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Thomas v. Waugh

United States District Court, N.D. New York

February 28, 2018

ERROL THOMAS, Plaintiff,
v.
F. WAUGH, LEIFEL D, RONALD D. LARKIN, CHERYL MORRIS, JOHN N. ANTONELLI, BLY, Defendants.

          ERROL THOMAS Plaintiff, pro se.

          HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Counsel for Defendants.

          OF COUNSEL: KYLE W. STURGESS, ESQ. Assistant Attorney General.

          REPORT-RECOMMENDATION AND ORDER

          THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Pro 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.[1]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.)

         Defendants 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.[2]) 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.

         Defendants' 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.

         II. FACTUAL BACKGROUND

         At all 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.

         A. March 18, 2012, Misbehavior Report

         On 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.

         Lieutenant 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.

         The 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         B. Grievance No. ECF-25118-12

         On 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.” Id.

         In his 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.[3] 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 observance.
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 ¶ 14.[4]) On August 21, 2012, Superintendent Larkin issued the following decision:

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 made.

(Dkt. No. 26 at 32.[5]) 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 case.
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 clarification?
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 insubordination.

(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 List.

Id. at 10.

         C. DOCCS Directive 4202

         At all times relevant to this action, Directive 4202(m) provided, in part:

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 headcoverings are:
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.

         D. Eastern Seeks Clarification from DOCCS Regarding Plaintiff's Head Covering

         In his 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 review.

(Dkt. No. 89-5 at ¶ 10.[6])

         In her 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 ...


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