REPORT-RECOMMENDATION

GARY L. SHARPE, United States Magistrate Judge

I. INTRODUCTION

This matter was referred to the undersigned for a Report-Recommendation by the Hon. Frederick J. Scullin, Jr., Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Currently before the court is the defendants' motion to dismiss (Dkt. No. 27). Plaintiff, pro se, Michael Verdal ("Verdal") responded to the motion (Dkt. No. 38). Verdal brings this action under 42 U.S.C. § 1983 claiming that the defendants violated his First, Eighth and Fourteenth Amendment rights. He also claims that the defendants conspired to discriminate against him under 42 U.S.C. § 1985. Specifically, Verdal claims that the defendants violated his right to exercise his freedom of religion when they issued him misbehavior reports and confined him to the Special Housing Unit ("SHU") for his refusal to shave his facial hair and get a haircut. After reviewing Verdal's claims and for the reasons set forth below, the defendants' motion to dismiss should be granted.

II. Facts

Verdal alleges that he was punished because he violated Directive 4914. Verdal entered state prison on November 29, 2000. He claims that the sentencing judge issued an order stating that he should not be required to shave his facial hair or receive a haircut because he was Jewish. Verdal provides the court with a copy of the alleged "order" which is a form entitled "Sentence and Commitment" dated November 13, 2000.

Verdal claims that despite the order, he was directed to submit to a haircut and shave upon his arrival at the state prison. Upon his refusal to comply with the order, Sergeant Myer prepared an "Administrative Segregation Recommendation" (Amended Compl. Unnumbered Ex.). The recommendation form authorized his confinement to the SHU, and stated that he was "in possession of the hair order and IRC confirmed the facial hair order" (Amended Compl. ¶ 11, Unnumbered Ex.) Lieutenant Wentzell presided over Verdal's hearing in regards to the December 11, 2000, recommendation. Although, difficult to read, it appears that the recommendation to administrative segregation was affirmed.

On February 6, 2001, another misbehavior report was issued for failure to follow a direct order to shave. Rabbi Franks refused to testify. After a hearing, Verdal was found guilty. On March 16, 2001, he was again charged with refusal to shave. Captain Lee presided over the hearing, and apparently denied a request that Rabbi Frank testify. Verdal was found guilty of the charge.

III. Discussion A. Legal standard

Federal Rules of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." In other words, the court should dismiss the complaint pursuant to Rule 12(b)(6), if it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); S.E.C. v. U.S. Environmental, Inc., 155 F.3d 107, 110 (2d Cir. 1998). "The task of the court in ruling on a Rule 12(b)(6) motion `is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)). Therefore, in analyzing a motion to dismiss, the facts alleged by a plaintiff are assumed to be true and must be liberally construed in the light most favorable to him. See e.g., Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991).

The Court must "confine its consideration `to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. West Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).

"Moreover, `when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,' the court may nevertheless take the document into consideration in deciding the defendants' motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (1995) (citation omitted). With this standard in mind, the court turns to the sufficiency of Verdal's claims.

B. First Amendment

Verdal claims that his First Amendment rights were violated when he was disciplined for refusing to shave and cut his hair when he arrived at the state prison. In deciding free exercise claims of prisoners, the Supreme Court has held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Moreover, it is well settled in the Second Circuit that "great deference" must be afforded to prison officials who are responsible for maintaining order in prisons. Fromer v. Scully, 874 F.2d 69, 73 (2d Cir. 1989); Young v. Coughlin, 866 F.2d 567, 570 (2d Cir. 1989).

In Fromer, the plaintiff, an Orthodox Jew, challenged the one inch beard rule. The court examined the regulation by considering four factors, based on the United States Supreme Court's analysis in Turner, 482 U.S. 78, 107 S.Ct. 2254, and O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), including: 1) whether there was a valid, rational connection between the prison regulation and the legitimate governmental interest used to justify it; 2) whether there were alternative means of exercising the right in question that remained open to prison inmates; 3) the impact that accommodation of the inmate's asserted constitutional right would have on guards and other inmates, and generally on the allocation of prison resources; and, 4) the absence of ready alternatives to the prison regulation in question. Fromer, 874 F.2d at 72, 74-75 (citations omitted). Although Fromer was challenging a prison beard length regulation, "the Second Circuit found that the Section of the DOCS directive requiring male inmates to receive an initial shave to be constitutional." Solomon v. Chin, 1997 U.S. Dist. Lexis 4297, at *8 (S.D.N.Y. 1997) (citing Fromer, 874 F.2d 69, 72 (2d Cir. 1989). "Thus, in the Second Circuit, male inmates. . . . are precluded from asserting claims with respect to an initial shaving of their faces." Id.

In this case, Verdal claims that Directive 4914 violates his First Amendment right. However, accepting the allegations of the complaint as true, Verdal cannot prove any set of facts that would entitle him to the relief sought. While Verdal alleges in his complaint that he was issued misbehavior reports not only for refusing to submit to an initial shave but also for refusing to cut his hair, the documentary evidence he provides belies this assertion. The "Administrative Recommendation" and the two misbehavior reports specifically state that he was being punished for refusing the initial shave. The only reference to his hair in the record is written by Captain Lee in the "Administrative Segregation Recommendation" and states the following: "you were in possession of the hair order and IRC confirmed the facial hair order." Apparently, the recommendation in terms of his facial hair was affirmed. However, there does not appear to be any other reference to a haircut. Although Verdal alleges that he had an order from Supreme Court Judge Kahn which allegedly prohibited his facial hair from being cut, the document which he purports to be an Order, is a request and comes from a form entitled "Sentence and Commitment." Verdal's claims appear to be contradicted by the very documentary evidence which he attached to his amended complaint. As previously stated, the Second Circuit has found that the Section of the DOCS directive requiring male inmates to receive an initial shave to be constitutional and as such, this court recommends that Verdal's First Amendment claim should be dismissed.

C. Eighth and Fourteenth Amendment Claims

In addition to arguing that enforcement of Directive 4914 violated his First Amendment right, Verdal maintains that by enforcing an unconstitutional policy, the defendants also violated his rights under the Eighth and Fourteenth Amendments. More specifically, Verdal contends that he was found guilty of a disciplinary infraction, and that he was sentenced to administrative segregation and the SHU in violation of the Constitution. In addition, he maintains that such a conviction and subsequent sentence violated his due process and equal protection rights, and his right to be free from cruel and unusual punishment.

Furthermore, Verdal claims that the defendants interfered with a witness. However, the documents that Verdal attached to his complaint show that Rabbi Frank refused to testify for one of the hearings, and that he was interviewed during a subsequent hearing. Verdal's only other assertion is that by pressing the matter and punishing him for noncompliance, the defendants have implemented an unconstitutional policy. Since the Second Circuit has found that an initial shave is constitutional, Verdal has failed to state a claim for which relief can be granted. Accordingly, this court recommends that Verdal's Eighth and Fourteenth Amendment claims be dismissed.

D. Conspiracy claim

Verdal claims that the defendants conspired against him to deny his civil rights. To establish a claim under Section 1985(3), a plaintiff must allege and prove four elements: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and, (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Emma v. Schenectady City School Dist., 28 F. Supp.2d 711, 725 (N.D.N.Y. 1998). In this case, Verdal's reference to a conspiracy states that defendants Griffin, Lee, and Crouch conspired "in that there was a single plan designed to achieve an objective . . . to impose upon the plaintiff to deny his religious beliefs . . ." (Amended Compl. ¶ 23). Verdal states that there was a "meeting of the minds" and that they conspired "to discriminate" (Amended Compl. ¶¶ 26-27). However, he offers nothing more than this bald assertion with no factual support.

Without more, these allegations are conclusory and unsupported by evidence and must fail. See e.g., Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock, but have no meaning). And, of course, the court has already recommended dismissal of the underlying complaints which are the alleged objects of the conspiracy. Accordingly, this court finds that Verdal's conspiracy claim should be dismissed.

E. Qualified Immunity

Qualified immunity protects government officials who perform discretionary functions in the course of their employment. It shields them from liability for money damages where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). It also protects officials from "the burdens of costly, but insubstantial, lawsuits." Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999) (quotation marks and internal citations omitted).

The question of whether qualified immunity will protect a public official depends upon "`the objective legal reasonableness' of the action assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (citations omitted). Furthermore, the contours of the right violated must be sufficiently clear that a reasonable official might understand that his actions violate that right. Id. at 640, 107 S.Ct. at 3039; Keane, 196 F.3d at 332.

In light of the above standard, it is clear that public officials are entitled to qualified immunity if: (1) their actions did not violate a clearly established statutory or constitutional right; or (2) it was objectively reasonable for them to believe that their actions did not violate such a right. See Keane, 196 F.3d at 332. Additionally, the Second Circuit recently determined that a court may dismiss a claim based upon qualified immunity without first deciding the substantive claims therein. See Horne v. Coughlin, 191 F.3d 244 (2d Cir. 1999). Also lurking within this decision is the proposition that the qualified immunity issue should be addressed before the substance of a claim.

In this case, Verdal claims that the defendants violated his freedom of religion when they issued misbehavior reports for refusing to shave, and placed him in administrative segregation. This court finds that there was no clearly established right to avoid an initial shave and as such, it was objectively reasonable for the defendants to enforce Directive 4914.

Accordingly, as an additional basis to grant dismissal, this court finds that the defendants are entitled to qualified immunity, and this court recommends that the defendants' motion to dismiss based on qualified immunity should be granted.

WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED, that the defendants' motion to dismiss be GRANTED in its entirety; and it is further

ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN (10) days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).