently available. conjunction with the U.S. Marshals, attempted to United States District Court, effectuate service upon Ms. Chow. On May 11, 2006, the Attorney General reported to me that S.D. New York. the Marshals were unable to effectuate service Jeffrey DICKS, Plaintiff, upon Ms. Chow, as she resigned from Binding v. Together in 2003, was believed to have moved BINDING TOGETHER, INC.; Joseph Williams, the out of the area, and her whereabouts were Warden of Lincoln Correctional Facility; Members of unknown. On September 19, 2006, Plaintiff the Temporary Release Committee; TRC Chairperson again named Chow as a Defendant in his Joan Taylor, SCC; P.O Brewington; C.O. Fair; Amended Complaint. No service was effectuated Corrections Counselor Ms. Donna McDonald; Deputy (nor, it appears, attempted). On September 29, Superintendent Maria Tirone; and State of New York, 2006, Plaintiff, in his now-operative Amended Defendants. Complaint, did not name Chow as a Defendant. No. 03 Civ. 7411(HB). The Clerk of the Court terminated Janet Chow as a Defendant on September 29. May 18, 2007.

OPINION & ORDER In a letter of July 31, 2006, Defendant requested leave of court to amend his Hon. HAROLD BAER, JR., District Judge.FN1 complaint to add Binding Together. Defendant

FN1. The Court wishes to thank Chris Fitzgerald named Binding Together as a Defendant in his of CUNY School of Law for his assistance in now-operative Amended Complaint of researching this Opinion. September 29, 2006. No service was effectuated (nor, it appears, attempted). *1 Pro se Plaintiff Jeffrey Dicks ("Plaintiff" or Accordingly, I now dismiss Binding Together "Dicks") brings this action against Defendants from this case as a Defendant. Superintendent Joseph Williams, Deputy Superintendent Maria Tirone, Corrections Counselor Donna MacDonald, In his amended complaint of February 15, Temporary Release Committee chairperson Joan Taylor, 2006, Defendant also named Parole Officer "Corrections Officer Fair," FN2 and the State of New York "R. Carrington." Service was attempted on (collectively, "Defendants").FN3 Plaintiff alleges various Carrington by the U.S. Marshals on May 10, constitutional claims pursuant to 42 U.S.C. § 1983. 2006, but was returned unexecuted. The Defendants move to dismiss Plaintiff's complaint in its Attorney General subsequently informed me entirety. that Carrington died on July 5, 2005.

Defendant did not name Carrington as a

FN2. Defendants have not, to date, identified the Defendant in subsequent complaints. The first name of "Corrections Officer Fair" in their Clerk of the Court terminated Carrington as a moving papers, prior motions, or prior Defendant on September 19, 2006. correspondence with this Court.

In his amended complaint of February 15, FN3. Defendant, in his amended complaint of 2006, Defendant also named Parole Officer February 15, 2006, named Janet Chow, the Mrs. Brewington as a Defendant. Service was MacDonald, "that he would need to access facilities that attempted on Brewington by the U.S. Marshals would enable him to properly address his legal concerns." on May 10, 2006, but was returned Id. at ¶ 12. Specifically, Plaintiff alleges that he u n e x e c u ted . T h e A tto r n e y G e n e r a l "constantly asked for time to research ... and prepare an subsequently informed me that Brewington is appeal ... to exhaust the remaining state remedies before critically ill and on extended leave from the the 30-day statutory limit," and gave notice to MacDonald New York State Division of Parole. Defendant and his parole officer, Brewington, of his concerns.FN5 Id.

named Brewington in his subsequent at ¶¶ 14-15. However, Plaintiff states that about "3 1/2 Complaints, including his now-operative months after the State Court's denial," FN6 "the facility"

Amended Complaint of September 29, 2006. issued him "a pass for Saturdays to attend the New York No further service was effectuated (nor, it Public Library in Manhattan.FN7 Id. at ¶ 27.

appears, attempted). Accordingly, I now dismiss Brewington from this case as a FN5. Plaintiff refers to the fact that at some Defendant. point, he filed a motion pursuant to N.Y.Crim.

Proc. Law § 440, that was denied in 2001. Pl.

For the reasons articulated below, Defendants' motion Mem. Opp. at 33. It seems, although is not is granted in part and denied in part. entirely clear, that Plaintiff filed a petition for habeas corpus in state court. Plaintiff also suggests that he filed a § 2254 federal habeas corpus petition at some point (apparently, in the The following facts are taken from Plaintiff's Northern District of New York, subsequently complaint (and construed liberally, as Plaintiff is pro se ). transferred to the Eastern District of New York), A. Underlying Facts of Plaintiff's Complaint and that that § 2254 petition was denied for failure to exhaust administrative remedies. Pl. Plaintiff was an inmate, it appears, at Wyoming Mem. Opp. at 33; Pl. Compl. ¶ 36. Correctional Facility in 2001. Plaintiff's Amended Motion Brought Under Fed.R.Civ.P. 60(b), September 29, 2006 FN6. It is unclear which denial, exactly, Plaintiff ("Pl.Compl.") at 4.FN4 In September 2001, according to refers to.

Plaintiff, he was transferred to a work release facility, apparently Lincoln Correctional Facility, and approved for FN7. Plaintiff avers, however, that he "did not the Binding Together vocational training work release possess or understand the new technology skills program. See generally Pl. Compl. ¶ 7-8. Plaintiff was due to a lengthy period of incarceration." Pl. "learning a series of computer programs and document Compl. ¶ 27. Additionally, Plaintiff stated that lithographics." Id. at 4. Plaintiff began the work release the hours of 10 a.m. to 4 p.m. was not an program on October 16, 2001. Pl. Compl. ¶ 7. He alleges "adequate time frame ... to research legal issues he was issued a "continuous contractual agreement to and draft up motions," as the law books were participate" in that program. Pl. Compl. ¶ 10. "very different compared to the books [Plaintiff]

FN4. This "Amended Motion" serves as is used to looking at ..." Pl. Compl. ¶ 27. Plaintiff's currently operative complaint.

On March 5, 2002, it appears Plaintiff was terminated

On October 9, 2001, the Appellate Division, Second from the Binding Together program due, according to Department affirmed Plaintiff's criminal conviction. Pl. Plaintiff, "to being sick." Pl. Compl. ¶ 7. On March 6, Compl. ¶ 9; see also People v. Dicks, 287 A.D.2d 517 2002, Plaintiff returned to the work release facility. (N.Y.App.Div.2001). On November 13, 2001, according Plaintiff spoke to his counselor, Donna MacDonald, and to Plaintiff, his post-conviction motion was denied by the parole officer, Brewington, and was placed in the Special trial court. Pl. Compl. ¶ 11. Around this time, Plaintiff Housing Unit after MacDonald allegedly became "very alleges that he advised his corrections counselor, Donna unruly." Pl. Compl. ¶¶ 17-18. Plaintiff alleges that he was research in challenging his criminal conviction, not allowed access to "pen and paper to challenge as long as [Plaintiff] was able to keep up with the anything." Id . at ¶ 7. [Binding Together] work ..." Pl. Mem. Opp. at 5.

*2 On March 13, 2002, a hearing was held before the FN10. Plaintiff avers that at one time, he had a Temporary Release Committee. Id. at ¶ 18. MacDonald copy of the letter, but "like most of his was not present. Id. Plaintiff alleges that he did not receive possessions at Lincoln," it "had been packed a "notice of warning, a conference ... or any other ways away by other people." Pl. Compl. ¶ 23. [sic] that a reasonable person would have to be notified in writing." Pl. Opp. at 9. Plaintiff generally avers that "no Plaintiff also alleges that during their conversation, one ever inquired about any written documents ... from Ms. MacDonald yelled at him that "no church pass will be Binding Together." Pl. Opp. at 13. After the hearing, given" to Plaintiff. Pl. Compl. ¶ 22. Plaintiff states that he Plaintiff was placed on 90 days' probation without is of the Pentecostal faith. Plaintiff's Opposition to Motion furloughs. Pl. Compl. ¶¶ 18-19.FN8 to Dismiss ("Pl.Opp.") at 8. Plaintiff generally states that

25 to 30 individuals at Lincoln were of the Pentecostal FN8. It appears, from a Department of faith, but Lincoln did not provide Pentecostal services to Correctional Services computerized summary of those inmates. Pl. Opp. at 23. Plaintiff alleges that that hearing, that Superintendent Joseph previously, he had been allowed to attend worship and Williams gave final approval to the Temporary counseling services at "Bethel Gospel." Pl. Compl. ¶ 14. Release Committee's decision. Defendants' "From March [to] April 2002," according to Plaintiff, he Motion to Dismiss, Ex. A. Plaintiff's arguments "spoke about a various amount of matters," including a are generally consistent with this apparent fact. "request for a continuous church pass," and specifically alleged that he "asked for a church pass for Sunday It is not clear whether I may judicially notice Worship Service." Id. at ¶ 26, 28. Plaintiff alleges that and consider that computerized summary on a "[n]o response was given." Id. at ¶ 28. Plaintiff states that motion to dismiss. Defendants have not asked around this time, there was no [Inmate Grievance Review me to judicially notice it, nor provided Committee] "IGRC" box, or "IGRC Office," at Lincoln argument in support of that proposition. I will through which he could file an administrative grievance. accordingly refrain from considering that Id. at ¶ 22. summary on this motion.

On April 18, 2002, Plaintiff (according to him) was Plaintiff alleges that (apparently) around this time, he "suspended from school" (presumably the Binding returned to the work release facility, and Ms. MacDonald Together work release program). Pl. Compl. ¶ 29. He berated him in front of her colleagues. Pl. Compl. ¶ 22. claims that "no documents were handed to him ... on this Plaintiff avers that he requested, at this point, "time to get matter." Id. When Plaintiff returned to the work release his criminal appeal done." FN9 Id. Plaintiff also avers that facility, no one was present. Id. at ¶ 30. The next day, he submitted a letter around this time in which he April 19, Plaintiff went to Binding Together to speak to requested to "handle research matters for his legal the director, Janet Chow, who was not present. Id. at ¶ 31. obligations." FN10 Pl. Compl. ¶ 24. Plaintiff generally avers Plaintiff was told by another Binding Together counselor that Lincoln Correctional Facility "did not have a law to "go home." Id. Plaintiff then attended a "loved one's library to help aid in the assistance of pending litigation at funeral." Id. [this] time." Pl. Compl. at 15.

Subsequently, upon his return to the work releaseFN9.

According to Plaintiff, "several months facility, Plaintiff alleges he was placed in the Special later," a Binding Together counselor did indeed Housing Unit "void of any explanation or documentation," give him permission to "address conducting because his parole officer, Brewington, had "placed [it] in the computer." Pl. Compl. at ¶ 33.FN11 The Temporary Release Committee, which according to Plaintiff, Plaintiff states that while at Riverview Correctional consisted of Chairperson Joan Taylor, Parole Officer Facility, he did receive access to the law library and filed Carrington, and Special Housing Unit Officer Fair, held a "several grievances in regards to harassment and hearing on April 24, 2002 regarding whether Plaintiff was unnecessary searches and the damage of property "out of bounds." Pl. Compl. ¶ 34. Plaintiff avers that "no unnecessarily." Pl. Compl. ¶ 13. one ever discussed any factors of what led up to the suspension and how long it is supposed to last." Pl. Mem. B. Procedural History Opp. at 18. Plaintiff avers that there was "no substantial proof that Plaintiff traveled out of the state ..." Pl. Mem. Plaintiff filed his first complaint in this matter on Opp. at 19. September 22, 2003, before the Honorable Chief Judge

Michael Mukasey. Plaintiff subsequently (or concurrently)

FN11. Plaintiff also alleges that when he was wrote to the Court to voluntarily dismiss the case. On placed in the SHU, "his property was packed by September 25, 2003, Judge Mukasey granted Plaintiff's someone else ... [m]inus some items." Pl. Compl. request. at ¶ 33. On October 20, 2003, Plaintiff appealed the voluntary dismissal to the Second Circuit. On April 19, 2005, the *3 After that hearing, which Plaintiff avers was Second Circuit remanded Plaintiff's action to the district recorded on tape, the committee unanimously voted to court. On May 25, 2005, the district court reopened the remove Plaintiff from work release.FN12 Pl. Compl. ¶ 34. action and directed Plaintiff to submit an amended motion

Plaintiff was subsequently transferred to Riverview pursuant to Fed.R.Civ.P. 60(b). On December 13, 2005, Correctional Facility. Id. at ¶ 35. following a request for extension of time, the district court granted Plaintiff's Rule 60(b) motion and directed Plaintiff FN12. A copy of a Department of Correctional to submit an amended complaint. On February 15, 2006, Services computerized summary of that hearing Plaintiff submitted an amended complaint. On April 12, is appended to Defendant's Motion to Dismiss as 2006, Plaintiff's action was transferred from Judge Exhibit B. It appears, from reviewing that Mukasey to this Court. On September 19, 2006, Plaintiff summary, that Deputy Superintendent Maria amended his complaint again. On September 29, 2006, Tirone gave final approval to the Temporary subsequent to Defendants' motion to dismiss and pursuant Release Committee's decision. Plaintiff's to my individual practices, Plaintiff filed the arguments are generally consistent with this now-operative Amended Complaint. On October 31, 2006, apparent fact. I ordered that Plaintiff be allowed no further amendments.

It is not clear whether I may judicially notice C. Plaintiff's Complaint and consider that computerized summary on a motion to dismiss. Defendants have not asked Plaintiff alleges three primary causes of action in his me to judicially notice it, nor provided Complaint. First, Plaintiff alleges that he was denied argument in support of that proposition. I will substantive and procedural due process at the Temporary accordingly refrain from considering that Release Committee hearings-both the initial hearing, after summary on this motion. which he was placed on 90 days' probation, and the second hearing, after which he was removed from the work Plaintiff avers that he was "supposed to go to his release program.

Merit Board" in September 2002, and that he had "all the Secondly, Plaintiff alleges that he was denied access requirements needed for Merit Board eligibility," but that to the courts, in that he lost the opportunity to file a the Merit Board action "never transpired." Pl. Compl. ¶ N.Y.Crim. Proc. Law § 440 petition (and, although it is 41. unclear, perhaps a 28 U.S.C. § 2254 petition as well) because corrections and work release staff did not grant v. Gibson, 355 U.S. 41, 45-46 (1957). Since the plaintiff him authorization to research and prepare the necessary is the non-movant and proceeding pro se, I must construe documents to meet his statutory deadline for those his papers liberally and "interpret them to raise the petitions. strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (internal citation omitted).

Third, Plaintiff alleges that he was deprived of his III. DISCUSSION freedom of religion in that corrections staff denied him a pass to attend church services of his particular faith (in Defendants move to dismiss Plaintiff's complaint, in Plaintiff's case, the Pentecostal faith). whole and in part, on several grounds. I will address each argument in turn. *4 Plaintiff generally seeks $7 million dollars in A. Claims Against State of New York actual, punitive, and nominal damages for each of the above alleged constitutional violations against the various Defendants move to dismiss Plaintiff's claims against defendants. the State of New York. It is well settled that under the Eleventh Amendment, the doctrine of sovereign immunity Regarding his due process claims, Plaintiff also bars actions for retroactive damages against a state or one requests to expunge the records of his work release of its agencies in federal court absent the state's consent to violations. Pl. Compl. at ¶ 14. Plaintiff also requests to be such suit or an express statutory waiver of immunity. See, allowed to complete the necessary training program [and] e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 a certificate of some type of acknowledgement for U.S. 89, 97-103 (1984); Mancuso v. New York State completing the last 60 days of training along with pay." Id. Thruway Auth., 86 F.3d 289, 292 (2d Cir.1996); Santiago Plaintiff additionally requests an order to keep his current v. New York State Dep't of Correctional Services, 945 job with the City of New York while finishing the F.2d 25 (2d Cir.1991) (civil rights actions against necessary training. Id. Department of Correctional Services under 42 U.S.C. §

1983 for retroactive damages prohibited by Eleventh Regarding his "denial of access" claim, Plaintiff also Amendment). The State of New York has not so consented requests a "written stipulation" agreeing that employees of to suit in federal court. Trotman v. Palisades Interstate Lincoln Correctional Facility "hampered the plaintiff from Park Com., 557 F.2d 35, 38-40 (2d Cir.1977). filing timely and necessary appeals to exhaust state Accordingly, Plaintiff's claims against the State of New remedies in appealing [his] criminal conviction." Pl. York for money damages are dismissed.

II. STANDARD OF REVIEW

Compl. at 15. *5 Additionally, Plaintiff's claims for money damages against the individual defendants in their official Defendants, on October 20, 2006, moved to dismiss capacities are dismissed. See Davis v. New York, 316 F.3d Plaintiff's now-operative Amended Complaint. 93, 102 (2d Cir.2002), citing, e.g., Kentucky v. Graham, 473 U.S. 159, 169 (1985) (claim for damages against state officials in their official capacity is considered to be a claim against the State and is therefore barred by the When ruling on a motion to dismiss pursuant to Rule Eleventh Amendment). 12(b)(6) of the Federal Rules of Civil Procedure, the Court must construe all factual allegations in the Plaintiff's claims for prospective injunctive relief are complaint in favor of the non-moving party. See Krimstock not barred by the Eleventh Amendment-provided, v. Kelly, 306 F.3d 40, 47-48 (2d Cir.2002). A motion to however, that Plaintiff brings those claims against a state dismiss should not be granted "unless it appears beyond official, rather than the state itself. See Santiago v. New doubt that the plaintiff can prove no set of facts in support York State Dep't of Correctional Services, 945 F.2d 25, of his claim which would entitle him to relief." Shakur v. 32, citing Ex Parte Young, 209 U.S. 123 (1908). Plaintiff Selsky, 391 F.3d 106, 112 (2d Cir.2004), quoting Conley has named several state officials as Defendants here, and his claims for prospective injunctive relief against those officials are not barred by the Eleventh Amendment.FN13 Defendants argue that Williams and Tirone were Plaintiff's claims for prospective injunctive relief against supervisory officials at Lincoln Correctional Facility, and the named Defendant State of New York are barred by the involved in Plaintiff's alleged constitutional violations Eleventh Amendment, and are dismissed. Cf. Flores v. only to the extent that they approved the findings of the N.Y. State Dep't of Corr. Servs., 2003 U.S. Dist. LEXIS Temporary Release Committee when the Committee 1680, at *9 (S.D.N.Y.2003) (plaintiff cannot seek an placed Plaintiff on probation, and subsequently terminated injunction against DOCS directly). his work release program. Plaintiff does not directly contradict that statement, but avers that "they have to enter FN13. That said, it should be noted that it is their access codes in order for the decision to be unclear whether the state officials Plaintiff has processed." FN14 Pl. Opp. at 15. Such "involvement" does named here as Defendants have the authority to not constitute "personal involvement" in alleged grant the injunctive relief he seeks. constitutional violations under any of the five above-mentioned categories articulated by the Colon Thus, the State of New York is dismissed in its Court. See Scott v. Scully, 1997 U.S. Dist. LEXIS 12966, entirety as a Defendant in this case. at *11 (where Defendant supervisor only affirmed dismissal of plaintiff's grievance, Court granted motion to B. Personal Involvement of Defendants Williams and dismiss based on lack of personal involvement); see also Tirone Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985)

("plaintiff's claim for monetary damages ... requires a

Defendants move to dismiss all remaining claims showing of more than ... linkage in the prison chain of against Superintend ent W illiam s and D eputy command").

Superintendent Tirone (in their personal capacities) for lack of personal involvement in the alleged constitutional FN14. Plaintiff also avers that "final approvals violations against Plaintiff. for contracts were subject to Superintendent

"It is well settled in this Circuit that personal Joseph Williams and or his designee Deputy involvement of defendants in alleged constitutional Superintendent Maria Tirone ..." Pl. Opp. at 15. deprivations is a prerequisite to an award of damages To the extent that Plaintiff alleges Williams' or under § 1983." Colon v. Coughlin, 58 F.3d 865, 873 (2d Tirone's involvement in the approval of his Cir.1995), citing, e.g., Wright v. Smith, 21 F.3d 496, 501 contract to begin work release, such participation (2d Cir.1994); see also Scott v. Scully, 1997 U.S. Dist. is irrelevant, as Plaintiff alleges no constitutional LEXIS 12966, at *9-10 (S.D.N.Y.1997) (Baer, J.). The violations regarding the approval of his work personal involvement of a supervisory defendant may be release contract (as opposed to the Temporary shown by evidence that: (1) the defendant participated Release Committee's later termination of the directly in the alleged constitutional violation, (2) the contract). To the extent that Plaintiff's opposition defendant, after being informed of the violation through a could be construed to state that Williams or report or appeal, failed to remedy the wrong, (3) the Tirone exercised final approval over the defendant created a policy or custom under which Temporary Release Committee's decisions, such unconstitutional practices occurred, or allowed the a statement squares with Defendant's averments continuance of such a policy or custom, (4) the defendant that Williams and Tirone were not personally was grossly negligent in supervising subordinates who involved in the alleged constitutional violations. committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates *6 Additionally, Plaintiff makes no factual allegations by failing to act on information indicating that that Williams or Tirone were personally involved in unconstitutional acts were occurring. Id., citing Williams Plaintiff's alleged violations of "denial of access to the v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). courts" or free exercise of religion.

Salamack, 572 F.2d 393, 395-96 (2d Cir.1978). An inmate

Accordingly, all claims against Williams or Tirone generally must be afforded advance written notice of the are dismissed, and Williams and Tirone are thus dismissed charges against him and a written statement of fact in all capacities as Defendants in this case. findings supporting the disposition and reasons for the disciplinary action taken. Kalwasinski v. Morse, 201 F.3d C. Claims Against Remaining Defendants 103, 108 (2d Cir.1999). Subject to legitimate safety and correctional goals of the institution, an inmate should also Plaintiff's remaining claims are for money damages be permitted to call witnesses and present documentary and injunctive relief against Corrections Counselor Donna evidence. Id., citing Wolff v. McDonnell, 418 U.S. 539, MacDonald, Temporary Release Committee chairperson 563-64 (1974).

Joan Taylor, and "Corrections Officer Fair" in their individual capacities. Regarding the first hearing, Plaintiff claims that he a. Due Process Claims did not receive "notice," a "conference," or "any other ways [sic] that a reasonable person would have to be Plaintiff first alleges that he was denied procedural notified in writing." Pl. Opp. at 9.FN16 Plaintiff also due process at the Temporary Release Committee hearings claimed that "no one ever inquired about any written that ultimately terminated his participation in the work documents ... from Binding Together." Pl. Opp. at 13. release program.FN15 Regarding the second hearing, Plaintiff claims that he was FN15. Defendants argue that Corrections "suspended from school," with "no documents handed to Counselor MacDonald should be dismissed for him," placed in the Special Housing Unit "void of any lack of personal involvement as well, as although explanation or documentation," see Pl. Compl. ¶¶ 29, 33, she issued the initial "out of bounds" charge that and subsequently terminated from work release at a led to Plaintiff's first Temporary Release hearing where "no one ever discussed any factors of what Committee hearing, she was not present at the led up to the suspension and how long it is supposed to hearing itself. last." Pl. Mem. Opp. at 18.

It is not clear what role MacDonald played, or FN16. Plaintiff also claimed that he could not was tasked to play, in providing notice to adequately defend himself at the hearing because Plaintiff of the charges against him. he was denied pen and paper while in the Special Additionally, it is unclear what, if any, Housing Unit. See Pl. Compl. ¶ 7. information (either formal or informal)

MacDonald provided to the Temporary Construing Plaintiff's pro se allegations liberally, Release Committee for its hearings. Plaintiff has stated claims for violations of procedural due Construing the pro se Plaintiff's allegations process-namely, defective notice, the lack of opportunity liberally, and viewing the facts in the most to present evidence, and the lack of a statement of favorable light, I decline to dismiss the due reasons-before both hearings that affected his liberty process claims against MacDonald on this interest in continuing his work release program.FN17 motion to dismiss. Defendants' motion to dismiss those claims is accordingly denied.

A prisoner has a due process right to a hearing before he may be deprived of a liberty interest. See Boddie v. FN17. Defendants also argue that Plaintiff has Schnieder, 105 F.3d 857, 862 (2d Cir.1997). "Prisoners on failed to exhaust his administrative remedies work release have a liberty interest in continued regarding his due process claim. Defendants note participation in such programs." Friedl v. City of New that Plaintiff filed an Article 78 petition in state York, 210 F.3d 79, 84 (2d Cir.2000), citing Kim v. court to challenge his removal from the Hurston, 182 F.3d 113, 117 (2d Cir.1999); Tracy v. temporary release program, but failed to obtain Not Reported in F.Supp.2d, 2007 WL 1462217 (S.D.N.Y.)

(Cite as: 2007 WL 1462217 (S.D.N.Y.))

personal jurisdiction over defendants due to b. "Denial of Access to Courts" Claim defective service. See Dicks v. Williams, 308 A.D.2d 623 (N.Y.App.Div.2003). Strangely, Plaintiff also alleges that he was denied access to the however, Defendants support their exhaustion courts and thus lost the opportunity to file post-conviction argument by citing authority that interprets the motions, or appeals of those motions, because corrections statutory procedures for bringing a habeas and work release staff did not grant him authorization to challenge to a state court conviction. See Picard research and prepare the necessary documents to meet his

v. Connor, 404 U.S. 270, 275 (1971), citing 28 statutory deadlines.

U.S.C. § 2254. At this point in time, I decline to The constitutional right of access to courts entitles dismiss Plaintiff's due process claim for failure to prisoners to either "adequate law libraries or adequate exhaust administrative remedies. assistance from persons trained in the law." Tellier v.

Reish, 1998 U.S.App. LEXIS 24479, at *7-8 (2d *7 Plaintiff also appears to allege a claim for Cir.1998), citing Bounds v. Smith, 430 U.S. 817, 828 violations of substantive due process at the second (1977). However, the Supreme Court has recognized that hearing, which terminated his participation in the work prisoners do not have "an abstract, free-standing right to release program. Specifically, Plaintiff alleges there was a law library or legal assistance." Lewis v. Casey, 518 U.S. "no substantial proof that Plaintiff traveled out of the state 343, 351 (1996). Instead, "meaningful access to the courts ..." Pl. Mem. Opp. at 19. is the touchstone." Id., quoting Bounds, 430 U.S. at 823.

Accordingly, a prisoner must "demonstrate that the alleged

A hearing disposition must be supported by "some shortcomings in the library or legal assistance hindered his evidence." Kalwasinski v. Morse, 201 F.3d 103, 108 (2d efforts to pursue a legal claim." Id. Cir.1999), citing Superintendent v. Hill, 472 U.S. 445, 455 (1985). Plaintiff essentially alleges that there was no Here, Plaintiff has alleged that the facility he was evidence to support the Committee's decision. Although housed in, Lincoln Correctional, did not have a law discovery (most obviously, of the tape of the hearing) and library. Plaintiff additionally alleges that he asked on a subsequent motion for summary judgment might have multiple occasions for time to research the legal issues obviated Plaintiff's claim, Plaintiff, on this motion to relating to his direct appeal and post-conviction motions, dismiss, has stated a claim for a violation of substantive notwithstanding his commitments to the work release due process. Defendants' motion to dismiss Plaintiff's program, and was denied such additional time. Construing substantive due process claim is accordingly denied. Plaintiff's allegations in their most favorable light, Plaintiff alleges that he lost the opportunity to file a post-conviction It is worth noting that discovery, and a subsequent motion, or an appeal of that motion, due to this inability to motion for summary judgment, may have shed more light access legal materials. See Torres v. Viscomi, 2006 U.S. on the merits of Plaintiff's claims. On July 21, 2006, I set Dist. LEXIS 72818, at *9 (D.Conn.2006) ("Inmates must a Scheduling Order which provided for discovery by be afforded access to court to file a direct appeal, a November 15, 2006, and dispositive motions to be filed by petition for writ of habeas corpus or a civil rights action January 30, 2007. It appears that neither Plaintiff nor challenging the denial of a basic constitutional right."), Defendants availed themselves of discovery, or the citing Lewis v. Casey, 518 U.S. at 355. opportunity to make a motion for summary judgment, before those deadlines. *8 Admittedly, Plaintiffs' allegations are seriously undercut by his statements that he was ultimately given Should these claims turn out to be true, the state permission to attend the New York Public Library to Department of Corrections best rethink their procedures in conduct legal research, and that Binding Together this area so that what appears at this pleading stage to be acquiesced to or gave such permission so long as he a flagrant abuse of constitutional rights is not repeated. completed his work release commitments. See Tellier v. Reish, 1998 U.S.App. LEXIS 24479, at *7-8 (affirming grant of summary judgment to defendants on "denial of the pro se Plaintiff appealed that voluntary access" claim where plaintiff was allowed access to library dismissal to the Second Circuit, who remanded for eleven hours a week). The timing of when exactly Plaintiff's action to this Court on April 19, Plaintiff was given permission to conduct research, as it 2005. In accordance with this Court's orders relates to Plaintiff's statutory deadlines, is unclear. These, (and extensions of time), Plaintiff filed his however, are genuine issues of material fact, better left for Amended Complaint on February 15, a motion for summary judgment (which Defendants did 2006-technically outside the three-year statute not bring). of limitations.

Defendants' motion to dismiss Plaintiff's denial of "A layman representing himself ... is entitled access claim is accordingly denied.FN18 to a certain liberality with respect to p roced ural req uirements." M o u n t v. FN18. Defendants also argue that Plaintiff has Book-of-the-Month Club, Inc., 555 F.2d 1108, not exhausted his administrative remedies before 1112 (2d Cir.1977). Accordingly, I decline to he brought his "denial of access" and religious dismiss Plaintiff's claims as barred by the freedom claims, as required by the Prisoner statute of limitations here.

Litigation Reform Act for actions regarding prison conditions. See Neal v. Goord, 267 F.3d c. Religious Freedom Claim 116, 122 (2d Cir.2001), citing 42 U.S.C. § 1997e(a) ("no action shall be brought ... until Plaintiff alleges a violation of his constitutional right such administrative remedies as are available are to free exercise of religion because corrections staff exhausted"). Plaintiff, however, alleges that the denied him a pass to attend church services of the Lincoln facility had no Inmate Grievance Review Pentecostal faith.

Committee box, through which he could pursue "Prisoners have long been understood to retain some his administrative remedies. See Pl. Compl. ¶¶ measure of the constitutional protection afforded by the 21-22. Plaintiff also alleges that he filed First Amendment's Free Exercise Clause." Ford v. grievances while at Riverside, although it is McGinnis, 352 F.3d 582, 588 (2d Cir.2003). To state a unclear whether he did so, or which violations he claim, the prisoner must "show at the threshold that the alleged at that time. Pl. Compl. ¶ 13. disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, Accordingly, construing Plaintiff's complaint 274-75 (2d Cir.2006), citing Ford v. McGinnis, 352 F.3d in the most favorable light, I decline at this at 591. The defendants then bear the "relatively limited" time to dismiss Plaintiff's claims for failure to burden of identifying the legitimate penological interests exhaust administrative remedies. that justify the impinging conduct. Salahuddin v. Goord, 467 F.3d at 275, citing Ford v. McGinnis at 595. "The Defendants argue as well that Plaintiff's burden remains with the prisoner to 'show that these "denial of access" and religious freedom [articulated] concerns were irrational.' " Id., citing Ford claims are barred by the statute of limitations. v. McGinnis at 595; see also Ford at 588 (prisoners' free Plaintiff's claims appear to have arisen in exercise claims are judged under a "reasonableness" test March and April of 2002. Plaintiff filed his less restrictive than that ordinarily applied to alleged original complaint in this Court on September constitutional violations), citing Farid v. Smith, 850 F.2d 22, 2003, within the three-year statute of 917, 925 (2d Cir.1988); O'Lone v. Estate of Shabazz, 482 limitations for § 1983 claims. See Owens v. U.S. 342, 349 (1987).

Okure, 488 U.S. 235 (1989). Plaintiff subsequently voluntarily dismissed his original Here, Plaintiff alleges that he was denied the complaint. Rather than refiling his complaint, opportunity to attend church services.FN19 There appears to be no reason to question that Plaintiff's professed Defendants' motion to dismiss Plaintiff's state law claim, Pentacostal beliefs are "sincerely held." Plaintiff has for the reasons outlined above, is denied as well.FN21 alleged a substantial burden upon those beliefs. See Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.1989) FN20. It should be noted that Plaintiff did not ("[P]risoners should be afforded every reasonable bring a claim pursuant to the Religious Land Use opportunity to attend religious services, whenever and Institutionalized Persons Act of 2000 possible.") True, Plaintiff was denied the "church pass" in ("RLUIPA"), which creates a separate, private part, it appears, due to his own disciplinary violation. right of action for free exercise claims that However, it is "error to assume that prison officials were requires the government to show a "compelling justified in limiting [plaintiff's] free exercise rights simply governmental interest." See Salahuddin v. because [plaintiff] was in disciplinary confinement." Id. at Goord, 467 F.3d at 273-74, citing 42 U.S.C. § 570. 2000cc-1 et. seq. Some courts, even where plaintiff did not specifically allege the statutory FN19. Plaintiff also appears to contest the RLUIPA claim, have allowed liberal leave to facility's failure to provide services particularly plaintiff to amend his complaint to include it. See designed for the Pentacostal faith. "[I]f those ... McEachin v. McGuinnis, 357 F.3d 197, 199 n. 2, individuals in the facility were Muslim ... or [if] 205 (2d Cir.2004) (noting that "the failure in a plaintiff had been Muslim, then Lincoln complaint to cite a statute, or to cite the correct Correctional Facility would have made ... an one, in no way affects the merits of a claim," and Imam come for Jumah Services." Pl. Opp. at 23. instructing the district court on remand to consider allowing plaintiff to amend his *9 It is entirely possible that after an examination of complaint and consider appointing counsel to the facts, Defendants may provide a "legitimate plaintiff to address the resultant statutory legal penological interest" for Defendants' actions that rebuts issues). Here, where Plaintiff has now filed three Plaintiff's claim. Such a determination, however, is better amendments to his complaint in this Court, I left to a motion for summary judgment (which Defendants decline at this late juncture to grant Plaintiff did not bring here). See Salahuddin v. Goord, 467 F.3d at leave to amend his complaint to add the statutory 277, citing Young v. Coughlin, 866 F.2d at 570 ("the claim. district court should not have dismissed appellant's First Amendment claim without requiring prison officials to FN21. It should be noted, although the parties establish the basis for the First Amendment restrictions did not brief the issue, that because Plaintiff's imposed."). Defendants' motion to dismiss Plaintiff's First state law claim against DOCS officials must be Amendment claim for violation of free exercise of religion brought in the New York Court of Claims, it is is denied. unclear if I may exercise pendent jurisdiction over Plaintiff's claim. See Cancel v. Mazzuca, Plaintiff also brings a state law claim pursuant to N.Y. 205 F.Supp.2d 128, 138 (S.D.N.Y.2002) Correct. Law. § 610(3), which provides, in part, that (declining to exercise pendent jurisdiction over inmates "shall be allowed such religious services and N.Y. Correct. Law § 610 claim), citing N.Y. spiritual advice and spiritual ministration from some Correct. Law § 24(2) ("Any claim for damages recognized clergyman of the denomination or church arising out of any act done or the failure to which said inmates may respectively prefer ..." FN20 N .Y. perform any act within the scope of the Correct. Law. § 610(3) (2007); see, e.g., Cancel v. Goord, employment and in the discharge of the duties of 278 A.D.2d 321, 322 (N.Y.App.Div.2000); see also any officer or employee of [DOCS] shall be Salahuddin v. Mead, 2000 U.S. Dist. LEXIS 3932, at brought and maintained in the court of claims as *10-11 (S.D.N.Y.2000) (noting that state free exercise a claim against the state.") claims are considered in similar manner to federal claims). Not Reported in F.Supp.2d, 2007 WL 1462217 (S.D.N.Y.)

(Cite as: 2007 WL 1462217 (S.D.N.Y.))

D. Qualified Immunity see McKenna v.. Wright at *26, I accordingly decline at this time to dismiss the remaining claims against Defendants also move to dismiss Plaintiff's Defendants on the grounds of qualified immunity. above-mentioned remaining claims against MacDonald, Taylor, and Fair in their individual capacities for alleged IV. CONCLUSION violations of a) due process, b) denial of access to the courts, and c) free exercise of religion on the grounds that For the foregoing reasons, Defendants' motion to Defendants are shielded by qualified immunity. dismiss Plaintiff's claims is granted in part and denied in "The doctrine of qualified immunity protects state part. actors sued in their individual capacity from suits for Trial of Plaintiff's remaining claims against monetary damages where 'their conduct does not violate MacDonald, Taylor, and Fair in their individual capacities clearly established statutory or constitutional rights of for alleged violations of a) due process, b) denial of access which a reasonable person would have known.' " to the courts, and c) free exercise of religion will Baskerville v. Blot, 224 F.Supp.2d 723, 737 (S.D.N commence on July 16, 2007, in accordance with prior .Y.2002), quoting Harlow v. Fitzgerald, 457 U.S. 800, orders of this Court. 818, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982); see generally McKenna v. Wright, 2004 U.S. Dist. LEXIS The Clerk of the Court is directed to close this motion 725, at *24-25 (S.D.N.Y.2004) (Baer, J.). "Even where a and remove it from my docket. plaintiff's federal rights are well-established, qualified immunity is still available to an official if it was SO ORDERED. 'objectively reasonable for the public official to believe that his acts did not violate those rights." Woods v. Goord, S.D.N.Y.,2007. 2002 U.S. Dist. LEXIS 7157, at *35 (S.D.N.Y.2002), quoting Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d. Dicks v. Binding Together, Inc. Cir.1991). Therefore, state officials are shielded by Not Reported in F.Supp.2d, 2007 WL 1462217 qualified immunity if either "(a) the defendant's action did (S.D.N.Y.) not violate clearly established law, or (b) it was END OF DOCUMENT objectively reasonable for the defendant to believe that his action did not violate such law." Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.2001), quoting Salim v. Proulx, 93 F.3d 86, 89 (2d Cir.1996).

*10 For the same reasons outlined above that support denial of Defendants' motion to dismiss, I decline to find at this time, as a matter of law, that Defendants' actions did not violate "clearly established law." Cf. McKenna v. Wright, 2004 U.S. Dist. LEXIS 725, at *26-27. Regarding the "objective reasonableness" of Defendants' actions, while "the use of an 'objective reasonableness' standard permits qualified immunity claims to be decided as a matter of law," see Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir.1992), the determination "usually depends on the facts of the case ... making dismissal at the pleading stage inappropriate." See Woods, 2002 U.S. Dist. LEXIS 7157, at *35 (citations omitted). Construing the allegations in the pro se Plaintiff's complaint in their most favorable light,


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