Opinion
Civil Action No. 9:09-CV-1363 (GLS/DEP)
07-03-2012
SELAM SELAH, Plaintiff, v. BRIAN FISCHER, Commissioner; JUSTIN TAYLOR, Superintendent; KAREN BELLAMY, Director of DOCCS Inmate Grievance Program; T. KILLIAN, Senior Chaplain; MARK LEONARD, Director of Ministerial and Family Services; ABUNA FOXE, DOCCS Rastafarian Religious Advisor; CHERYL MORRIS, Director of Ministerial Services; FR. E. MANTZOURIS, Greek Orthodox Christian Chaplain; and New York DOCCS, Defendants.
APPEARANCES: FOR PLAINTIFF: SELAM SELAH, Pro Se FOR DEFENDANTS: HON. ERIC SCHNEIDERMAN
Office of the Attorney General
State of New York
Department of Law
OF COUNSEL: MEGAN M. BROWN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Selam Selah, a New York State prison inmate, has commenced this action against the New York State Department of Corrections and Community Supervision ("DOCCS"), the agency's Commissioner, and eight other DOCCS employees, pursuant to 42 U.S.C. § 1983, alleging deprivation of his civil rights. In his complaint plaintiff asserts that the defendants have violated his constitutional rights to equal protection and free religious exercise, as well as those guaranteed under the Religious Land Use and Institutionalized Person Acts ("RLUIPA"), 42 U.S.C. § 2000cc et seq., by failing to accommodate his religious beliefs and permit him to practice his chosen religion, while members of other religious sects, including Rastifarians, are treated more favorably.
Currently pending before the court in connection with this action is a motion brought by the defendants seeking dismissal of plaintiff's complaint for failure to state a cause of action upon which relief may be granted. In their motion defendants argue that plaintiff's complaint fails to comply with governing pleading requirements and that certain of the claims set forth are not legally cognizable. In addition, defendants assert that they are entitled to qualified immunity from suit. For the reasons set forth below, I recommend that plaintiff's claims against the DOCCS be dismissed, but that defendants' motion otherwise be DENIED. I. BACKGROUND
In light of the procedural posture of the case, the following recitation of facts has been drawn principally from plaintiff's amended complaint, Dkt, No. 84, as well as the materials submitted by the plaintiff in opposition to the defendants' motion, Dkt. No. 113, to the extent they are consistent with the allegations set forth in his complaint. See Tejada v. Mance, No. 9:07-CV-0830, 2008 WL 4384460, at *4 n.27 (N.D.N.Y. Sep. 22, 2008) (Mordue, C.J.) (citing, inter alia, Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004), vacated in part on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004)). Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Plaintiff is a prison inmate entrusted to the custody of the DOCCS. See generally Amended Complaint (Dkt. No. 84). While at the time this action was commenced plaintiff was confined within the Gouverneur Correctional Facility ("Gouverneur"), located in Gouverneur, New York, see Complaint (Dkt. No. 1) ¶ 2, he was later transferred into the Orleans Correctional Facility, located in Albion, New York, Amended Complaint (Dkt. No. 84) ¶ 34. He is currently incarcerated at the Clinton Correctional Facility, located in Dannemora, New York. See Dkt. entry of 1/19/12. Plaintiff's inter-facility transfers, however, do not appear to impact upon his claims, which address agency-wide DOCCS policies and practices. Id.
It appears that plaintiff has filed at least one prior action relating to the failure of the DOCCS or its predecessor, the Department of Correctional Services, to recognize his religion and provide him with accommodation including, inter alia, a kosher diet, and that at least at one point the agency entered into an agreement with the plaintiff to recognize his religion and permit him to receive a kosher diet. Selah v. Goord, No. 00-CV-0644, 2002 WL 73231, at * 1 (N.D.N.Y. Jan. 2, 2002).
Plaintiff subscribes to the religious tenets of the Ethiopian Orthodox Christian Faith, which is also known as Ethiopian-Egyptian Coptic Orthodox Christianity. Amended Complaint (Dkt. No. 84) ¶ 21; see also Complaint (Dkt. No. 1) p. 20. Plaintiff's religion has many similarities to Rastafarianism with the exception that its teachings acknowledge Jesus Christ as the Messiah, whereas Rastafarians do not. Amended Complaint (Dkt. No. 84) ¶ 21.
Plaintiff's complaint in this action centers upon defendants' alleged failure to recognize and accommodate his religion. Plaintiff maintains that this failure is manifested through defendants' 1) refusal to permit plaintiff and others of his religious persuasion to possess and display head gear, a prayer shawl, a prayer girdle, a prayer rug, and other appropriate religious attire and artifacts consistent with their beliefs; 2) refusal to allow members of plaintiff's sect to observe and commemorate seven specified major holy days and nine minor holy days; 3) denial of the opportunity to participate in congregate religious services and education; 4) failure to provide meals consistent with old testament dietary laws; 5) failure to permit the plaintiff and his fellow Ethiopian Orthodox Christians to wear beards and dreadlocks or braids; and 6) refusal to exempt him from work on Saturdays and Sundays. Plaintiff maintains that despite his complaints to various prison officials within the DOCCS hierarchy, his requests for accommodation have not been honored, while Rastafarians are provided all or most of the accommodations now sought.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on December 7, 2009. Dkt. No. 1. Since inception of the action the court has been besieged with numerous and oftentimes repetitive serial filings by the plaintiff requesting various forms of relief, resulting in a procedural history which, to date, includes some 124 docket entries spanning over the two years during which the case has been pending, despite the fact that issue has not yet been joined by the filing of an answer. In addition to the standard motion for leave to proceed in forma pauperis, Dkt. No. 2, that history includes the filing of six motions for a temporary restraining order and/or preliminary injunction, three requests for the appointment of pro bono counsel, and an application for certification of the matter as a class action. See Dkt. No. 5, 6, 69, 74, 86, 89, 109, 115, and 122.
On September 14, 2011, with leave of court, plaintiff filed an amended complaint - the currently operative pleading in the case. Dkt. No. 84. Plaintiff's complaint, as amended, names as defendants DOCCS Commissioner Brian Fischer; DOCCS Rastafarian Religious Advisor Abuna Foxe; the agency's Greek Orthodox Christian Chaplain, Fr. E. Mantzouris; Cheryl Morris, the DOCCS Director of Ministerial Services; Karen Bellamy, the Director of the DOCCS Inmate Grievance Program; Justin Taylor, the Superintendent at Gouverneur; T. Killian, the Senior Chaplain at Gouverneur; and Mark Leonard, the DOCCS Director of Ministerial and Family Services, all of whom are sued in both their individual and official capacities, as well as the DOCCS itself. Id. Plaintiff's complaint alleges violation of his right to freely exercise his chosen religion, as guaranteed under the First Amendment to the United States Constitution, the denial of equal protection, in violation of the Fourteenth Amendment, and infringement of his statutory rights under the RLUIPA, and seeks various forms of monetary, declaratory, and injunctive relief. Id.
Both the signed version of the plaintiff's amended complaint and the proposed pleading proffered by Selah in support of his motion for leave to file that amended complaint appear to be lacking pages 2 and 3 and corresponding allegations of paragraphs 3 through a portion of paragraph 7. See Dkt. Nos. 68-1, 84.
In his complaint plaintiff purports to assert claims on behalf of himself and other similarly situated inmates. His request for class certification, however, has been denied by the court. See Memorandum-Decision and Order dated May 19, 2010 (Dkt. No. 9) pp. 3-5.
In response to plaintiff's complaint defendants have moved seeking its dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 111. In support of that motion, defendants argue that 1) plaintiff's amended complaint fails to meet the governing pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure; 2) plaintiff has failed to demonstrate the existence of a plausible claim under any of the constitutional or statutory provisions cited; 3) plaintiff's claims against the DOCCS are subject to dismissal on the basis of sovereign immunity and the Eleventh Amendment; and 4) in any event the individual defendants are entitled to qualified immunity from suit. Id. Plaintiff has since submitted papers in opposition to defendants' motion. Dkt. No. 113.
Defendants' motion, which is now been fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Dismissal Motion Standard
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, 1964-65 (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see also id. While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. 679, 129 S. Ct. at 1950.
In deciding a Rule 12(b)(6) dismissal motion, though the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party, Hudson v. Palmer, 468 U.S. 517, 541 n.1, 104 S. Ct. 3194, 3208 n.1 (1984) (citing cases); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003), cert. denied, 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.), it is "'not bound to accept as true a legal conclusion couched as a factual allegation'", Iqbal, 129 S. Ct. at 1950 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim that is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974) (alteration in original).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976) (internal quotations omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citations omitted); Kaminski v. Comm'r of Oneida Cnty. Dep't of Social Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011).
B. The DOCCS as a Named Defendant
In their motion defendants argue that plaintiff's claims against the DOCCS are in reality brought against the State and are therefore subject to dismissal on the basis of sovereign immunity.
In its decision rendered on September 7, 2011 the court noted that the DOCCS was not amenable to suit and ordered plaintiff's damage claims against that agency dismissed. See Memorandum-Decision and Order, dated September 7, 2011 (Dkt. No. 82) p. 7.
The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 3057-58 (1978). This absolute immunity which states enjoy under the Eleventh Amendment extends to state agencies such as the DOCCS. Salvodon v. New York, No. 11 Civ. 2190(PAC)(KNF), 2012 WL 1694613, at *3 (S.D.N.Y. May 14, 2012); Bloom v. Fischer, No. 11-CV-6237L, 2012 WL 45470, at *3 (W.D.N.Y. Jan. 3, 2012) (citing Whitfield v. O'Connell, 09 Civ.1925, 2010 WL 1010060, at *4 (S.D.N.Y. Mar. 18, 2010) ("[B]ecause Section 1983 does not abrogate a state's sovereign immunity and the State of New York has not waived its immunity, claims against DOCS for both monetary and injunctive relief are barred under the Eleventh Amendment") (citations omitted), aff'd, 402 Fed. App'x 563 (2d Cir. 2010), cert. denied, –– U.S. ––, 131 S. Ct. 2132 (2011)) (other citation omitted); see also Richards v. State of New York Appellate Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing Pugh and Cory v. White, 457 U.S. 85, 89-91, 102 S. Ct. 2325, 2328-29 (1982)). Accordingly, plaintiff's claims against the DOCCS are subject to dismissal.
In a broader sense, this portion of defendants' motion implicates the sovereign immunity enjoyed by the State. As the Supreme Court has reaffirmed the sovereign immunity enjoyed by the states is deeply rooted, having been recognized in this country even prior to ratification of the Constitution, and is neither dependent upon nor defined by the Eleventh Amendment. Northern Ins. Co. of New York v. Chatham County, 547 U.S. 189, 193, 126 S. Ct. 1689, 1693 (2006).
In addition to damages, plaintiff's amended complaint seeks declaratory and injunctive relief, which would not necessarily be barred by sovereign immunity or the Eleventh Amendment. See United States v. Georgia, 546 U.S. 151, 160, 126 S. Ct. 877, 882 (2006). "[A]ctions involving claims for prospective declaratory or injunctive relief are permissible provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action." Davidson v. Scully, 148 F. Supp. 2d 249, 254 (S.D.N.Y. 2001) (quotation and citations omitted); see also Koehl v. Dalsheim, 85 F.3d 86, 89 (2d Cir. 1996) (finding that it was error for district court to dismiss claim for injunctive relief against superintendent where plaintiff had sufficiently alleged a claim for medical indifference, noting superintendent had overall responsibility to ensure that prisoners' basic needs were met and that if plaintiff can prove his contentions, he may well be entitled to injunctive relief.). Because the Commissioner of the DOCCS is named as a defendant, both individually and in his official capacity, and thus the agency would be subject to any declaratory and injunctive relief entered against him in his official capacity, I find it unnecessary to also include the DOCCS as an additional named defendant in the action and will therefore recommend dismissal of all claims against that agency.
C. Compliance with Rules 8 and 10
Defendants next argue that plaintiff's amended complaint fails to comply with the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. As was previously noted, Rule 8 of the Federal Rules of Civil Procedure, which sets forth the general pleading requirements applicable to most complaints filed in the federal courts, requires that such a pleading include "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a); see In re WorldCom, Inc., 263 F. Supp. 2d 745, 756 (S.D.N.Y. 2003). The purpose of Rule 8 "'is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.'" Hudson v. Artuz, 1998 WL 832708, *1 (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C.1977))) (other citation omitted). A complaint asserting only bare legal conclusions is insufficient. Iqbal, 556 U. S. at 678, 129 S. Ct. at 1950 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). Instead, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. A claim will have "facial plausibility when the plaintiff pleads [sufficient] factual content [to] allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
As was previously observed, when opposing plaintiff's motion for leave to file his amended complaint defendants did not object to the sufficiency of the proposed pleading under Rules 8 and 10. See Memorandum-Decision and Order, dated September 7, 2011 (Dkt. No. 82) at p. 6.
In the end, Rule 8 contemplates only notice pleading; under the rule's mandates, a complaint must sufficiently apprise a defendant as to the nature of plaintiff's claims with sufficient clarity to allow that defendant to answer and prepare for trial. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). To the extent that greater detail is required in order to effectively defend against such claims, "it is the role of the litigation tools of discovery and summary judgment to weed out unmeritorious suits." In re Natural Gas Commodity Litig., 337 F. Supp. 2d 498, 506 (S.D.N.Y. 2004) (citation omitted).
To be sure, a complaint lodged by a pro se plaintiff can properly be dismissed under appropriate circumstances for failing to comply with the applicable pleading requirement that it be "short and plain." Philips, 408 F.3d at 130; Pickering-George v. Cuomo, No. 1:10-CV-771, 2010 WL 5094629, at * 4 n.8 (N.D.N.Y. Dec. 8, 2010) (Suddaby, J.) (citing cases). "Dismissal, however, is 'usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Hudson, 1998 WL 832708, *2 (citation omitted).
Turning to Federal Rule of Civil Procedure 10, I note that this provision imposes a requirement whose intent is largely pragmatic, requiring, among other things, that a pleading consist of separately numbered paragraphs "each of which shall be limited as far as practicable to a statement of a single set of circumstances[.]" Fed. R. Civ. P. 10(b). Rule 10(b) is designed to assist litigants and the court by allowing the interposition of a responsive pleading and the corresponding framing of issues with sufficient clarity to allow an orderly and meaningful presentation of a plaintiff's claims and any corresponding defenses, either on motion or at trial. See Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999).
Analysis of plaintiff's amended complaint, in the face of defendants' motion, is informed not only by the salutary purposes to be served by these pleading requirements, but additionally by two equally important principles. First, it is a well-established requirement that a complaint prepared by a pro se litigant is entitled to liberal construction in his or her favor. Salahuddin v. Cuomo, 861 F.2d at 42-43. Additionally, courts generally favor adjudication of cases on their merits, rather than on the basis of a technicalities or procedural niceties. Id. at 42; see also Zdziebloski v. Town of East Greenbush, New York, 101 F. Supp. 2d 70, 72 (N.D.N.Y. 2000)(citing Salahuddin); Upper Hudson Planned Parenthood, Inc. v. Doe, 836 F.Supp. 939, 943 n.9 (N.D.N.Y. 1993).
A counterweight to these considerations, which militate in favor of lenity toward a plaintiff, is the challenge presented by plaintiff's lengthy and verbose complaint, particularly to the defendants who must frame a proper responsive pleading, as well as to the court in discerning the contours of the plaintiff's claims. "[U]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Salahuddin v. Cuomo, 861 F.2d at 42; see also Ceparano v. Suffolk Cnty., No. 10-CV-2030 (SJF) (ATK), 2010 WL 5437212, at *3 (E.D.N.Y. Dec. 15, 2010).
In this instance, while plaintiff's original complaint suffered from his failure to include numbered paragraphs, as demanded by Rule 10, this deficiency has been cured, and plaintiff's amended complaint, as defendants acknowledge, does contain allegations that are separately numbered. Though many of the paragraphs contained in plaintiff's amended complaint are prolix and contain more than the "single set of circumstances" contemplated under Rule 10(b), in the court's view the amended complaint is sufficiently parsed out to permit formulation of proper answer.
The court has also reviewed the allegations set forth in plaintiff's complaint to determine whether they adequately apprise the defendants of the nature of his claims. Though plaintiff's amended complaint is indeed unnecessarily lengthy, laced with unnecessary verbiage, and accompanied by random and seemingly unorganized attachments, it provides fair notice to defendants of the claims being asserted. Distilled to its core, the complaint discloses the existence of cognizable claims that defendants have interfered with plaintiff's free exercise of his religious beliefs in violation of the First Amendment and RLUIPA, and additionally that he has been denied equal protection based upon the differences between the treatment afforded to members of his religion and others within the DOCCS system. Where, as here, a complaint, though burdened with irrelevant detail, does articulate, recognizable, alleged unconstitutional behavior, dismissal is not warranted. See Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (per curiam), cert. denied, 411 U.S. 935, 93 S. Ct. 1911 (1973) with these guiding principles as a backdrop. I have concluded that plaintiff's complaint, though by no means a model of clarity, gives fair notice of the claims being asserted in the action and therefore satisfies the minimal pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Shomo v. State of New York, 374 Fed. App'x 180, 2010 WL 1628771 (2d Cir. 2010) (cited in accordance with Fed. R. App. P. 32.1) (citing Phillips, 408 F.3d at 130).
The bases for plaintiff's claims are sufficiently delineated in his pleading, in which he asserts violations of the First Amendment's Free Exercise Clause, the Equal Protection Clause of the Fourteenth Amendment, and the RLUIPA. The facts forming the underpinnings of those claims are also set forth, including the religious accommodations plaintiff has requested but has been denied. In sum, when read with the requisite deference owed to the plaintiff as a pro se inmate, albeit a somewhat seasoned litigator, I conclude that plaintiff's amended complaint meets the requirements of Rules 8 and 10, and therefore recommend denial of the portion of defendants' motion asserting his failure to comply with those rules.
D. Legal Sufficiency of Plaintiff's Religious Exercise Claims
In their motion, citing Iqbal and Twombly, defendants argue that plaintiff's amended complaint, with its conclusory allegations, fails to state a claim upon which relief may be granted. That argument is only halfheartedly stated, and does not include any analysis of plaintiff's constitutional and statutory claims. The court has nonetheless reviewed the allegations of plaintiff's complaint with an eye toward determining whether his claims pass muster under the governing Rule 12(b)(6) standard, discussed above.
As a starting point, I note that it is well-established that prison inmates do not shed all rights upon entry into the prison system. While inmates confined within prison facilities are by no means entitled to the full panoply of rights guaranteed under the United States Constitution, including its First Amendment, the Free Exercise Clause of that amendment does afford them at least some measure of constitutional protection, including of their right to participate in congregate religious services. See Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974) ("In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system."); see also Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) ("It is well established that prisoners have a constitutional right to participate in congregate religious services.") (citing cases). That right extends under certain circumstances beyond mere attendance at congregate religious services, and also prohibits adoption of polices or practices that burden an inmate's sincerely held religious beliefs unless they are reasonably related to legitimate penological interests. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400 (1987). Courts must analyze free exercise claims asserted by prison inmates by evaluating "1) whether the practice asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely held; 2) whether the challenged practice of the prison officials infringes upon the religious belief; and 3) whether the challenged practice of the prison officials furthers some legitimate penological objective." Farid v. Smith, 850 F.2d 917, 926 (2d Cir.1988) (citations omitted).
"In Salahuddin, the Second Circuit left open the question of whether a plaintiff bringing a free exercise claim under the First Amendment must make a threshold showing that his sincerely held religious beliefs have been 'substantially burdened.'" DeBlasio v. Rock, No. 9:09-CV-1077, 2011 WL 4478515, at *21 n.21 (N.D.N.Y. Sep. 26, 2011) (McAvoy, S.J.); Pilgrim v. Artus, No. 9:07-CV-1001, 2010 WL 3724883, at * 13 n.10 (N.D.N.Y. 2010) (Treece, M.J.) (citing Salahuddin v. Goord, 467 F.3d 263, 274-75 n.5 (2d Cir. 2006) and Pugh v. Goord, 571 F. Supp. 2d 477, 497 n.10 (S.D.N.Y. 2008) (noting that the Second Circuit has twice declined to answer the question)), report and recommendation adopted, 2010 WL 3724881 (N.D.N.Y. Sep 17, 2010) (Sharpe, J.).
Similar protections are accorded to inmates under the RLUIPA, a statutory enactment forming the basis for some of plaintiff's claims. That statute provides, in pertinent part, that
[n]o government shall impose a substantial burden on the religious exercise of a person residing in or42 U.S.C. § 2000cc-1(a). The familiar principles informing the analysis of plaintiff's free exercise claim under the First Amendment are similar to those applicable to his RLUIPA cause of action, although the two claims are analyzed under slightly different frameworks. See Salahuddin v. Goord, 467 F.3d at 264.
confined to an institution . . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of a burden on that person - 1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.
Plaintiff's complaint also asserts an equal protection claim, arguing that he and other members of his designated religion are treated differently by the defendants than Rastafarian inmates despite the similarity of their religious beliefs. The Equal Protection Clause directs state actors to treat similarly situated persons alike. See City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). To prove a violation of the Equal Protection Clause, a plaintiff must demonstrate that he or she was treated differently than others similarly situated as a result of intentional or purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.1995) (citing, inter alia, McCleskey v. Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756, 1767 (1987)). The plaintiff must also show that the disparity in treatment "cannot survive the appropriate level of scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not reasonably related to [any] legitimate penological interests." Phillips, 408 F.3d at 129 (quoting Shaw v. Murphy, 532 U.S. 223, 225, 121 S. Ct. 1475 (2001) (internal quotation marks omitted)).
Plaintiff's claims of interference with his free religious exercise rights under the First Amendment and the RLUIPA, and an alleged Equal Protection violation based upon the difference between defendants' treatment of members of his religion and Rastafarians, are plausibly stated in his amended complaint. Plaintiff has alleged the existence of specific policies and practices within the prison facilities in which he has been housed prohibiting the growing of beards and wearing of dreadlocks or braids, the refusal to permit possession and wearing religious head coverings, the failure to permit the possession of prayer rugs, religious shawls and religious girdles, the failure to provide a kosher diet mandated by the tenets of his religion, the failure to permit the observance of specified religious holidays, and the failure to excuse the plaintiff from working on Saturdays and Sundays. While in response defendants undoubtedly will either deny those allegations or assert that those policies or practices are justified by legitimate penological concerns, and in the end may well prevail in defending against those claims, the allegations contained within plaintiff's complaint assert sufficient facts to permit the court to conclude that plausible claims have been stated under the First Amendment, the RLUIPA, and the Equal Protection Clause of the Fourteenth Amendment. I therefore recommend the defendants' motion seeking dismissal plaintiff's claims as insufficiently stated on the merits be denied.
Denial of the right of inmates to wear religious head gear, for example, can rise to a level sufficient to establish a constitutional violation absent a showing that the policy relates to legitimate penological concerns. Excell v. Burge, No. 9:05-CV-1231, 2008 WL 4426647, at *7 (N.D.N.Y. Sept. 25, 2008) (Kahn, J. and DiBianco, M.J.) (citing Benjamin v. Coughlin, 905 F.2d 571, 578-79 (2d Cir.), cert. denied, 498 U.S. 951 (1990)).
E. Qualified Immunity
In their motion defendants also assert their entitlement to qualified immunity from suit.
Qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as 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 (1982) (citations omitted). "In assessing an officer's eligibility for the shield, 'the appropriate question is the objective inquiry whether a reasonable officer could have believed that [his or her actions were] lawful, in light of clearly established law and the information the officer[ ] possessed." Kelsey v. Cnty. of Schoharie, 567 F.3d 54, 61 (2d Cir. 2009) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692 (1999)). The law of qualified immunity seeks to strike a balance between the need to hold government officials accountable for irresponsible conduct and the need to protect them from "harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009) .
In Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), the Supreme Court "mandated a two-step sequence for resolving government official's qualified immunity claims." Pearson, 555 U.S. at 232, 129 S. Ct. at 815-16. The first step requires the court to consider whether, taken in the light most favorable to the party asserting immunity, the facts alleged show that the conduct at issue violated a constitutional right, Kelsey, 567 F.3d at 61, with "the second step being whether the right is clearly established", Okin v. Village of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 430 n.9 (citing Saucier). Expressly recognizing that the purpose of the qualified immunity doctrine is to ensure that insubstantial claims are resolved prior to discovery, the Supreme Court retreated from the prior Saucier two-step mandate in its later decision, in Pearson concluding that because "[t]he judges of the district courts and courts of appeals are in the best position to determine the order of decisionmaking [that] will best facilitate the fair and efficient disposition of each case", those decision makers "should be permitted to exercise their sound discretion in deciding which of the . . . prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." Pearson, 555 U.S. at 236, 242, 129 S. Ct. at 818, 821. In other words, as recently emphasized by the Second Circuit, the courts "are no longer required to make a 'threshold inquiry' as to the violation of a constitutional right in a qualified immunity context, but we are free to do so." Kelsey, 567 F.3d at 61(citing Pearson, 129 S. Ct. at 821) (emphasis in original).
In making the threshold inquiry, "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. Saucier, 533 U.S. at 201, 121 S. Ct. 2151.
In Okin, the Second Circuit clarified that the "'objectively reasonable' inquiry is part of the 'clearly established' inquiry", also noting that "once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for the [government] officer who violated the clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful." Okin, 577 F.3d at 433, n.11 (citation omitted).
Indeed, because qualified immunity is "an immunity from suit rather than a mere defense to liability. . .", Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806 (1985), the Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation." Pearson, 555 U.S. at 231, 129 S. Ct. at 815 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 524 (1991) (per curiam)).
For courts engaging in a qualified immunity analysis, "the question after Pearson is 'which of the two prongs . . . should be addressed in light of the circumstances in the particular case at hand.'" Okin, 577 F.3d 430 n.9 (quoting Pearson). "The [Sauciertwo-step] inquiry is said to be appropriate in those cases where 'discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.'" Kelsey, 567 F.3d at 61 (quoting Pearson, 129 S. Ct. at 818).
Qualified immunity is a defense not often particularly well-suited for a disposition in a motion to dismiss under Rule 12(b)(6). Undeniably, the legal rights asserted in plaintiff's complaint are and were well-known and established at the relevant times. Salahuddin v. Goord, 467 F.2d at 277; see also Amaker v. Goord, No. 06-CV-490A(Sr), 2010 WL 2595286, at * 10 (W.D..Y. Mar. 25, 2010), report and recommendation adopted, 2010 WL 2572972 (W.D.N.Y. Jun. 23, 2010). Unfortunately, the question of whether prison officials in the positions of the defendants would reasonably have known that their actions toward the plaintiff, as alleged in his complaint, abridged those rights is inextricably intertwined with the merits of plaintiff's claims such that, at least at this early procedural juncture, it cannot be said that the defendants are entitled to qualified immunity. See Amaker, 2010 WL 2595286, at * 10; Dicks v. Binding Together, Inc., No. 03 Civ. 7411, 2007 WL 1462217, at * 10 (S.D.N.Y. May 18 2007), aff'd in part, 382 Fed. App'x 28 (2d Cir. 2010) (summary order).
IV. SUMMARY AND RECOMMENDATION
With the passage of more than two years since the filing of this action and many procedural stops along the way, plaintiff has now filed an amended complaint which, though unquestionably verbose, is separated into paragraphs, sets forth allegations placing the defendants on notice of the claims being asserted, and contains sufficient facts demonstrating that at least plausible claims under the First and the Fourteenth Amendments to the Constitution and the RLUIPA have been stated. With the exception of his claims against the DOCCS, an agency of the state entitled to sovereign immunity and the protections of the Eleventh Amendment, I recommend a finding that plaintiff's claims are plausibly stated and thus not subject to dismissal at this early procedural juncture. Additionally, I recommend a finding that defendants' claim of entitlement to qualified immunity cannot be determined at this juncture. Based upon the foregoing, it is hereby respectfully
RECOMMENDED that defendants' motion to dismiss plaintiff's complaint (Dkt. No. 111) be GRANTED, in part, and that his claims against the DOCCS be DISMISSED, but that the motion be DENIED in all other respects.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report, recommendation, and order upon the parties in accordance with this court's local rules.
________________________
David E. Peebles
U.S. Magistrate Judge
Dated: July 3, 2012
Syracuse, NY