United States District Court, N.D. New York
Donald Lee Curtis, Green Haven Correctional Facility, Stormville, NY, Plaintiff pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of New York, Richard Lombardo, Esq., Assistant Attorney General, Albany, NY, Counsel for Defendants.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
In this pro se inmate civil rights case under 42 U.S.C. § 1983, United States Magistrate Judge Therèse Wiley Dancks has issued a Report-Recommendation (Dkt. No. 32) recommending that the Court, upon screening plaintiff's amended complaint, dismiss without leave to amend: all claims against defendants in their official capacities; the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc, claim; and the First Amendment free exercise claim. Magistrate Judge Dancks further recommends dismissing with leave to amend: the Eighth Amendment claim regarding meals; the First Amendment and equal protection claims regarding reading materials; the due process claim regarding special housing unit ("SHU") confinement; the Eighth Amendment claims regarding SHU confinement; and the retaliation claim.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Here, plaintiff makes a "categorical objection... to the overall" Report-Recommendation (Dkt. No. 33), and a specific objection to the dismissal of his RLUIPA, First Amendment and Eight Amendment claims regarding meals. Plaintiff claims that defendants denial of a kosher, low sodium high fiber,  meal violates his rights. Additionally, plaintiff moves (Dkt. No. 35) for appointment of counsel.
Objections to Report-Recommendation
As Magistrate Judge Dancks stated, money damages are not available under RLUIPA, Sosamon v. Texas , 131 S.Ct. 1651, 1659 (2011), and plaintiff's claim for injunctive relief is moot because he has been transferred away from Upstate Correctional Facility, where the alleged violation took place. Salahuddin v. Goord , 467 F.3d 263, 272 (2d Cir. 2006). To the extent plaintiff claims, for the first time, in his objections, that the violation continues, the Court notes that he has not identified anyone at Green Haven Correctional Facility, where is housed at present, who is forcing him "to abandon his religious tenets and eat diet non-kosher foods". Dkt. 35, p.3. Thus, should plaintiff wish to pursue this claim, he must name as defendants the individuals, if any, who are personally involved in this alleged RLUIPA violation, to the extent it continues, at Green Haven.
With respect to plaintiff's First Amendment claim, in view of the allegation he makes in his objection to the Report-Recommendation: that defendants are forcing plaintiff "to abandon his religious tenets and eat diet non-kosher foods", Dkt. No. 35, p.3, the Court cannot say defendants are entitled to qualified immunity at this point in the litigation. It is well settled that "prison officials must provide a prisoner a diet that is consistent with his religious scruples." Bass v. Coughlin , 976 F.2d 98, 99 (2d Cir. 1992) (per curiam). Thus, to the extent plaintiff claims defendants forced him to abandon his kosher diet, his claim may proceed as against defendant Donald Haug, Catherine Jacobsen and Brian Fischer.
Finally, the Court agrees that the amended complaint does not allege facts plausibly suggesting that defendants "served plaintiff nutritionally inadequate food prepared and served under conditions presenting an immediate danger to the health and well being of the inmates who consume it", in violation of the Eighth Amendment. Dkt. No. 32, p.14; see Robles v. Coughlin , 725 F.2d 12, 15 (2d Cir. 1983) ("the Eighth Amendment prohibition against cruel and unusual punishment does require that prisoners be served nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it.'") (quoting Ramos v. Lamm , 639 F.2d 559, 571 (10th Cir. 1980)). Plaintiff may, however, file an amended complaint with respect to his Eighth Amendment meal claim.
The Court has considered plaintiff's categorical objection, and upon de novo review, accepts and adopts the remainder of the Report-Recommendation in its entirety.
Motion to Appoint Counsel
Plaintiff moves (Dkt. No. 35) "for assignment of pro bono counsel pursuant to" 28 U.S.C. § 1915. Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin , 114 F.3d 390, 393 (2d Cir.1997). Instead, the Court must consider a number of factors. Hodge v. Police Officers , 802 F.2d 58, 60-61 (2d Cir. 1986). As a threshold matter, the court should ascertain whether the indigent's claims seem likely to be of substance. Id . The Court next considers:
"the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in the case why appointment of counsel would be more likely to lead to a just determination."
Terminate Control Corp. v. Horowitz , 28 F.3d 1335, 1341 (2d Cir.1994) (quoting Hodge , 802 F.2d at 61-62). No one factor is controlling, "each case must be decided on its own facts." Velasquez v. O'Keefe , 899 F.Supp. 972, 974 ...