United States District Court, N.D. New York
THOMAS Plaintiff, pro se.
ERIC T. SCHNEIDERMAN Attorney General of the State of New
York Counsel for Defendants.
COUNSEL: KYLE W. STURGESS, ESQ. Assistant Attorney General.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE
se Plaintiff Errol Thomas, an inmate in the custody of
the New York State Department of Corrections and Supervision
(“DOCCS”), has commenced this action under 42
U.S.C. § 1983, alleging violations of his civil rights
while confined at Eastern New York Correctional Facility
(“Eastern”). (Dkt. No. 1.) The second amended
complaint is the operative pleading. (Dkt. No. 63.) Remaining
Defendants are Corrections Officer (“C.O.”)
Francine Waugh, Sergeant (“Sgt.”) Berndt Leifeld,
Superintendent Ronald D. Larkin, Inmate Grievance Program
(“IGP”) Coordinator John Antonelli, DOCCS
Assistant Commissioner Edward Bly, and DOCCS Director of
Ministerial, Family &Volunteer Services
(“MFVS”) Cheryl Morris.
Id.Plaintiff's claims under the free
exercise clause of the First Amendment and the Religious Land
Use and Incarcerated Persons Act (“RLUIPA”), 42
U.S.C. § 1997e et seq., survived the District
Court's initial review pursuant to 28 U.S.C. §§
1915 and 1915A. (Dkt. No. 69.)
have now moved for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure (“FRCP”).
(Dkt. No. 89.) Defendants seek summary judgment on any or all
of the following grounds: (1) Plaintiff has failed to
properly exhaust his administrative remedies under the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a), as to both claims with respect to the substantive
matter of his lawsuit: viz., a determination by DOCCS to
prohibit him from wearing a “tam”-style head
cover as an alternative form of Jewish head covering; (2)
Defendants C.O. Waugh, Sgt. Leifeld, Superintendent Larkin,
IGP Coordinator Antonelli, and Assistant Commissioner Bly
lack the requisite personal involvement to assign them
liability under § 1983 and/or RLUIPA; (3) Defendants are
entitled to qualified immunity insofar as at the time of
their actions, they were acting with a reasonable belief in
their compliance with the Plaintiff's constitutional
rights as understood by and reflected in case authority at
that time. (Dkt. No. 89-9 at 7-20.) Defendants further contend
that, to the extent necessary, Plaintiff's claims for
money damages under RLUIPA are not cognizable as a matter of
law and Plaintiff's demands for injunctive relief are
moot. Id. at 20-23. Plaintiff has not opposed the
motion has been referred for a Report and Recommendation by
the Hon. Mae A. D'Agostino, United States District Judge,
pursuant to 28 U.S.C. § 636(b) and Northern District of
New York Local Rule (“L.R.”) 72.3. For the
reasons that follow, the Court recommends that
Defendants' motion for summary judgment be granted in
part and denied in part.
times relevant to this action, Plaintiff was a practicing and
registered member of the Jewish-Hebrew faith. (Dkt. No. 63 at
¶ 16.) Plaintiff is a “non-mainland African
American male . . . and wears his hair in locks.”
Id. at ¶ 18. Plaintiff wears a head covering
“to express his awe and respect for God.” (Dkt.
No. 68 at ¶¶ 20-22.) Plaintiff believes that
“[t]he failure to wear such a religious head-covering
under Jewish-Hebrew tenet is to appear nude, insolent, and
indecent before God.” Id. at ¶ 23. The
head covering he wears “has alternatively been referred
to as a large Yarmulke, Kippah or Mitznefet.”
Id. at ¶ 21.
March 18, 2012, Misbehavior Report
March 18, 2012, C.O. Waugh confiscated Plaintiff's head
covering and issued a misbehavior report charging Plaintiff
with disobeying a direct order, lying, and possessing
contraband. (Dkt. No. 89-3 at ¶ 5, p. 5.) According to
C.O. Waugh, she issued the “ticket” because
Plaintiff was wearing a piece of headgear known as a
“tam, ” a large knitted hat that is worn by
members of the Rastafarian faith, and Plaintiff was
registered with DOCCS as a member of the Jewish faith.
Id. at ¶ 4.
Simmons, who is not a named Defendant, conducted
Plaintiff's disciplinary hearing on March 20 and 27,
2012. (Dkt. No. 89-2 at 91, 150-56.) On March 20, 2012,
Plaintiff pleaded not guilty to all charges and requested
that the rabbi be called as witness. Id. at 152-53.
On March 27, 2012, the facility's rabbi testified that
Plaintiff's head covering, while not an
“ordinary” head covering worn by members of the
Jewish faith, was “adequate” and “satisfied
the religious requirements for a head covering.”
Id. at 156. Based upon the rabbi's testimony,
Lieutenant Simmons found Plaintiff not guilty and the March
18, 2012, charges were dismissed. Id.
head covering was returned to Plaintiff and Lieutenant
Simmons gave Plaintiff a copy of the disciplinary disposition
with instructions for Plaintiff to show it to anyone who
stopped him and questioned him about the head covering. (Dkt.
No. 63 at ¶ 30.) Thereafter, Plaintiff was permitted to
wear his head covering and he carried the disciplinary
disposition with him at all times. (Dkt. No. 89-2 at 95.)
testified he had no further issues with C.O. Waugh relating
to his religious head covering. Id. at 92-93.
Likewise, C.O. Waugh declares she made no further efforts to
confiscate Plaintiff's tam; did not direct Plaintiff to
remove his tam; and could not recall having any further
interaction with Plaintiff regarding his headgear, or any
other aspect of his religious affiliation and practices.
(Dkt. No. 89-3 at ¶ 6.)
testified he never filed a grievance regarding the March
2012, events, including C.O. Waugh's confiscation of his
head covering. (Dkt. No. 89-2 at 59-61.)
Grievance No. ECF-25118-12
August 6, 2012, Plaintiff filed a grievance, designated
ECF-25118-12, against Sgt. DiCairano “for her
continuing harassment concerning [my] head covering.”
Id. at ¶ 33; Dkt. No. 89-5 at ¶ 6; Dkt.
No. 89-5 at 15.) According to Plaintiff, he was
“stopped” by Sgt. DiCairano on June 14, 2012,
because his head covering was “not a Jewish
Head-covering.” (Dkt. No. 89-5 at 15.) After Plaintiff
showed Sgt. DiCairano the paperwork from the March hearing
where the religious head covering was deemed approved,
DiCairano stated “that she was going to take it to
Albany.” Id. On July 29, 2012, Sgt. DiCairano
stopped Plaintiff again regarding his religious head
covering. Id. Sgt. DiCairano told Plaintiff
“that she was going to take a picture of [his]
religious head covering and send it to Albany.”
grievance, Plaintiff stated he was “tired of this
continual harassment by DiCairano” and further noted
that “such harassment [wa]s not only limited to
DiCairano, ” because he was “stopped” on
four occasions by other officers. Id. However, unlike
Sgt. DiCairano, “these other officers stopped
questioning [Plaintiff] when [he] presented the appropriate
paperwork.” Id. Plaintiff further explained:
I am listed as being of the Hebrew Faith; I have locks, and I
wear a religious head covering similar to a tam. Pursuant to
Directive 4202 (M)(2)(3), if there is a problem, it is to be
resolved by the Chaplain. Such has already been accomplished;
so why am I still being harassed by this DiCairano? More
poignantly, if I just wanted to sport the religious head
covering, I could sign up as a Rasta since I am Jamaican;
however, my intentions are based upon my religious observance
and the actions of DiCairano are interfering with such
The actions of DiCairano are harassing because she refuses to
follow the chain of command and accept the decision of the
Lieutenant and the Chaplain. There appears to be some
ulterior motive, unfathomable to me, for her actions and such
must cease as infringing upon my religious freedoms. These
unknown motives, outside the chain of command, form the basis
of my complaint for harassment[.]
Id. at 16. Plaintiff requested the following relief:
That Sergeant DiCairano be admonished, suspended for several
days and perhaps demoted for actions unbecoming of an officer
bound to follow the Directives and Rules of [DOCCS].
Moreover, DiCairano should be warned than any retaliation
will not be tolerated and will result in her immediate
termination from [DOCCS].
Id. The Inmate Grievance Resolution Committee
(“IGRC”) investigated Plaintiff's grievance,
and on August 20, 2012, determined that the actions requested
by Plaintiff were “unattainable through IGRC.”
Id. at 18. The IGRC response indicated that a
“photo was taken of head covering [and] will be sent to
central office for clarification.” Id.
Plaintiff appealed the IGRC's determination to
Superintendent Larkin. (Dkt. No. 63 at ¶
On August 21, 2012, Superintendent Larkin issued the
IGRC investigation shows that the facility chaplain has
referred this issue of religious headwear to Central Officer
Ministerial Services Office for determination.
Grievant's headwear was not confiscated, nor has grievant
been issued a misbehavior report. I find such direction is in
compliance with Directive 4202 Section M-2.3.
Grievant may wear headwear until such clarification can be
(Dkt. No. 26 at 32.) On August 27, 2012, Plaintiff appealed
the Superintendent's decision to the Central Office
Review Committee (“CORC”):
[Plaintiff] appeals this decision to the CORC because the
entire procedure resolving this grievance has been in error
and runs afoul of the Directive for Handling Harassment
grievances. At first, Directive 4040 requires that the
grievance first be sent to the Superintendent to assess the
viability of the harassment claim. If it is not a bona fide
[sic], then the superintendent is to remit the grievance to
the IGRC for regular resolution. This was not done in this
More poignantly, the IGRC could only have sent this grievance
to the Inspector General because, as found by the IGRC, they
have no power to resolve a claim of harassment. If the IGRC
is powerless to invoke a sanction or penalty for harassment,
what is the purpose of the procedure utilized herein to
entertain such a complaint?
Lastly, I filed this appeal for harassment by Sergeant
DiCairano. Why then am I being ordered to take a picture of
my religious head covering for submission to Albany? This
matter had already been resolved according to the Directive
4202 (M)(2)(3), which had formed the basis of the grievance.
Why then is the IGRC panel insisting on further
It should be noted, that the religious head covering was
confiscated and I was given an infraction. This is what led
to the determination by the Chaplain the this [sic] was an
acceptable item and the infraction was dismissed. I insist
that the appropriate action be taken and the matter be sent
to the Inspector General because this institution is
incapable and unwilling to discipline its officer for
(Dkt. No. 89-4 at 8.) On March 6, 2013, CORC unanimously
denied Plaintiff's grievance as without merit:
Upon full hearing of the facts and circumstances in the
instant case, the action requested herein is hereby denied as
without merit. CORC upholds the determination of the
Superintendent for the reasons stated.
CORC notes from further investigation that the grievant was
allowed to retain the religious head covering in question
until it was reviewed by the Director of Ministerial, Family
& Volunteer Services. Further, it was determined that it
was not approved for Jewish adherents, and the grievant
elected to mail it out of the facility when given disposal
options on 3/2/13.
. . . With respect to the grievant's appeal, CORC asserts
that the IGP Supervisor shall review the grievance complaint
and designate the grievance code and title in accordance with
Directive #4040. CORC asserts that the employees'
appropriate performance of their duties and enforcement of
the rules and regulations should not be construed as
harassment by the grievant. Further, CORC has not been
presented with sufficient evidence to substantiate harassment
or malfeasance by staff. CORC notes that the grievant may
write to whomever he wishes regarding this complaint, as long
as they are not on his Negative Correspondence and Telephone
Id. at 10.
DOCCS Directive 4202
times relevant to this action, Directive 4202(m) provided, in
1. Inmates are permitted to wear religious headcoverings in
accordance with their religious belief and as permissible in
a correctional setting. Some examples of approved religious
a. Kufi - a hemispheric head cap that can be made of cloth,
knitted or crocheted, multicolored or single colored. There
are no color prohibitions. The kufi may have a peak on top.
It must fit close to the head (hair). A kufi has no
protrusions (visor tassels, etc.).
b. Yarmulke - a close-fitting skull cap that can be made of
cloth, knitted or crocheted, multicolored or single colored.
There are no color prohibitions.
c. Tsalot-Kob - is approved religious
headwear for members of the Rastafarian religious faith. A
Tsalot-Kob is a hemispheric head cap that can be made of
cloth, knitted or crocheted, and may be multicolored or
single colored. Only the smallest size is permitted. It
measures approximately 12” long at is longest point in
order to cover all locks. It must fit as close to the locks
permit. Note: This religious headwear is only
authorized for members of the Rastafarian faith.d.
Fez - a brimless, cone shaped, flat-crowned hat that usually
has a tassel and usually is made of red felt.
e. Khimar - an approved cloth headcovering (not to cover
the face) for female members of the Islamic faith measuring
no more than 4 feet by 4 feet. It may be multicolored or
single colored however no solid black, blue, gray, or
orange will be permitted.
2. A facility Chaplain is to determine whether the
inmate's practice and the headcovering itself are
legitimate. If a Chaplain of the inmate's faith belief is
unavailable, the Ministerial Program Coordinator responsible
for the particular faith group is to make the determination.
If needed, outside religious authorities will be consulted.
3. If there is reason to believe that an inmate is wearing
a religious headcovering inappropriately, a facility
Chaplain shall be asked to further investigate. The inmate
shall be permitted to wear the head covering until the
investigation is completed.
(Dkt. No. 89-6 at 14-16 (emphasis added).) Director Morris
explains Directive 4202 was subsequently amended in or about
2014 to eliminate the faith-specific head coverings and
instead allowed inmates to wear any of the approved head
covering regardless of their designated faith. Id.
at ¶ 11. This accommodation, however, was allowed for
individual worship only. Id.
Eastern Seeks Clarification from DOCCS Regarding
Plaintiff's Head Covering
Declaration in support of Defendants' motion, Sgt.
Leifeld, who served as a member of the IGRC and conducted
interviews with Plaintiff and Sgt. DiCairano as part of the
investigation of Grievance No. ECF-25118-12, states:
the IGRC's investigation suggested that the question of
the appropriateness of the Plaintiff's “tam”
needed to be addressed, so that the Plaintiff and Eastern CF
staff had some finality and clarity regarding the issue.
Settling the question seemed likely to prevent further staff
questioning of the Plaintiff, and additional
“harassment” complaints. As a result, the IGRC
also noted on its grievance determination form that the
“tam” question would be addressed by DOCCS'
central office in Albany. (Although such decision regarding
appropriateness of specific religious items and attire are
usually made by facility-level chaplains, the facility's
own rabbi in this instance expressed a reluctance to do so
and suggested that additional guidance should come from
Albany.) As a consequence, at some point in late August, I
accompanied the Plaintiff to the ID office where photographs
could be taken of the “tam” for Albany's
(Dkt. No. 89-5 at ¶ 10.)
Declaration submitted in support of Defendants' motion,
Director Morris explains MFVS “is involved in numerous
aspects of prison life as a result of its role developing,
promulgating, interpreting, and administering DOCCS policy
concerning religious, social, and family opportunities and
practices for inmates-including, for purposes of this
lawsuit, the interpretation of ...