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Alster v. Fischer

United States District Court, W.D. New York

July 20, 2017

STEPHEN ALSTER, also known as STEVEN ALSTER, Plaintiff
v.
BRIAN FISCHER, JOHN B. LEMPKE, SHERYL ZENZEN, RABBI MAX, STATE OF NEW YORK, KENNETH PERLMAN, T. MEEKER FSA, II, Defendants

          DECISION AND ORDER

          CHARLES J. SIRAGUSA, United States District Judge

         INTRODUCTION

         This is an action pursuant to 42 U.S.C. § 1983 in which Stephen Alster (“Plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), alleges that Defendants violated his federal and state constitutional rights to free exercise of religion. Now before the Court is Defendants' motion for partial summary judgment (Docket No. [#79]). The application is granted in part and denied in part.

         BACKGROUND

         The following are the facts viewed in the light most-favorable to Plaintiff. At all relevant times, Plaintiff was confined at Five Points Correctional Facility (“Five Points”). At Five Points, John Lembke (“Lembke”) was Superintendent, Sheryl Zenzen (“Zenzen”) was Deputy Superintendent for Programs, Rabbi Max (“Rabbi Max”) was the Jewish Chaplain and T. Meeker (“Meeker”) was the Food Service Administrator. At all relevant times Brian Fischer (“Fischer”) was DOCCS Commissioner and Kenneth Perlman (“Perlman”) was DOCCS Deputy Commissioner.

         On or about July 18, 2008, Plaintiff was transferred to Five Points from a different DOCCS facility. Plaintiff identifies himself as an Orthodox Jew. Plaintiff maintains that his ability to practice his faith was hindered in various ways at Five Points. With regard to Jewish dietary practices, Plaintiff believes that some of the food represented to be kosher was not actually kosher, and he maintains that special kosher meals were not served on certain Jewish holy days.[1] Plaintiff also contends that Five Points failed to provide an area for Jewish inmates to wash their hands “directly before sitting down to meals, ” as required by Jewish religious laws.[2] Plaintiff further complains that he was required to sign a slip of paper each time he received a kosher “cold alternative diet” (“CAD”) tray, which on Saturdays violated his faith, because “Jewish Religious Law prohibits that on every Saturday and also on many holidays that no writing shall take place.”[3]

         Plaintiff also contends that he was denied the ability to participate in religious services and observances. On this point, Plaintiff alleges that some religious services were denied to Jewish inmates altogether, [4] while on other occasions he was singled out and prevented, by Rabbi Max, from participating in services, allegedly because he was disruptive. Plaintiff denies that he was disruptive, and indicates that he merely talks loudly because he is hearing impaired.

         Plaintiff filed an inmate grievance at Five Points, which was assigned grievance number FPT-19872-08.[5] The grievance, which is dated “8/27/08, ” but which was apparently filed on September 2, 2008, stated:

I grieve the fact that I am being denied the right to practice my religion. I want permission to pray as a group every week and not once every two weeks as now. In the Jewish religion there are many prayers that can only be said as a group. Also with the HIGH HOLIDAYS, Rosh Hashana and Yom Kipur it is very important that we pray and break the fast together as a group. This is called for in our religion by saying we should go to temple and pray together. It is called for in our TORAH when we are told to pray as a group.
Other religions are allowed to pray together and so should we. We can not say our prayers on any other day than the holiday falls on. Please let us pray as a group. Give us a chance. This is all I can hope for.
Action Requested: Please let us observe and adhere to the tenants of our beliefs. Give us a chance to show you that we are sincere and will cause no problems. Thank you.

Docket No. [#83-1] at p. 51.

         On September 20, 2008, approximately three weeks after Plaintiff filed the grievance, but before the Inmate Grievance Review Committee (“IGRC”) issued any decision, Plaintiff submitted another writing to the IGRC, see, Docket No. [#83-1] at p. 52, which the IGRC treated as a supplement to the original grievance.[6] The second writing stated:

1 grieve that I am being denied religious services. In over 3 months there has been only one time that I was called to a meeting with the Rabbi and 2 other inmates. This was in a room (office) with many objects etc from other religious faiths than Judaic. Our Torah, Law, forbids our presence and use of such places. [sic] Why doesn't the Rabbi have his own office? Is there a place for us to hold services? When? What about our meals? Other faiths are allowed to eat pray as their religion requires. Action requested: Permit me to follow the beliefs, rules, laws and traditions of Judaic Law.

Docket No. [#79-5] at p. 14.

         The record indicates that the IGRC investigated Plaintiff's grievance and concluded, inter alia, that he was being excluded from Jewish religious gatherings because of his behavior. Specifically, on September 22, 2008, an IGRC member wrote an investigative report stating: “I spoke with Rabbi Zui (Max) on 9/19/08 and Rabbi (Max) stated Mr. Alster will be gave time [sic], but not with the group. Per policy, Rabbi is permitted to exclude individuals from group meetings.” Docket No. [#79-5] at p. 9. Later, [7] Rabbi Max wrote a note, stating: “In response to S. Alster's grievance I have a private service with him. I cannot have him with the group as he is disruptive.” On September 25, 2008, the IGRC denied Plaintiff's grievance, stating:

Per. Investigation individuals are permitted to be excluded from group meeting. The IGRC has been informed that Services requested by grievant are required to have ten (10) participants in the religion that meet a Jewish faith criteria which currently there simply is not in the Facility. (IGRC). Grievance Denied.

Docket No. [#79-5] at p. 7.

         On October 3, 2008, Plaintiff appealed the IGRC's determination to Superintendent Lempke.[8] On October 14, 2008, Lempke issued a decision affirming the denial of Plaintiff's grievance, stating:

Investigation revealed that the facility Rabbi is available bi-weekly and services must be conducted by the Rabbi. There are no Jewish provisions to break fast together.
Concerning Group Prayer: If a Jewish gathering of ten (10) or more people and practical [sic] in a Correctional facility this would be considered; however, there are not ten (10) or more authentic Jewish individuals at this facility, so this request cannot be honored. The grievant is not prevented from prayers on an individual basis. Appeal denied.

Docket No. [#79-5] at p. 12.

         On October 24, 2008, Plaintiff appealed Lempke's decision to the DOCCS Central Office Review Committee (“CORC”), stating, in pertinent part, that “[i]f the Sup[erintendent] is correct then it is still discrimination to split us up so that our religion is denied us.”[9] On November 26, 2008, CORC denied the appeal, stating:

Upon full hearing of the facts and circumstances in the instant case, the action requested herein is hereby denied. CORC upholds the determination of the Superintendent for the reasons stated.
Contrary to the grievant's assertions, CORC has not been presented with sufficient evidence to substantiate any malfeasance by staff. The grievant may pray on an individual basis until such time as a group of ten or more Jewish inmates have expressed a similar interest in group prayer. Then the grievant may again request permission. CORC advises grievant to address any further concerns to the Rabbi for the most expeditious means of resolution.

Docket No. [#79-5] at p. 4.

         On October 7, 2009, Plaintiff commenced the instant action, proceeding pro se, and suing the defendants in both their official and individual capacities. The Amended Complaint [#4], which demands both injunctive relief and money damages, purports to assert three separate causes of action. The first cause of action alleges that Defendants “deprived [Plaintiff] of Kosher meals” in two ways: First, Five Points did not provide a “designated sink, or facility” for Jewish inmates to wash their hands “directly” before eating; and second, Five Points required Jewish inmates to sign for their Kosher meals, which on Saturdays (and some holidays) violated Jewish law by requiring Jewish inmates to write.[10]

         The Second cause of action alleges that Defendants “depriv[ed] the Plaintiff of the practice of his religion, religious services, and the right to his religious beliefs, ” in two ways. First, Plaintiff contends that Defendants improperly limited ordinary weekly Jewish congregational prayer gatherings, both by refusing to conduct such services unless at least ten Jewish inmates were willing to participate, and by failing to provide a room dedicated to Jewish worship. Regarding the number of inmates required to hold Jewish services, Plaintiff does not challenge the policy directly, but appears to dispute Defendants' factual contention that less than ten Jewish inmates were interested in such services.[11] Second, Plaintiff alleges that in 2008 and 2009, Defendants failed to allow congregational celebrations of specific Jewish holidays, such as Passover, Chanukuh, Shavoz, and the “month of AV.”

         The third cause of action is somewhat duplicative of the second, in that it first complains that Defendants “den[ied] the Plaintiff religious services” and accompanying religious meals, on specific Jewish holidays in 2008 and 2009, including Rosh Hashana, Yom Kippur, Sukkot, the “fast of Gedallah, ” Purim, Havdalh and “Tevet Holiday.” (Plaintiff does not claim that these holidays were observed and he was excluded; he contends that they were not observed at all.) A second aspect of the third cause of action is that it alleges that Defendants improperly prevented Plaintiff personally from attending Jewish religious gatherings due to his alleged disruptive behavior, which he maintains was merely just loud talking caused by his hearing impairment. The third cause of action further alleges that Plaintiff was transferred to Five Points in order to retaliate against him (because of the lack of Jewish religious observances at Five Points), although the pleading does not allege who arranged such retaliatory transfer, nor does it claim that such alleged retaliation occurred because he engaged in protected activity.

         On January 21, 2011, the Court granted Plaintiff's application to appoint counsel.[12] Thereafter, the parties conducted discovery.

         On October 9, 2014, Defendants filed the subject motion [#79] for partial summary judgment. The basis for the motion was threefold. First, Defendants contend that any claims against them in their official capacities are barred. Second, Defendants assert that Plaintiff has failed to exhaust his administrative remedies as to all claims except the claim that “he was denied weekly services for some time prior to September 2, 2008 by Chaplain Max.”[13] Although Defendants agree that Plaintiff is entitled to proceed to trial on that claim, they contend that Plaintiff “exhausted no grievances pertaining to kosher food, holidays, or any other religious deprivations.”[14] Third, Defendants claim that Plaintiff cannot establish personal involvement by Fischer, Lempke, Zenzen, Perlman or Meeker.

         Plaintiff, by his counsel, filed a response opposing all aspects of Defendants' motion. As for exhaustion of administrative remedies, Plaintiff contends that he properly exhausted all of the claims in this action via grievance number FPT-19872-08, discussed earlier. With regard to the official-capacity claims, Plaintiff argues that such claims are permitted insofar as they seek injunctive relief. And finally, Plaintiff insists that he can demonstrate personal involvement by all Defendants. On this point, Plaintiff states, for example, that, “[w]here a supervisor[y] official receives and responds or otherwise act on a prisoner's complaint, that official is personally involved.”[15]

         Defendants filed a reply. Notably, in their reply, Defendants now retreat somewhat from their earlier arguments, and admit that by virtue of grievance number FPT-19872-08, Plaintiff exhausted three issues: “(1) whether, in September 2008, Plaintiff was improperly denied group prayer services; (2) whether Plaintiff was improperly denied the ability to break fast in a group for the high holidays in 2008[;] and (3) [whether] it was improper that on or about September 2008, Jewish prayer sessions occurred in a room containing religious objects from other faiths.”[16] Defendants also now concede that Superintendent Lempke was personally involved in Plaintiff's claim ...


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