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Walker v. Artus

United States District Court, N.D. New York

February 21, 2014

TYRONE WALKER, Plaintiff,
v.
DALE ARTUS, Superintendent, Clinton Correctional Facility; et al., Defendants

Page 19

TYRONE WALKER, Plaintiff, Pro se, Dannemora, New York.

For ADELE M. TAYLOR-SCOTT, AAG, OF COUNSEL, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, New York.

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MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, U.S. District Judge.

I. INTRODUCTION

Plaintiff pro se Tyrone Walker, an inmate currently in the custody of the New York State Department of Corrections and Community Supervision (" DOCCS" ), commenced this action pursuant to 42 U.S.C. § 1983 alleging that Defendants deprived him of his civil rights in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (" RLUIPA" ), 42 U.S.C. § 2000cc-1(a), and the Free Exercise Clause of the First Amendment to the United Stated Constitution. See Dkt. No. 1. On January 18, 2013, Defendants filed a motion for summary judgment. See Dkt. No. 57-8.

Currently before the Court are Plaintiff's objections to Magistrate Judge Peebles' Report and Recommendation, in which he recommended that Defendants' motion for summary judgment be granted and that this case be dismissed. See Dkt. No. 64 at 2.

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II. BACKGROUND[1]

Plaintiff is a prison inmate entrusted to the care and custody of the New York State DOCCS. See Dkt. No. 1 at ¶ 1. At all times relevant to this action, he was confined in a Special Housing Unit (" SHU" ) at Clinton Correctional Facility (" Clinton C.F." ), which is located in Dannemora, New York.[2] See id .

Plaintiff is one of over 300 Muslim inmates at Clinton C.F. See Dkt. No. 63-2 at 31. Jumu'ah is an hour-long Muslim congregate service held on Fridays, and includes aspects of sermon and prayer. See id. at 65, 67. Jumu'ah services are provided for Muslim inmates confined at Clinton C.F. on Fridays between 1:00 and 2:00 p.m. See id. at 67. According to Imam Assallami Fadle, the Muslim Chaplin assigned to Clinton C.F., although Muslim men are expected to attend Jumu'ah services if they are able to do so, " [i]t is not mandatory for women, or for men who are sick, or for men who are not free to attend service." See id. at 54, 66.

Pursuant to DOCCS Directive 4933, inmates confined in a SHU cell are prohibited from participating in congregate religious services. 7 N.Y.C.R.R. § 304.9(d). Joseph F. Bellnier, the DOCCS Deputy Commissioner for Correctional Facilities, states that " the possibility of disruption to the smooth operation of the facility is increased" any time inmates congregate.[3] See Dkt. No. 57-4 at ¶ 6. For that reason, " SHU inmates do not attend congregate religious services. Instead, religious counseling by a member of the facility's ministerial services staff [is] provided upon the written request of an inmate, and the facility senior chaplain or a designated member of the ministerial services staff is required to make a minimum of one round per week in the SHU." [4] Id. at ¶ 12 (citing 7 N.Y.C.R.R. § 304.9). Muslim SHU inmates are also allowed to retain possession of a Quran, Kufi, and a prayer rug; they are permitted to pray demonstratively within their cells; they are permitted to order religious periodicals unless they are prohibited for security purposes; and they are provided an alternative diet in conformity with their religious dietary restrictions, and with accommodations made during feast and fast days. See Dkt. No. 57-4 at ¶ 24; see also Dkt. No. 57-5 at ¶ ¶ 9-11. Those religious accommodations are designed to provide an " alternative means for Muslim inmates confined to SHU to practice their religion without undue risk to the safety, security and the good working order of correctional facilities[.]" See Dkt. No. 57-4 at ¶ 25.

Because of the prohibition against congregation for SHU inmates, Plaintiff requested permission to participate in Jumu'ah by way of closed circuit television from the secured area in the back of his SHU cell. See Dkt. No. 1 at 9-10; see

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also Dkt. No. 57-2 at 82. Notwithstanding the fact that SHU inmates currently do not have access to any television of any sort, Plaintiff proposes that monitors could be installed in each cell's Sally port because they are already equipped with wiring for camera/video surveillance. See Dkt. No. 57-2 at 82-85. More specifically, Plaintiff requests that Muslim inmates in the SHU who have not received a misbehavior report within the prior thirty days be allowed to go into the Sally port to participate in Jumu'ah via closed circuit television. Id. at 85.

In the alternative, Plaintiff requests that Jumu'ah services be broadcast through the audio headphone jack in his SHU cell. See Dkt. No. 1 at 10; see Dkt. No. 57-2 at 87. The broadcast could either be a live feed or pre-recorded. See Dkt. No. 57-2 at 95. According to Plaintiff, by listening to Jumu'ah services on headphones, he could actively participate in the services while still complying with DOCCS' ban on congregating. See Dkt. No. 63-2 at 65.

In an effort to gain the opportunity to participate in Jumu'ah services by way of closed circuit television or audio feed, Plaintiff filed grievances at Clinton C.F. on October 21, 2008, July 1, 2010, and September 21, 2010; sent a complaint letter on July 28, 2008 to Defendant Dale Artus, the superintendent at Clinton C.F. at that time; forwarded a written complaint to DOCCS Commissioner Brian Fischer on August 24, 2008; sent three letters, dated February 10, 2009, February 23, 2009, and March 2, 2009, to Defendant Assallami; and lodged a complaint, dated September 21, 2010, with Defendant Thomas LaValley, the current superintendent at Clinton C.F. See Dkt. No. 1 at 9-10; Complaint Exhs. 16-22 (Dkt. Nos. 1-2, 1-3). Defendant Artus has no personal recollection of having addressed Plaintiff's requests. See Dkt. No. 57-3 at 2. The record nonetheless demonstrates that he delegated a number of Plaintiff's complaints to staff for investigation, and denied Plaintiff's grievance dated July 1, 2010, in light of the absence of a DOCCS Directive providing for closed circuit television for religious services. See id. at 2, 111. On appeal from the superintendent's ruling, DOCCS Central Office Review Committee upheld the denial, finding that Plaintiff had " not presented any compelling reasons to place CCTV in his cell to watch Muslim services." As it relates to Defendant LaValley, he has no personal recollection of receiving or responding to Plaintiff's letter dated September 21, 2010. See Dkt. No. 57-5 at ¶ 4. Defendant Assallami acknowledges that he spoke with Defendant Artus regarding Plaintiff's request to participate in Jumu'ah services by way of closed circuit television, but was informed that it " was not a decision the Superintendent was authorized to make." See Dkt. No. 63-2 at 61; see also Dkt. No. 63-2 at 54.

Defendants have submitted evidence explaining the necessary steps DOCCS would have to take to meet Plaintiff's requests for accommodations. Thomas McQuade, a Facilities Planning Specialist employed by DOCCS, explains that each SHU cell is equipped with three wall jacks, all of which are audio-only capable, and not currently capable of carrying a video feed. See Dkt. No. 57-6 at ¶ 6. Therefore, to accommodate Plaintiff's request that all Jumu'ah services be broadcast over closed circuit television in SHU cells, DOCCS would be required to install the necessary video wiring, as well as televisions. More specifically, as McQuade explains in his declaration,

[t]o do this properly, the existing wiring would need to be modified with a type of cable for in-cell television. Conduit will need to be run to provide the extra jack as well as power to each cell. SHU cells

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are not normally provided user connectable power outlets due to security concerns. New control equipment would also be required, as well as the inmate would need to purchase an approved television from the facility. To accomplish this, the [DOCCS] would need to issue a [New York State Office of General Services] project for each facility through its capital construction program to perform the necessary work. Design fees and construction costs could be several hundred thousand dollars or greater at a facility depending on the size of the SHU.

Id. at ¶ 9.

Regarding Plaintiff's request to permit Muslim SHU inmates to listen to Jumu'ah services through an audio feed, the existing wiring in the SHU does not allow an independent signal to be sent to a particular cell. See id . at ¶ 6. Accordingly, in the event DOCCS satisfied this request, the same religious programming that Plaintiff, as a Muslim, would receive in his cell, would also be provided to all of the other SHU inmates, regardless of their religious beliefs. See id . Moreover, according to McQuade, the audio option is not feasible because DOCCS would be forced to install the equipment in all of the SHUs throughout its facilities, of which there are forty-eight, in an effort to maintain consistency, which is important to maintaining the security and order of facilities. See id . at ¶ ¶ 7-8; see also Dkt. No. 57-4 at ¶ 18 (" Providing benefits to one group of inmates can lead to manipulative behaviors which place a substantial strain on staffing and other resources" ). McQuade explains that " [e]ach [of the forty-eight] facilit[ies] would need to provide wiring equipment to extend from the place of worship an audio signal to the existing radio distribution rack for the SHU. Staff would be required to set up the equipment for the service, as well as operate the program selection to send the audio over one of the three channels." See Dkt. No. 57-6 at ¶ 8. According to McQuade, " [u]nder current financial restraints, [where] there is reduced budget for new infrastructure projects[,] . . . DOCCS does not currently have the means to accommodate Plaintiff's request, or the monetary resources to divert to the type of investment it would take to do so." Id. at ¶ ¶ 4, 10; see also Dkt. No. 57-4 at ¶ ¶ 18-20, 25.

In addition to the financial concerns, there are a number of safety concerns associated with re-wiring the SHU cells to make them capable of permitting SHU inmates to view Jumu'ah services through closed circuit television or listening through an audio feed. For example, because of the behavioral concerns that lead to the placement of inmates in SHU, any video displays or wiring would need to be secured and resistant to tampering to prevent any components from being fashioned into weapons or escape paraphernalia. See Dkt. No. 57-4 at ¶ 15.

A. Magistrate Judge Peebles' Report and Recommendation

In their motion for summary judgment, Defendants presented the following arguments: (1) Defendants did not have sufficient authority or personal involvement to support a claim for damages; (2) there are compelling penological justifications for denying Plaintiff access to congregate religious services; (3) the current policy is the least restrictive means of achieving the State's compelling interests; and (4) Defendants are entitled to qualified immunity. See Dkt. No. 57-8 at 10-21. In a September 27, 2013 Report and Recommendation, Magistrate Judge Peebles recommended that the Court grant Defendants' motion for summary judgment and dismiss Plaintiff's complaint. See Dkt. No. 64 at 28.

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B. Plaintiff's Objections

In his objections to Magistrate Judge Peebles' recommendations, Plaintiff first argues that Magistrate Judge Peebles erred in finding that Defendants' current policy is the least restrictive means of meeting the State's compelling penological goals. See Dkt. No. 71 at 8-9. Specifically, Plaintiff argues that using the least restrictive means require allowing him to participate in Jumu'ah services by listening to the services on a portable audio device (such as a walkman) while in the Sally port behind his cell. See id. at 8. Plaintiff claims that Magistrate Judge Peebles failed to properly address this alternative possibility that would allow Plaintiff to participate in Jumu'ah services. See id. at 9.

Next, Plaintiff argues that Magistrate Judge Peebles erred in finding Plaintiff had an alternative means of exercising his allegedly burdened right. See id. at 10-11. Magistrate Judge Peebles found that there was record evidence demonstrating the numerous accommodations that Muslim inmates at Clinton C.F. receive in order to practice their religion. This includes Muslim inmates being permitted to " (1) maintain a copy of the Quran, a prayer rug, and a Kufi in their cells; (2) engage in demonstrative prayer in their cells; (3) request alternative meals that satisfy Muslim dietary requirements; (4) eat special meals during Islamic feast days; (5) eat meals after sunset during Islamic feast days; and (6) order religious periodicals, provided they are not [on] a prohibited list for security purposes" under DOCCS Directive 4202. See Dkt. No. 64 at 23. The Magistrate Judge also noted that " DOCCS Directive 4933 permits Muslim SHU inmates to meet, one-on-one, with an Imam or religious adviser of their registered religion." Id. Plaintiff does not dispute that any of these accommodations have been available to him with the exception of a weekly, one-on-one meeting with an Imam or religious adviser. See Dkt. No. 71 at 10-12. Plaintiff claims that Defendant Assallami does not make weekly visits to the SHU, and in contrast to Defendant Assallami's statements, another Imam does not make visits when Defendant Assallami is unavailable. See id. at 11. To support this allegation, Plaintiff submitted the SHU log book as Exhibit # 5 in opposition to Defendants' motion for summary judgment. See Dkt. No. 63-2 at 73-89. While the log book shows Defendant Assallami entering the SHU less than twenty times between January 5, 2011 and December 2, 2011, Magistrate Judge Peebles noted that Plaintiff did not provide a full copy of the log as there were a number of large gaps in dates in the exhibit provided. See Dkt. No. 64 at 4-5. Magistrate Judge Peebles also cited Defendant Assallami's statement that another Imam would visit the SHU in place of Defendant Assallami when he was on vacation. See id. at 5. Plaintiff claims that there are gaps in the copy of the log book that he provided because he left out over 300 pages that did not show Defendant Assallami entering the SHU for the reasons of cost and convenience. See Dkt. No. 71 at 14. Plaintiff also claims that, contrary to Defendant Assallami's contentions, another Imam has not visited the SHU when Defendant Assallami is unavailable. See id .

III. DISCUSSION

A. Standard of Review

When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files " [g]eneral or conclusory

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objections or objections which merely recite the same argument [that he presented] to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citation and footnote omitted). After the appropriate review, " the court may accept, reject, or modify, in whole or in part, the findings or recommendation made by the magistrate judge." 28 U.S.C. § 636(b)(1).

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court " cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)-(e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2502, 2513-14, 91 L.Ed.2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment " would derogate the truth-finding functions of the judicial process by substituting convenience for facts" ).

" [I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to " make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). This does not mean, however, that a pro se litigant is excused from following the procedural requirements of summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, at *81 (S.D.N.Y. May 16, 2001)). Specifically, " a pro se party's 'bald assertion,' completely unsupported by evidence is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

B. First Amendment Claim

Plaintiff claims that Magistrate Judge Peebles erred in finding that Defendants' decision to deny Plaintiff access to congregate religious services was reasonable. See Dkt. No. 71 at 11. Specifically, Plaintiff argues that Magistrate Judge Peebles erred in finding that Defendants have a

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legitimate penological interest and that Plaintiff has an alternative means of practicing his religion. See id. at 24. Plaintiff's main contentions are that Magistrate Judge Peebles failed to properly address (1) evidence that Defendant Assallami or a substitute Imam does not visit the SHU weekly; and (2) Plaintiff's request to listen to tape recordings of Jumu'ah services in the Sally port behind his cell. See id. at 8-12.

The United State Supreme Court has held " that a prison inmate retains those First Amendment Rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Included in this First Amendment protection is the right to participate in congregate religious services. See Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). However, this right to participate in congregate religious services is not absolute. Id. Alleged infringements of an inmate's free exercise rights are judged by whether the restriction on the inmate's rights is " reasonable." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003); Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990). This reasonableness test is " 'less restrictive than that ordinarily applied.'" Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006) (quoting O'Lone, 482 U.S. at 348).

A prisoner bringing a free exercise claim has the initial burden of establishing " that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin, 467 F.3d at 275-75. The burden then shifts to the defendants to identify legitimate penological interests which justify the restriction of the plaintiff's free exercise rights. Salahuddin, 467 F.3d at 275. The burden on the defendants in this situation is " relatively limited" and the burden remains on the plaintiff to establish that the identified penological interests are irrational or illegitimate. Id.; Ford, 352 F.3d at 595.

The court must then determine if the challenged regulation or decision is reasonable based on four factors laid out by the United States Supreme Court in Turner v. Safley, 482 U.S. 78, 90-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). See Salahuddin, 467 F.3d at 274 (citation omitted). The four factors are:

[W]hether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; whether prisoners have alternative means of exercising the burdened right; the impact on guards, inmates, and prison resources of accommodating the right; and the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.

Salahuddin, 467 F.3d at 274 (citation and footnote omitted).

As Defendants are not challenging the sincerity of Plaintiff's beliefs, the Court will begin its analysis by considering whether Defendants have satisfied their burden of identifying legitimate penological interests in denying Plaintiff's requests to participate in Jumu'ah services by video or audio means. See Dkt. No. 57-8 at 15. In his report and recommendation, Magistrate Judge Peebles found that the record supported Defendants' arguments that allowing Plaintiff and others in the SHU to participate in Jumu'ah services by audio or video feed would require enhanced security measures required by DOCCS directives,

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would raise concerns that inmates participating in the congregate service could " convey covert messages" to SHU inmates, and would require that the equipment be installed to be tamper-proof so that the inmates would be unable to create weapons from it. See Dkt. No. 64 at 20-21; see also Dkt. No. 57-4 at ¶ ¶ 8-11, 15, 18-23. Magistrate Judge Peebles also found there would be substantial costs involved in granting Plaintiff's requests as DOCCS would be required to accommodate similar requests from inmates housed in all forty-eight SHUs across New York State. See Dkt. No. 64 at 21; see also Dkt. No. 57-4 at ¶ ¶ 18-20; Dkt. No. 57-6 at ¶ ¶ 6-10. The evidence also demonstrated that, because the cells would need to be rewired and new equipment would be needed, " [f]ees and construction costs could be several hundred thousand dollars or greater . . ." See Dkt. No. 57-6 at ¶ 9.

In Plaintiff's objection to the Report and Recommendation, Plaintiff appears to abandon his argument to participate in Jumu'ah services by closed circuit television or by radio transmission through the wall jacks in his cell. See Dkt. No. 71 at 16. Plaintiff instead objects to Magistrate Judge Peebles' decision not to address the alternative suggested during Plaintiff's deposition, that Plaintiff be allowed to participate in Jumu'ah services by listening to the service on a tape recorder in the Sally port behind his cell, asserting that this will alleviate all legitimate penological concerns. See Dkt. No. 71 at 8-10. Contrary to Plaintiff's argument, Magistrate Judge Peebles correctly declined to address this proposed alternative. Plaintiff never alleged that Defendants' failure to allow him to participate in Jumu'ah services by way of a tape recorder with pre-recorded services was in violation of his rights. Plaintiff specifically stated in his complaint that Defendants violated the his free exercise rights as well as RLUIPA by " depriving Plaintiff the opportunity to listen to Jumuah Services on the headphone jack or view it on a closed circuit TV. . . ." See Dkt. No. 1 at 20. There is no mention of the possibility of the alternative Plaintiff is now suggesting. It is well established that " a plaintiff may not use a memorandum of law or similar paper to assert a claim that is not contained in the complaint." Ribis v. Mike Barnard Chevrolet-Cadillac, Inc., 468 F.Supp.2d 489, 495 (W.D.N.Y. 2007) (citing cases).

Plaintiff's claim that the alternative was suggested by the attorney for Defendants is of no consequence, as he is bringing it before the Court for the first time in his objections to the Report and Recommendation. Furthermore, as Magistrate Judge Peebles correctly states, there is no evidence to suggest that Plaintiff has exhausted his administrative remedies as there is nothing showing that Plaintiff ever formally requested to participate in Jumu'ah services by listening to pre-recorded tapes or that Defendants ever denied such requests. See Dkt. No. 64 at 22 n.11.

Further, Magistrate Judge Peebles correctly determined that Plaintiff has an adequate means to exercise his burdened right as DOCCS Directive 4202 establishes several accommodations Muslim SHU inmates receive for their religious beliefs and that the denial of participation in congregate religious services is only one of many traditions that is denied while an inmate is confined in the SHU. See Dkt. No. 64 at 22-23; see also O'Lone, 482 U.S. at 351-52; Vega v. Lantz, No. 04-CV-1215, 2009 WL 3157586, *6-*7 (D. Conn. Sept. 25, 2009).

Plaintiff argues in his objections to the Report and Recommendation that this determination was error because Defendant Assallami has not visited the SHU a minimum

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of once a week as required by 7 N.Y.C.R.R. § 304.9. See Dkt. No. 71 at 10-11. In support of this allegation, Plaintiff provided a copy of portions of the SHU log book, which, according to Defendant Assallami, is the official record of SHU visits. See Dkt. No. 63-2 at 70. While the log book entries provided show that Defendant Assallami visited the SHU less than 20 times during 2011, Magistrate Judge Peebles correctly points out that there are large gaps in the dates of the log book provided by Plaintiff. See id. at 73-89; see also Dkt. No. 64 at 4-5. Due to the missing dates in the log book, there is insufficient evidence in the record to show that Defendant Assallami, or a substitute Imam, did not visit the SHU on a weekly basis as Defendant Assallami has stated. See Dkt. No. 63-2 at 62, 65. Furthermore, even assuming that Plaintiff is correct in his assertion that a religious adviser visited the SHU less than twenty times during the year of 2011, that would not change the fact that Plaintiff received numerous other accommodations to practice his religion as stated above. Even without weekly visits from Defendant Assallami or a substitute Imam, the " alternative means" factor is satisfied in this case. See O'Lone 482 U.S. at 352 (holding that the " alternative means" factor was satisfied because the " respondents are not deprived of all forms of religious exercise, but instead freely observe a number of their religious obligations" ).

Based on the foregoing, the Court finds that Magistrate Judge Peebles correctly determined that Defendants' motion for summary judgment should be granted on Plaintiff's First Amendment claim.

C. RLUIPA Claim

Plaintiff also objects to Magistrate Judge Peebles' finding that Plaintiff's RLUIPA claim should be dismissed and relies on the same arguments as discussed above under the First Amendment analysis.

RLUIPA provides that

[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person --
is in furtherance of a compelling governmental interest; and
is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a). As Magistrate Judge Peebles noted, " 'RLUIPA imposes duties on prison officials that exceed those imposed by the First Amendment.'" See Dkt. No. 64 at 25 (quoting Jova v. Smith, 582 F.3d 410, 415 (2d Cir. 2009)).

The Court finds that Magistrate Judge Peebles was correct in finding that Defendants' actions in this case have met those heightened duties. After determining that Plaintiff's right was substantially burdened, the Magistrate Judge was required to determine whether Defendants had shown that the burden on Plaintiff furthered a compelling governmental interest and whether the means used were the least restrictive way of achieving that interest. Harnett v. Barr, 538 F.Supp.2d 511, 520 (N.D.N.Y. 2008).

Here, as discussed above in the context of Plaintiff's First Amendment claim, Defendants have set forth a great deal of evidence in regard to the security and cost concerns involved with granting Plaintiff's request. See Dkt. No. 64 at 20-21; see also Dkt. No. 57-4 at ¶ ¶ 8-23; Dkt. No. 57-6 at ¶ ¶ 4-10. These substantial safety and cost concerns lead the

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Court to conclude that Defendants have demonstrated a compelling governmental interest.

As to whether the burden placed on Plaintiff is the least restrictive means necessary to serve this compelling interest, it is important to note that Plaintiff's requests were very specific. Plaintiff requested that either a closed circuit television or additional wiring for an audio feed be installed in his cell to allow him to watch and/or listen to Jumu'ah services. Both of these requests gave rise to the compelling security and cost concerns discussed above and Defendants therefore chose to deny the request.[5]

Also as discussed above, while Plaintiff has now abandoned his initial requests and now wishes to listen to pre-recorded services on a tape player, the Magistrate Judge correctly refused to consider this alternative request for relief because it was first placed before the Court in Plaintiff's opposition to Defendants' motion for summary judgment. See Murray v. Palmer, No. 9:03-cv-1010, 2008 WL 2522324, *22 (N.D.N.Y. June 20, 2008) (holding that " a pro se plaintiff's papers in opposition to a motion to dismiss may sometimes be read as effectively amending a pleading (e.g., if the allegations in those papers are consistent with those in the pleading). However, a pro se plaintiff's papers in opposition to a motion for summary judgment may not be so read, in large part due to prejudice that would inure to the defendants through having the pleading changed after discovery has occurred and they have gone through the expense of filing a motion for summary judgment" ) (citing Auguste v. Dept. of Corr., 424 F.Supp.2d 363, 368 (D. Conn. 2006)); see also Alster v. Goord, 745 F.Supp.2d 317, 332 (S.D.N.Y. 2010) (quotation omitted).

Therefore, the Court finds that Magistrate Judge Peebles was correct in determining that Defendants' denial of Plaintiff's requests further a compelling governmental interest and represent the least restrictive means necessary, and that the Court should grant Defendants' motion as to Plaintiff's RLUIPA claim.

IV. CONCLUSION

After careful review of Magistrate Judge Peebles' Report and Recommendation, the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Magistrate Judge Peebles' September 27, 2013 Report and Recommendation is ADOPTED in its entirety; and the Court further

ORDERS that Defendants' motion for summary judgment (Dkt. No. 57) is GRANTED; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.

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REPORT AND RECOMMENDATION

David E. Peebles, U.S. Magistrate Judge.

Pro se plaintiff Tyrone Walker, a New York State prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983, against a number of corrections employees, alleging deprivation of his civil rights. In his complaint, plaintiff, who is a Muslim, alleges the defendants have failed to provide him with the opportunity to participate in Jumu'ah services during his confinement in the Special Housing Unit (" SHU" ) at Clinton Correctional Facility (" Clinton" ), in violation of his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (" RLUIPA" ), 42 U.S.C. § 2000cc-1(a), and the free exercise clause of the First Amendment to the United States Constitution.

Currently pending before the court is a motion brought by defendants Fadle Assallami, Thomas LaValley, and Dale Artus, the remaining defendants in this action, seeking summary judgment dismissing plaintiff's claims pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that defendants' motion be granted.

I. BACKGROUND[1]

Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Corrections and Community Supervision (" DOCCS" ). Complaint (Dkt. No. 1) at ¶ 1. At all times relevant to this action, he was confined in a SHU cell at Clinton, which is located in Dannemora, New York.[2] Id.

The plaintiff is one of approximately 300 Muslims at Clinton. Plf. Aff. Exh. 1 -- LaValley Admis. (Dkt. No. 63-2) at ¶ 31. Jumu'ah is an hour-long Muslim congregate service held on Fridays, and includes aspects of sermon and prayer. Plf. Aff. Exh. 4 -- Assallami Admis. (Dkt. No. 63-2) at ¶ ¶ 11, 20, 21, 32. Jumu'ah services are provided for Muslim inmates confined at Clinton on Fridays between 1:00 and 2:00 p.m. Id. at ¶ 32. According to Imam Assallami Fadle, the Muslim Chaplin assigned to Clinton, although Muslim men are expected to attend Jumu'ah services if they are free and able to do so, " [i]t is not mandatory for women, or for men who are sick, or for men who are not free to attend service." Id. at ¶ 25; Plf. Aff. Exh. 4 -- Assallami Resp. to Interog. (Dkt. No. 63-2) at ¶ 5.

Pursuant to DOCCS Directive 4933 § 304.9(d), inmates confined in a SHU cell are prohibited from participating in congregate religious services. 7 N.Y.C.R.R. § 304.9(d). Based on his twenty-eight years of experience working for the DOCCS, Joseph F. Bellnier, the DOCCS Deputy Commissioner for Correctional Facilities, states that " the possibility of disruption to the smooth operation of the facility is increased" any time inmates

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congregate.[3] Bellnier Decl. (Dkt. No. 57-4) at ¶ 6. For that reason, " SHU inmates do not attend congregate religious services. Instead, religious counseling by a member of the facility's ministerial services staff is provided upon the written request of an inmate, and the facility senior chaplain or a designated member of the ministerial services staff is required to make a minimum of one round per week in the SHU." [4] Id. at ¶ 12 (citing 7 N.Y.C.R.R. § 304.9). In addition, Muslim SHU inmates are allowed to retain possession of a Quran, Kufi, and prayer rug; they are permitted to pray demonstratively within their cells; they are permitted to order religious periodicals unless they are prohibited for security purposes; and they are provided an alternative diet in conformity with their religious dietary restrictions, and with accommodations made during feast and fast days. Bellnier Decl. (Dkt. No. 57-4) at ¶ 24; LaValley Decl. (Dkt. No. 57-5) at ¶ ¶ 9, 10. Those religious accommodations are designed to provide an " alternative means for Muslim inmates confined to SHU to practice their religion without undue risk to the safety, security and the good working order of correctional facilities[.]" Bellnier Decl. (Dkt. No. 57-4) at ¶ 25.

Because of the prohibition against congregation for SHU inmates, plaintiff in this case requested permission to participate in Jumu'ah by way of closed circuit television from the secured area in the back of his SHU cell.[5] Complaint (Dkt. No. 1) at ¶ ¶ 35-39, 42; Taylor-Scott Decl. Exh. D (Dkt. No. 57-2) at 82. Notwithstanding the fact that SHU inmates currently do not have access to any television of any sort, plaintiff proposes that, monitors could be installed in each cell's Sally port because they are already equipped with wiring for camera/video surveillance. Taylor-Scott Decl. Exh. D (Dkt. No. 57-2) at 82-85. More specifically, plaintiff requests that Muslim inmates

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in the SHU who have not received a misbehavior report within the prior thirty days be allowed to go into the Sally port to participate in Jumu'ah via closed circuit television. Id. at 85.

In the alternative, plaintiff requests that Jumu'ah services be broadcast through the audio headphone jack in his SHU cell.[6] Complaint (Dkt. No. 1) at ¶ ¶ 40-41; Taylor-Scott Decl. Exh. 4 (Dkt. No. 57-2) at 87. The broadcast could either be a live feed or pre-recorded. Taylor-Scott Decl. Exh. 4 (Dkt. No. 57-2) at 95. According to plaintiff, by listening to Jumu'ah on headphones, he could actively participate in the services while still complying with the DOCCS' ban on congregating. Plf. Aff. Exh. 4 -- Assallami Admis. (Dkt. No. 63-2) at ¶ 22.

In an effort to gain the opportunity to participate in Jumu'ah by way of closed circuit television or audio feed, plaintiff filed grievances at Clinton on October 21, 2008, July 1, 2010, and September 21, 2010; sent a complaint letter on July 28, 2008 to defendant Dale Artus, the superintendent at Clinton at that time; forwarded a written complaint to DOCCS Commissioner Brian Fischer on August 25, 2008; sent three letters, dated February 10, 2009, February 23, 2009, and March 2, 2009, to defendant Assallami; and lodged a complaint, dated September 21, 2010, with defendant Thomas LaValley, the current superintendent at Clinton.[7] Complaint (Dkt. No. 1) at ¶ ¶ 35-42; Complaint Exhs. 16-22 (Dkt. Nos. 1-2, 1-3).

Defendant Artus has no personal recollection of having addressed plaintiff's requests. Artus Decl. (Dkt. No. 57-3) at ¶ 4. The record nonetheless demonstrates that he delegated a number of plaintiff's complaints to staff for investigation, and denied plaintiff's grievance dated July 1, 2010, in light of the absence of a DOCCS Directive providing for closed circuit television for religious services. Id. at ¶ ¶ 4, 6; Artus Decl. Exh. B (Dkt. No. 57-3) at 111. On appeal from the superintendent's ruling, the DOCCS Central Office Review Committee upheld the denial finding that plaintiff had " not presented any compelling reasons to place CCTV in his cell to watch Muslim services." Artus Decl. Exh. B (Dkt. No. 57-3) at 109. Insofar as the other complaint letters were delegated to staff for review, defendant Artus does " not have any further information that [leads him] to believe that the issues addressed in those letters were not adequately resolved." Artus Decl. (Dkt. No. 57-3) at ¶ 5. As it relates to defendant LaValley, he has no personal recollection of receiving or responding to plaintiff's letter dated September 21, 2010. LaValley Decl. (Dkt. No. 57-5) at ¶ 4. Defendant Assallami acknowledges that he spoke with defendant Artus regarding plaintiff's request to participate in Jumu'ah services by way of closed circuit television, but was informed that it " was not a decision the Superintendent was authorized to make." Plf. Aff. Exh. 4 -- Assallami Admis. (Dkt. No. 63-2) at ¶ 3; Plf. Aff. Exh. 4 -- Assallami Resp. to Interrog. (Dkt. No. 63-2) at ¶ 3.

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Defendants have submitted evidence explaining the necessary steps the DOCCS would have to take to meet plaintiff's requests for accommodations. Thomas McQuade, a Facilities Planning Specialist employed by the DOCCS, explains that each SHU cell is equipped with three wall jacks, all of which are audio-only capable, and not currently capable of carrying a video feed. McQuade Decl. (Dkt. No. 57-6) at ¶ ¶ 5-6. Therefore, to accommodate plaintiff's request to allow Jumu'ah to be broadcast over closed circuit television in SHU cells, the DOCCS would be required to install the necessary video wiring, as well as televisions. More specifically, as McQuade explains in his declaration,

[t]o do this properly, the existing wiring would need to be modified with a type of cable for in cell television. Conduit will need to be run to provide the extra jack as well as power to each cell. SHU cells are not normally provided user connectable power outlets due to security concerns. New control equipment would also be required, as well as the inmate would need to purchase an approved television from the facility. To accomplish this, the [DOCCS] would need to issue a[ New York State Office of General Services] project for each facility through its capital construction program to perform the necessary work. Design fees and construction costs could be several hundred thousand dollars or greater at a facility depending on the size of the SHU.

Id. at ¶ 9.

Regarding plaintiff's request to permit Muslim SHU inmates to listen to Jumu'ah through an audio feed, the existing wiring in the SHU does not allow an independent signal to be sent to a particular cell. McQuade Decl. (Dkt. No. 57-6) at ¶ 6. Accordingly, in the event the DOCCS satisfied this request, the same religious programming that plaintiff, as a Muslim, would receive in his cell, would also be provided to all of the other SHU inmates, regardless of their religious beliefs. Id. Moreover, the audio option is not feasible because the DOCCS would be forced to install the equipment in all of the SHUs throughout its facilities, of which there are forty-eight, in an effort to maintain consistency, which is important to maintaining the security and order of facilities. Id. at ¶ ¶ 7, 8; see also Bellnier Decl. (Dkt. No. 57-4) at ¶ 18 (" Providing benefits to one group of inmates can lead to manipulative behaviors which place a substantial strain on staffing and other resources." ). McQuade explains that " [e]ach [of the forty-eight] facilit[ies] would need to provide wiring and equipment to extend from the place of worship an audio signal to the existing radio distribution rack for the SHU. Staff would be required to set up the equipment for the service, as well as operate the program selection to send the audio over one of the three channels." McQuade Decl. (Dkt. No. 57-6) at ¶ 8. According to McQuade, " [u]nder current financial restraints, [where] there is reduced budget for new infrastructure projects[,] . . . DOCCS does not currently have the means to accommodate plaintiff's request, or the monetary resources to divert to the type of investment it would take to do so." Id. at ¶ ¶ 4, 10; see also Bellnier Decl. (Dkt. No. 57-4) at ¶ 20.

In addition to the financial concerns, there are a number of safety concerns associated with re-wiring the SHU cells to make them capable of permitting SHU inmates to view Jumu'ah services through closed circuit television or listening through an audio feed. For example, because of the behavioral concerns that lead to the placement of inmates in SHU, any video displays or wiring would need to be secured and resistant to tampering to prevent any components from being fashioned

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into weapons or escape paraphernalia. Bellnier Decl. (Dkt. No. 57-4) at ¶ 15.

II. PROCEDURAL HISTORY

Plaintiff commenced this action with the filing of his complaint on November 29, 2010. Complaint (Dkt. No. 1). Defendants responded by the filing of a motion to dismiss the complaint on April 4, 2011, Dkt. No. 28, resulting in an issuance of a report recommending that several of plaintiff's claims, as well as several defendants, be dismissed from the action, Dkt. No. 40. That report was adopted through a memorandum-decision and order issued by District Judge Mae A. D'Agostino on March 26, 2012. Dkt. No. 43. As a result of those decisions, only three defendants remain in this action, including Dale Artus, the former Superintendent at Clinton; Thomas LaValley, a former Deputy Superintendent and presently the Superintendent at the facility; and Imam Assallami A. Fadle, the Islamic Chaplain at Clinton. The only claims that have survived defendants' motion to dismiss are plaintiff's RLUIPA and First Amendment causes of action arising from allegations that the defendants failed to permit him to observe Jumu'ah services. Report and Recommendation (Dkt. No. 40) at 47-48; Decision and Order (Dkt. No. 43) at 19.

Following the close of discovery, the remaining defendants in this action moved for summary judgment arguing that plaintiff's remaining claims should be dismissed because there is no record evidence to support a finding that defendants were personally involved in the deprivations alleged by plaintiff, and that the RLUIPA and/or First Amendment does not require DOCCS to provide Jumu'ah services to Muslim inmates. Defs.' Memo. of Law (Dkt. no. 57-8) at 12-21. In the alternative, defendants argue that they are entitled to qualified immunity from suit. Id. at 21-23. Defendants' motion, which is now 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 the Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Legal Standard Governing Motions for Summary Judgment

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted " if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is " material" for purposes of this inquiry, if it " might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson ). A material fact is genuinely in dispute " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must

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show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when " there can be but one reasonable conclusion as to the verdict" ).

B. Plaintiff's Free Exercise Claims

1. Plaintiff's First Amendment Claim

While inmates confined within prison facilities are by no means entitled to the full gamut of rights guaranteed under the United States Constitution, including its First Amendment, the free exercise clause of that provision does afford them at least some measure of constitutional protection, including their right to participate in congregate religious services. See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (" In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." ); 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." ). That right, however, is not without limits, and the task of defining the contours of that right in a prison setting requires striking a delicate balance between the rights of prison inmates and the legitimate interests of prison officials tasked with maintaining prison security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003); Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990). When determining whether a refusal by prison officials to permit an inmate's attendance at a religious service impinges upon that individual's First Amendment free exercise right, the inquiry is " one of reasonableness, taking into account whether the particular [act] affecting [the] right . . . is 'reasonably related to legitimate penological interests.'" Benjamin, 905 F.2d at 574 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)); Ford, 352 F.3d at 588; see also Farid v. Smith, 850 F.2d 917, 925 (2d Cir. 1988).

As a threshold matter, " [t]he prisoner must show . . . that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006). In evaluating this factor, the court must be wary of " 'question[ing] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.'" McEachin v. McGuinnis, 357 F.3d 197, 201 (2d Cir. 2004) (quoting Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989)). Instead, a court should consider only whether the particular plaintiff has " demonstrate[d] that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." Ford, 352 F.3d at 588 (quotation marks omitted). Once a plaintiff satisfies this burden, defendants must then " bear the relatively limited burden of identifying the legitimate penological interests that

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justifying impinging conduct." Salahuddin, 467 F.3d at 275. " [T]he burden[, however,] remains with the prisoner to 'show that these penological concerns were irrational.'" Ford, 352 F.3d at 595 (quoting Fromer v. Scully, 874 F.2d 69, 74 (2d Cir. 1989)) (alteration omitted).

The court then inquires into whether a defendant's conduct, which allegedly deprives the plaintiff of his free exercise rights, is reasonably related to some penological interest. Ford, 352 F.3d at 594; see also Washington v. Gonyea, 538 F.Appx. 23, No. 11-0980, 2013 WL 4792413, at *3 (2d Cir. Sept. 10, 2013) (" Even if Defendants-Appellees substantially burdened [the Plaintiff-Appellant]'s sincerely held religious believes, their actions do not constitute a constitutional deprivation if they were reasonably related to legitimate penological interests." (quotation marks omitted)).[8] To evaluate whether a challenged regulation or decision by prison officials is reasonable,[9] courts must evaluate the following four factors:

[(1)] [W]hether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; [(2)] whether prisoners have alternative means of exercising a burdened right; [(3)] the impact on the guards, inmates, and prison resources of accommodating the right; and [(4)] the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.

Salahuddin, 467 F.3d at 274 (footnote omitted).

In this case, the first question is whether there is a dispute of material fact as to whether the decision to deny plaintiff's request for video or audio broadcasts of Jumu'ah places a substantial burden on his sincerely held religious beliefs. After careful consideration, I conclude that, based on the record now before the court, a reasonable factfinder could conclude that denying plaintiff's request to view or listen to Jumu'ah services substantially burdens his beliefs. Although plaintiff conclusorily describes participation in Jumu'ah services as " mandatory," Plf. Aff. (Dkt. No. 63-2) at ¶ 9, defendant Assallami, an Imam and the Muslim Chaplain at Clinton, states that, " [i]f a man is free to [attend Jumu'ah], and able to do so, he should do so. It is not mandatory for women, or for men who are sick, or for men who are not free to attend services." Plf. Aff. Exh. 4 -- Assallami Resp. to Interrog. (Dkt. No. 63-2) at ¶ 5. Accordingly, a dispute of fact exists in the record as to whether Jumu'ah is mandatory for Muslims, which implicates the question of whether plaintiff's beliefs are " sincerely held" and/or " substantially burdened," and the court is not in a position to determine this type of ecclesiastical question. See Ford, 352 F.3d at 590-91 (finding the district court erred in crediting the DOCCS religious authorities who all concluded that the meal the plaintiff was denied did not carry religious significance because the pertinent inquiry was not whether the meal carried religious meaning under Islamic law and tradition, but whether the plaintiff sincerely believed it did).[10]

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Because plaintiff has satisfied his burden of demonstrating a dispute of fact regarding whether he holds a sincere belief that is substantially burdened by defendants' conduct, the court must next consider whether, based on the record evidence, there is a dispute of fact as to whether defendants' actions were " reasonably related to some legitimate penological interests." Ford, 352 F.3d at 594. As was explained above, the factors to consider in determining whether a decision is reasonably related to a legitimate penological interest are

whether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; whether prisoners have alternative means of exercising a burdened right; the impact on the guards, inmates, and prison resources of accommodating the right; and the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.

Salahuddin, 467 F.3d at 274.

There is substantial record evidence illustrating a connection between defendants' refusal to install the necessary equipment to permit plaintiff to view or listen to Jumu'ah services and a governmental objective, as well as the potential impact on DOCCS corrections officers, inmates, and resources. First, and most persuasively, defendants have set forth evidence demonstrating that installation of equipment necessary to provide closed circuit television in a cell's Sally port or audio feed into a cell would create safety concerns at a facility. For example, DOCCS Deputy Commissioner of Facilities Joseph F. Bellnier has explained that any time a SHU inmate moves in or out of his cell, special precautions must be taken because inmates in the SHU are housed there primarily for disciplinary confinement and after " an administrative determination that [their] presence in general population is a threat to staff, other inmates and/or good order of the correctional facility." Bellnier Decl. (Dkt. No. 57-4) at ¶ 4, 8. Bellnier explains that, " absent special circumstances, inmates assigned to SHU are handcuffed whenever they are escorted from their cells, and must be escorted by at least two correction officers." Id. at ¶ 9 (citation omitted). It follows that, because plaintiff's requests involve access to the Sally port behind his SHU cell, DOCCS corrections officers will be forced to employ the enhanced security measures that are required by DOCCS directives. In addition, plaintiff's proposal that congregate services that occur at DOCCS facilities could be videotaped for the benefit of SHU inmates (and then replayed using the newly installed technology in SHU cells) would be disruptive to the general population inmates who attend those services. Id. at ¶ 21. Moreover, occasionally an inmate from general population facilitates a congregate service. Id. at ¶ 22. If the service was to be videotaped for viewing by SHU inmates, Bellnier explains that a safety concern arises where the inmates " could use the video transmission . . . to convey covert messages" to one another. Id. Finally, Bellnier has stated that the new equipment would have to be installed in a manner sophisticated enough that it is tamper-proof so that inmates cannot create weapons from it. Id. at ¶ 5.

In addition to these safety concerns, defendants have provided evidence that, if DOCCS was to accommodate plaintiff's requests regarding participation in Jumu'ah through video or audio feed, it would be

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required to accommodate similar requests from all SHU inmates in the custody of the DOCCS who seek to participate in congregate services, regardless of their religion. Bellnier Decl. (Dkt. No. 57-4) at ¶ ¶ 18-20; see also McQuade Decl. (Dkt. No. 57-6) at ¶ 8. There are forty-eight SHUs in the DOCCS system throughout New York State. Bellnier Decl. (Dkt. No. 57-4) at ¶ 19; McQuade Decl. (Dkt. No. 57-6) at ¶ 8. The volume of requests that DOCCS corrections officers may endure were DOCCS required to provide video or audio feed of congregate religious services would be " unduly burdensome [--] even if SHU cells were equipped with the necessary wiring and video displays, which they are not." Bellnier Decl. (Dkt. No. 57-4) at ¶ 20.

In opposition to this evidence, plaintiff argues that his requests " do not present issues of security or cost" and that " there are numerous alternative ways that the matter could be accomplished without being to[o] costly or a threat to security." Plf. Aff. (Dkt. No. 63-2) at ¶ 40. Plaintiff suggests, for example, that the televisions and tape recorders that are confiscated from inmates in the custody of the DOCCS could offset the cost for implementing plaintiff's requests for listening to or viewing Jumu'ah. Id. at ¶ ¶ 17, 41. The televisions, however, are currently resold at the prison commissary, and the proceeds are put into the Inmate Benefit Fund. Id. at ¶ 17. There is no record evidence regarding the Inmate Benefit Fund, or whether the specific proceeds earned from the resale of confiscated televisions are put toward a specific inmate program that depends on that funding. Moreover, although plaintiff conclusorily states that " there are numerous alternative[s]" to his requests that a video or audio feed be installed in a SHU cell Sally port or inside the cell directly, he offers no specifics.[11]

Turning to the factor regarding whether prisoners have an alternative means of exercising the alleged burdened right in this case, there is record evidence that illustrates the several accommodations Muslim SHU inmates already receive for their religious beliefs. Specifically, DOCCS Directive 4202 permits Muslim inmates confined to the SHU to (1) maintain a copy of the Quran, a prayer rug, and a Kufi in their cells, (2) engage in demonstrative prayer in their cells; (3) request alternative meals that satisfy Muslim dietary requirements; (4) eat special meals during Islamic feast days; (5) eat meals after sunset during Islamic feast days; and (6) order religious periodicals, provided they are not a prohibited list for security purposes. LaValley Decl. (Dkt. No. 57-5) at ¶ ¶ 9-10. Moreover, DOCCS Directive 4933 permits Muslim SHU inmates to meet, one-on-one, with an Imam or religious adviser of their registered religion. Id. at ¶ 11. Although none of these accommodations specifically permit

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SHU inmates to congregate for Jumu'ah, the record suggests that participation in congregate service is one of many Muslim traditions. On balance, in light of the security and cost considerations highlighted by defendants, as well as the number of accommodations already provided to SHU inmates in the custody of the DOCCS, in my view no reasonable factfinder could conclude that defendants' decision to refuse plaintiff's requests regarding installation of new equipment so that SHU inmates can participate in Jumu'ah was unreasonable. Accordingly, I recommend that this claim be dismissed. See O'Lone, 482 U.S. at 351-52 (applying the reasonableness test, the Court held that a restriction prohibiting Muslim prisoners from attending Jumu'ah did not violate the free exercise clause because, inter alia, those prisoners had alternative means of exercising their religious rights due to numerous other accomodations afforded to Muslims for other practices of their religion); Vega v. Lantz, No. 04-CV-1215, 2009 WL 3157586, at *6-7 (D. Conn. Sept. 25, 2009) (finding that the plaintiff's request for Halal meat to be served to him as a Muslim was properly denied by the defendants, where the defendants submitted evidence that granting the accommodation would create issues of favoritism in the facility and increase administrative costs in light of the fact Halal meat is more expensive, needs to be transported, stored, and prepared separately from other meat, and where the defendants demonstrated that the plaintiff had other opportunities to exercise his religious beliefs).[12]

2. Plaintiff's RLUIPA Claim

As was previously noted, plaintiff has also asserted a claim under the RLUIPA, which 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 the burden on that person--

(1) is in furtherance of a compelling governmental interest; and

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

42 U.S.C. 2000cc-1(a). " As a general matter, RLUIPA imposes duties on prison officials that exceed those imposed by the First Amendment." Jova v. Smith, 582 F.3d 410, 415 (2d Cir.2009).

Similar to claims arising under the First Amendment free exercise clause, in considering claims arising under the RLUIPA courts apply a burden-shifting analysis. Harnett v. Barr, 538 F.Supp.2d 511, 520 (N.D.N.Y. 2008) (Hurd, J.). Under the established protocol, the plaintiff bears the initial obligation of showing that his religious exercise has been burdened and that the burden is substantial. Harnett, 538 F.Supp.2d at 520 (citing Marria v. Broaddus, 200 F.Supp.2d 280, 297 (S.D.N.Y. 2002)). The focus then shifts to the government

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to show that the burden furthers a compelling governmental interest and that it represents the least restrictive means of achieving that interest. Harnett, 538 F.Supp.2d at 520. Under the RLUIPA, " religious exercise" is defined to include " any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A).

Here, as was discussed above in the context of plaintiff's First Amendment free exercise claim, plaintiff has proffered sufficient evidence to establish that inhibiting him from participating in Jumu'ah places a substantial burden on the exercise of his religion. Accordingly, the court must now determine whether there a genuine dispute of fact as to whether the defendants' denial of plaintiff's request for Jumu'ah services to be provided by way of video or audio feed furthers a compelling governmental interest and represents the least restrictive means necessary. As was also discussed above, defendants have set forth evidence demonstrating that plaintiff's proposals give rise to several articulable security concerns. Moreover, in order to accommodate plaintiff's requests, new wiring and equipment would have to be installed in all SHUs within the DOCCS, of which there are forty-eight. Bellnier Decl. (Dkt. No. 57-4) at ¶ ¶ 18-19; McQuade Decl. (Dkt. No. 57-6) at ¶ 8. Defendants have estimated the cost for undertaking this project at " several hundred thousand dollars." McQuade Decl. (Dkt. No. 57-6) at ¶ 10. In light of all of this evidence provided by defendants that illustrates how plaintiff's requests in this case give rise to safety and cost concerns, I find that they have demonstrated a compelling governmental interest.

Turning to the question of whether defendants' decision to deny the requests is the least restrictive means to satisfy the compelling interests, I find that it is. Plaintiff's requests are very specific -- he requests that DOCCS install closed circuit television in each SHU cell or its Sally port or install additional wiring to permit an audio feed of Jumu'ah. The nature of this request mandated that defendants respond either by accommodating or denying the request. Defendants chose to deny the request, and the rationale offered to justify their denial adequately supports a finding that denial was the only means of furthering the interests identified. Accordingly, I recommend that plaintiff's RLUIPA claim be dismissed. See Vega, 2009 WL 3157586, at *8 (" [T]he defendants have demonstrated. . . that the regulation is in furtherance of compelling governmental interests including prison security, controlling costs, and maintaining workable administrative procedures." ); Phipps v. Morgan, No. 04-CV-5108, 2006 WL 543896, at *9 (E.D. Wash. Mar. 6, 2006) (" The Court further finds that Defendants have not only shown legitimate interests for First Amendment purposes, i.e., reducing costs, streamlining food production, limiting the number of required staff, maintaining consolidation of vendors, and limiting security risks, but they have also established a compelling justification for the denial of Halal meals to Plaintiff under RLUIPA." ).

IV. SUMMARY AND RECOMMENDATION

After a careful review of the record in this case, I find that defendants' decision to deny plaintiff's requests for access to Jumu'ah services through closed circuit television or an audio feed was reasonably related to articulable legitimate penological interests, including safety and the cost of installing the necessary equipment, and that their denial furthers those interests,

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as required under the RLUIPA.[13]

Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 57) be granted, and that this case be DISMISSED.

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 and recommendation upon the parties in accordance with this court's local rules.


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