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Bernard Thomas v. William Connolly

August 30, 2012


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:




DOC #:


Pro se plaintiff Bernard Thomas brings this 42 U.S.C. § 1983 ("Section 1983") action against eight employees of the Fishkill Correctional Facility ("Fishkill") and an official of the New York State Department of Correctional Services ("DOCS"). Thomas sues Defendants in their individual and official capacities, asserting that certain Defendants (1) denied him his First Amendment right to practice his religion in connection with the observation of two Muslim holidays while housed at Fishkill; (2) denied him his due-process rights in connection with a disciplinary proceeding that resulted in his incarceration in the Special Housing Unit ("SHU") at another State correctional facility; and (3) violated his Eighth Amendment rights by ordering his transfer from Fishkill to Upstate Correctional Facility in contravention of a medical directive barring his exposure to extended travel. Plaintiff seeks compensatory and punitive damages from all of the defendants.

Defendants have moved for summary judgment on each of Plaintiff's four claims. Plaintiff has submitted extensive opposition papers. On April 9, 2012, Magistrate Judge Michael H. Dolinger issued a Report and Recommendation ("R&R") recommending that Defendants' motion for summary judgment be granted. The Court has reviewed the R&R and Plaintiff's objections. For the reasons that follow, the Court adopts Magistrate Judge Dolinger's Report and Recommendation in its entirety. The Defendants' motion for summary judgment is GRANTED.


I. Facts*fn1

Plaintiff asserts four separate claims, each arising from a discrete set of events summarized in turn.

A. The Zakat-ul-Fitr Free Exercise Claim

Thomas is an observant Muslim. At the conclusion of Ramadan--a Muslim holiday involving 40 days of fasting and prayer--devout Muslims are to participate in a day of prayer and gift-giving known as "Eid-ul-Fitr." The gift-giving rite is known as "Zakat-ul-Fitr" or "Sadaqatul-Fitr." This obligation involves an act of charity, typically the provision of money or (more traditionally) food to someone in need, as a means of purifying the giver. According to the Imam of Fishkill, the performance of this act of charity is permissible either on the day of Eid or prior to it. In 2007 the Eid occurred on October 13. Plaintiff alleges that the Zakat-ul-Fitr ceremony in 2007 was improperly held after Ramadan. He directs his claim at Defendants William Connolly, the facility Superintendent, and Charles Kelly, the Deputy Superintendent of Security.

The Imam of Fishkill believed, in a prison setting, the fulfillment of the Zakat-ul-Fitr obligation would be more readily achieved through the donation of food. The Imam sent a memorandum to the Assistant Deputy Superintendent for Programs, Mr. George Jessen, discussing how to provide an opportunity for the Ramadan ceremonies and the fulfillment of the obligation for Zakat-ul-Fitr. In that memorandum, the Imam anticipated that the Eid prayer would be scheduled for October 11 or 12, one or two days prior to the date of the Eid.

Deputy Superintendent of Security Charles Kelly initially addressed the Zakat-ul-Fitr arrangements. Kelly opted for an exchange of money rather than the distribution of food. Kelly's decision was based on prison policy which did not permit inmates to carry food items throughout the facility and out of concern that food exchanges could lead to fights or other security threats.*fn2

Plaintiff filed a grievance prior to the Eid ceremonies, asking that he be allowed to give the Zakat-ul-Fitr. That grievance was filed on October 10, 2007, three days before Eid. In the meantime, Superintendent Connolly modified Deputy Kelly's decision to permit the use of food as a means of fulfilling the charitable acts required of Muslim inmates. He did so in part because the Imam had agreed to undertake the food distribution, thus alleviating Kelly's concern that the process could lead to security threats within the prison. Connolly also scheduled the Zakat-ulFitr to take place on October 12, one day before Eid. That distribution did in fact take place as scheduled, with the Imam presiding.

Superintendent Connolly subsequently denied Plaintiff's grievance on November 1, 2007, because the charitable offerings had in fact already been distributed. Plaintiff appealed that denial, complaining that the distribution was late, but since Eid occurred on October 13 that year, there was nothing in the record to suggest that this complaint had any basis.

B. The Tenth-Day-of-Muharram Free Exercise Claim

Plaintiff's second claim concerns another alleged denial of the opportunity to participate in a required religious observance, this time on the first and last days of the Ten Days of Muharram Festival, on January 10 and 19, 2008. This claim was made against the following Defendants: Deputy Superintendent Kelly; Assistant Deputy Superintendent of Programs Fedele Fiore; Deputy Superintendent for Programs Roland Larkin; and Corrections Officer Thomas Rough.

The celebration of Muharram involves ten days of fasting, with the final day -- involving ceremonies and a breaking of the fast -- viewed as the most important. The procedure for arranging religious observances for Muslim inmates starts with the Imam, who prepares requests for prisoner releases, scheduling and other logistical matters that are needed to ensure that participants are able to carry out their religious obligations. These logistical matters include preparing a list of inmates who participate and are to be called out from their regular locations to attend services, and transmitting the approved list of inmates to the callout office to include on the master "callout list." On January 3, 2008, the Imam wrote to Larkin by memorandum, requesting approval for the Ten Days of Muharram Festival. That same day, Larkin received a Special Events Final Coordination and Approval Package from the Imam. This submission included a list of inmate participants, approved meals, and program specifics. Although the Imam's memorandum had listed the pertinent dates as running from January 10 through 19, the packet listed the end date as January 18.

On January 10 there was no callout due to what defendants describe as a scheduling confusion. It is undisputed, however, that none of the named Defendants was responsible for the submission of the callout list to the facility's callout office. There is also no dispute that callouts were properly made for the Muharram services on January 11 through January 18, but it is conceded that the events of January 19 did not go according to plan.

The Imam did not correct the dating error from the original packet until as late as January 18. The Imam sent defendant Fiore a memorandum mentioning that January 19 was to be the last day of the Muharram Festival. Fiore approved this request, but it apparently remained the Imam's obligation to submit the list of participating inmates to the callout office.

The ten Muslim inmates who had signed up for the ceremony were not included on the prison's callout list for January 19, presumably because their names had not been sent in time to the callout office. The record does not explicitly disclose why the Muharram prisoner list for that date was not timely sent to the callout office or who was responsible for this error, though it is undisputed that the four Defendants named in this claim were not involved in the transmission of the list to the callout office, since it was the Imam's role to communicate with that office. Officer Rough, who was assigned to the prison mosque to coordinate these events, reports that he received notice late on January 18 that there was to be a last-minute callout the next day for inmates eligible to participate in the Muharram Festival. In anticipation of a potential problem, Rough had the prison radio make an announcement to officers to the effect that a Muslim festival was to occur and that officers should release the participating inmates. He also began telephoning various housing units. Rough was aware that the participating inmates were to receive a special meal on the last day of the festival. He called the mess hall before 10:00 a.m. to ask that mess trays be sent to the mosque. The mess hall personnel advised him that because of a lack of advance notice, they would only be able to send regular food.

Despite Rough's efforts, not all listed inmates were released from their usual assignments. While Officer Rough waited at the mosque, one inmate who had signed up for Muharram appeared and reported that no callout for the event had occurred in his unit. That prisoner then left because he had a visit and chose to meet that visitor rather than wait to attend the last day of Muharram. Shortly thereafter, two additional inmates appeared for the service but left when they learned that the special meal that had been requested by the Imam would not be served. At around 10:00 a.m., Plaintiff arrived. When advised of the situation, he became angry and left without waiting for the service.

C. Due-Process in a Disciplinary Proceeding

On March 17, 2008, Plaintiff was removed from the general population at Fishkill and placed in solitary confinement and punitive segregation in the SHU pending an investigation of possible disciplinary violations. In the Misbehavior Report issued on March 20, 2008, the Inspector General's Office recounts that a DOCS Muslim chaplain named Abdul Mubdi had advised that on March 13, 2008, while in a DOCS Harlem office, he received a telephone call from someone purporting to be "Abdul Jabbar," but that he recognized the voice of the caller as that of the Plaintiff.

Mubdi knew that Thomas was confined at Fishkill and that the phone number on his readout was not a prison number. He therefore wrote down the number and ended the call. According to the investigation report, the call had been made through a third-party phone, and Plaintiff's phone log confirmed that he had placed a telephone call at the time that the chaplain received the call in question. Based on these events, the DOCS investigator proffered four charges: (1) communicating by phone with a DOCS employee without authorization, (2) making a third-party phone call, (3) making false statements, and (4) impersonation.

Under DOCS regulations, a disciplinary hearing must be conducted within seven days of the inmate's pre-hearing confinement, unless an extension is obtained. N.Y. Comp. Codes R. & Regs. tit. 7, ยง 251-5.1(a). The prison staff applied on March 21, 2008 for an adjournment of the hearing, which was granted. The hearing took place on the adjourned date of March 25, with Plaintiff pleading not guilty. At the conclusion of the hearing, the hearing officer, Defendant Stephen Roberts, found Plaintiff guilty ...

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