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Selah v. Fischer

United States District Court, Second Circuit

October 11, 2013

SELAM SELAH, Plaintiff,
v.
BRIAN FISCHER et al., Defendants.

Selam Selah, Pro Se, 08-B-2266, Clinton Correctional Facility, Dannemora, NY, for the Plaintiff.

CHRISTOPHER W. HALL, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, Albany, NY, for the Defendants.

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, Chief District Judge.

I. Introduction

Plaintiff pro se Selam Selah commenced this action against defendants Brian Fischer, Abuna Foxe, Fr. Mantzouris, Morris, Bellamy, Taylor, Deacon Killian, and the New York State Department of Correctional Services (DOCCS), pursuant to 42 U.S.C. ยง 1983, alleging deprivation of his First Amendment rights under the United States Constitution and his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA).[1] (Am. Compl., Dkt. No. 84.)[2] Defendants moved for the entry of judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).[3]

In a Report-Recommendation and Order (R&R) filed August 2, 2013, Magistrate Judge David E. Peebles recommended that defendants' motion be denied with respect to Fischer, Morris, Foxe, Taylor, and Killian, and granted with respect to Mantzouris, Bellamy, and Leonard.[4] (Dkt. No. 165.)[5] Thereafter, defendants and Selah filed timely objections. (Dkt. Nos. 168, 173, 174, 175.)[6] For the reasons that follow, the R&R is adopted in its entirety.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-CV-484, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, only vague or general objections are filed, or a party resubmits the same papers and arguments already considered by the magistrate judge, this court reviews the findings and recommendations of the magistrate judge for clear error.[7] See id. at *4-5.

III. Discussion

The court addresses defendants' objections and Selah's Objections in turn.

A. Defendants' Objections

Defendants have filed specific objections, thus the court will conduct a de novo review. All of defendants' objections are based on personal involvement. First, defendants argue that Fischer, Foxe, and Morris were not personally involved because Selah failed to identify the discriminatory religious policies, or specify the misconduct of each defendant, the date or approximate date of the misconduct, where the misconduct occurred, or the nexus between the misconduct and Selah's alleged injuries. (Dkt. No. 168 at 1-3.) Second, defendants argue that Killian was not personally involved because he "did not make any decisions himself regarding [Selah's] requests for religious accommodations, " and, instead, "acted as a messenger for [Selah's] religious requests." ( Id. at 4.) Third, defendants argue that Taylor was not personally involved by virtue of his receipt of, and failure to respond to, Selah's grievances and that Judge Peebles erred in relying on Grullon v. City of New Haven, 720 F.3d 133 (2d Cir. 2013). ( Id. at 5-6.)

"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 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)).[8] Thus, supervisory officials may not be held liable merely because they held a position of authority. Id. However, supervisory personnel may be considered "personally involved" if:

(1) [T]he defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate ...

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