United States District Court, W.D. New York
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all further proceedings, including the entry of final judgment. Dkt. #17.
Currently before the Court is defendants' motion for summary judgment. Dkt. #25. For the following reasons, the motion is denied.
Plaintiff commenced this action, pro se, pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), alleging that while in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), at the Collins Correctional Facility ("Collins"), Corrections Officer (C.O."), Conway insulted him and tampered with his Suhoor food bag between July 23 and July 27, 2012 and that on August 12, 2012, C.O. Grover demanded a urine sample while he was fasting for Ramadan and issued a misbehavior report when plaintiff was unable to comply, resulting in three months in the Special Housing Unit ("SHU"). Dkt. #1.
When it was determined that there was no corrections officer by the name of Conway employed at Collins, the Court terminated C.O. Conway and substituted "John Doe, Correctional Officer, " as a defendant until plaintiff could identify the proper party through discovery. Dkt. #13.
Joshua Becker, Inmate Grievance Program ("IGP"), Supervisor at Collins, declares that plaintiff failed to file a grievance regarding his complaints against CO Grover. Dkt. #28, ¶ 7.
Plaintiff declares that he argued during his disciplinary hearing that he was unable to produce a urine specimen because he was fasting for religious reasons and submits a copy of DOCCS Directive 4937, which provides that
Inmates participating in an approved religious fast should not be required to provide a urine sample during fasting periods since consumption of water may be necessary. Sample requests should be scheduled during other periods of the day and normal urinalysis testing procedures should then apply, including offering water to those inmates unable to provide a urine sample.
Dkt. #38, ¶¶ 5 & 7 & p.9. Plaintiff declares that he exhausted his administrative remedies with respect to the disciplinary proceeding by appealing the disciplinary decision, noting that DOCCS Directive 4040.701.3(e)(2) provides, in pertinent part, that "an individual decision or disposition resulting from a disciplinary proceeding... is not grievable." Dkt. #28, p.7 & 20; Dkt. #38, ¶¶ 8 & 12.
DISCUSSION AND ANALYSIS
John Doe Defendant
The Attorney General's Office argues that the cause of action initially commenced against CO Conway should be dismissed for lack of service of process. Dkt. #27, p.4.
In it's Decision and Order entered September 5, 2013, the Court granted plaintiff permission to seek, through discovery, the name of the corrections officer alleged to have tampered with his Suhoor food bag between July 23 and July 27, 2012. Dkt. #13. However, Rule 26 disclosure was not provided with respect to ...