DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
APPEARANCES: FOR PLAINTIFF: LEROME HILSON, Pro Se
05-A-1881
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Lerome Hilson, a New York State prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983 against three employees stationed at the correctional facility in which he was confined at the relevant times alleging they violated his civil rights. In his complaint, Hilson contends that he was retaliated against for filing a grievance against a corrections officer who is not a defendant in this action, and was deprived of his First Amendment right to freely exercise his chosen religion when one of the defendants delayed in processing his request to change religions, and another defendant refused to permit him to attend religious education classes.
In response to plaintiff's complaint, defendants have filed a motion seeking dismissal of certain claims for failure to state a cause of action upon which relief may be granted. For the reasons set forth below, I recommend that the motion be granted, in part, but otherwise denied. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.") (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546 (1964). Portions of the background have also been derived from the exhibits attached to plaintiff's complaint, which may also properly be considered in connection with a dismissal motion. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-8 (2d Cir. 1991) ("[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference."); accord, Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
Plaintiff is a prison inmate being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") and is currently confined at the Great Meadow Correctional Facility ("Great Meadow"), located in Comstock, New York, where the incidents forming the basis for his claims allegedly occurred. See generally Dkt. No. 1. Plaintiff's complaint asserts separate causes of action against Corrections Officers Beaury, Payne, and Ely, all of whom were stationed at Great Meadow at the relevant times, arising from three independent incidents.
A. Retaliation by Defendant Beaury
On March 25, 2012, while being escorted within Great Meadow, plaintiff became involved in a dispute with Corrections Officers Collins and Robinson, neither of whom is a named-defendant in the action. Dkt. No. 1 at 3. Although the details of the dispute are not relevant to this action, the disagreement, in general, stemmed from plaintiff's belief that Corrections Officer Collins harassed him without provocation, and Corrections Officer Robinson conducted an inappropriate pat-search of him. Id. On March 27, 2012, plaintiff submitted a grievance complaining of those corrections officers' actions. Id.; Dkt. No. 1-1 at 1-4.
According to plaintiff, his grievance against Corrections Officers Collins and Robinson triggered retaliatory actions taken by defendant Beaury against him. Specifically, on June 19, 2012, while plaintiff was performing his assigned duties preparing breakfast trays for inmates at the facility, defendant Beaury requested cereal from plaintiff for his personal consumption. Dkt. No. 1 at 3-4. Plaintiff informed defendant Beaury that all of the cereal available on the trays was reserved for inmates. Id. at 4. Defendant Beaury responded by yelling at plaintiff, using expletives, and adding, "'Now write a Grievance on that.'" Id. Plaintiff alleges that, prior to this incident, defendant Beaury had harassed him with threats to retaliate against him for filing a grievance against Corrections Officers Collins and Robinson. Id.
As a result of that incident, defendant Beaury issued plaintiff a misbehavior report charging him with violating four prison rules. Dkt. No. 1 at 4. According to plaintiff, the misbehavior report was based on false allegations and issued in further retaliation of plaintiff's grievance against Corrections Officers Collins and Robinson. Id. at 3-4. As a result of the misbehavior report, plaintiff received thirty days of disciplinary keeplock confinement, and lost his prison job. Id. at 4. Plaintiff maintains that, while he was confined in keeplock, defendant Beaury disconnected the electrical power in his cell and prevented him from eating for four days. Id.
"Keeplock" is a form of confinement through which an "inmate is confined to his cell, deprived of participation in normal prison routine, and denied contact with other inmates." Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989); accord, Warburton v. Goord, 14 F. Supp. 2d 289, 293 (W.D.N.Y. 1998); Tinsley v. Greene, No. 95-CV-1765, 1997 WL 160124, at *2 n.2 (N.D.N.Y. Mar. 31, 1997) (Pooler, J., adopting report and recommendation by Homer, M.J.) (citing Green v. Bauvi, 46 F.3d 189, 192 (2d Cir. 1995)). "The most significant difference between keeplock and general population inmates is that the former do not leave their cells for out-of-cell programs unless they are a part of mandatory educational programs and general population inmates spend more time out of their cells on weekends." Lee v. Coughlin, 26 F. Supp. 2d 615, 628 (S.D.N.Y. 1998).
B. Converting to Islam
In late June 2012, plaintiff submitted a formal request to defendant Payne, the Protestant Chaplain at Great Meadow, to change his religion from Protestant to Islam. Dkt. No. 1 at 6. On August 2, 2012, defendant Payne wrote plaintiff a memorandum acknowledging his request to change his religion from Protestant to Islam, and attaching a form to be signed with an instruction to return it for processing to effectuate the change. Dkt. No. 1-1 at 75. Plaintiff submitted the completed form, entitled "CHANGE OF RELIGIOUS DESIGNATION FORM," to defendant Payne on August 9, 2012. Dkt. No. 1-1 at 76. On August 14, 2012, defendant Payne also signed the form, and six days later the Chaplain of Islam at Great Meadow completed the form. Id.
The record does not include a copy of the change of designation form used by plaintiff in June to request the change. Attached to plaintiff's complaint, however, are two identical affidavits from Damon Vincent, an inmate working as a Chaplain Clerk at Great Meadow. Dkt. No. 1-1 at 70-73. In those affidavits, one of which is typed and the other handwritten, inmate Vincent states that he recalls plaintiff submitting two change of religion forms during the months of July and August 2012. Dkt. No. 1-1 at 70, 73.
Plaintiff alleges that, because he submitted his request to change religions in late June 2012, but did not receive a response from defendant Payne until August 14, 2012, he was precluded from participating in Islamic religious practices, including fasting during Ramadan and attending seven Juma prayer services. Dkt. No. 1 at 6. In support of their motion to dismiss, defendants have submitted a copy of DOCCS Directive 4202, which governs changes in inmate religious designations. Dkt. No. 15-1 at 14. According to that document, which is dated January 18, 2008, inmates could expect a request to change religions to be processed within thirty days. Id. at 14.
According to publicly available sources, the version of DOCCS Directive 4202 submitted by defendants in support of their motion was superseded by a revised version dated July 24, 2012. State of New York Department of Corrections and Community Supervision DIRECTIVE, "Religious Programs and Practices," available at http://www.doccs.ny.gov/directives/4202.pdf (last visited July 31, 2014). According to the revised version of the directive, DOCCS inmates can now expect the change in religious designation to "be accomplished within 14 business days." Id.
C. Missed Call-Outs
The third set of circumstances giving rise to this action centers upon defendant Ely's failure to provide plaintiff with call-outs for religious education classes on "numerous" occasions, including, specifically, on October 13, 2012 and November 3, 2012. Dkt. No. 1 at 8. On those dates, defendant Ely was a block officer at Great Meadow whose duties included providing inmates with call-outs. Id. Plaintiff's grievance complaining of missing the call-outs on October 13, 2012, and November 3, 2012, was ultimately determined in his favor by the superintendent at Great Meadow on December 18, 2012. Dkt. No. 1-1 at 84-87.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on May 28, 2013, and was thereafter granted leave to proceed in forma pauperis. Dkt. Nos. 1, 6. In his complaint, plaintiff asserts claims against defendants Beaury, Payne, and Ely, in their individual and official capacities, under the First and Eighth Amendments, and seeks damages as well as injunctive relief. See generally Dkt. No. 1.
On September 27, 2013, defendants filed a motion seeking dismissal of certain of plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 15. In their motion, defendants request dismissal of (1) all claims asserted against them for damages in their official capacities and (2) plaintiff's First Amendment free exercise claims asserted against defendants Payne and Ely. See generally Dkt. No. 15-1. In addition, while noting that plaintiff has failed to formally move for a preliminary injunction, defendants contend that plaintiff's complaint fails to satisfy the requirements for granting that relief. Id. at 5-7. Plaintiff has since responded in opposition to defendants' motion. Dkt. No. 17.
Defendants' motion, which is now fully briefed, 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. Standard of Review Governing Motions to Dismiss Pursuant to Rule 12(b)(6)
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 using a 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 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Iqbal, 556 U.S. 677-78 (quoting Fed. R. Civ. P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. See id. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). However, the tenet that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions. Iqbal, 556 U.S. at 678.
To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008). 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) (alterations omitted).
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, 551 U.S. at 94 ("'[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 (1976)) (citation omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cnty. Dep't of Soc. Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally.").
B. Eleventh Amendment Immunity
As was noted above, the three named defendants in this action are sued in both their individual and official capacities. Dkt. No. 1 at 1-2. In their motion, defendants request dismissal of the damage claims asserted against them in their official capacities. Dkt. No. 15-1 at 3.
The Eleventh Amendment protects a state against suits brought in federal court by "private parties seeking to impose a liability which must be paid from public funds in the state treasury." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Cory v. White, 457 U.S. 85, 90-91 (1982); Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993). This absolute immunity, which states enjoy under the Eleventh Amendment, extends to both state agencies and state officials sued for damages in their official capacities when the essence of the plaintiff's claim seeks recovery from the state as the real party in interest. See, e.g., Daisernia v. State of N.Y., 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.) ("[A] suit which seeks a money judgment 'which must be paid from the state treasury is barred by the Eleventh Amendment,' even though it is nominally asserted against an individual official." (quoting Edelman, 415 U.S. at 663)); see also Richards v. State of N.Y. App. Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing, inter alia, Cory v. White, 457 U.S. 85, 89-91, (1982)). "To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan, 996 F.2d at 529; see also Hafer v. Melo, 502 U.S. 21, 25 (1991) ("Suits against state officials in their official capacity therefore should be treated as suits against the State.").
Plaintiff's damage claims in this action against the named-defendants in their official capacities are, in reality, claims against the State of New York, and therefore are subject to dismissal. Daisernia, 582 F. Supp. at 798-99. Accordingly, I recommend that those claims be dismissed with prejudice.
While plaintiff's damage claims asserted against defendants in their official capacities are subject to dismissal, any claims for injunctive relief against them would not be precluded by the Eleventh Amendment, and, accordingly, could proceed. In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) ("A plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state officers. . . in their official capacities, provided that his complaint (a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective."). In this case, however, plaintiff does not seek injunctive relief in connection with his first three claims. Dkt. No. 1 at 5, 6, 8. Because plaintiff's fourth cause of action is subject to dismissal, see Part III.D., post, there is no basis upon which plaintiff's claims against defendants in their official capacities may survive the pending motion.
C. Plaintiff's First Amendment Claims
At the center of defendants' motion to dismiss are plaintiff's First Amendment free exercise claims asserted against defendants Payne and Ely. Dkt. No. 15-1 at 3-5. Defendants contend that the claim against defendant Payne is subject to dismissal because "plaintiff has not alleged any reason for the delay in processing his request [to change his religious designation], and it can be assumed that any delay was for administrative purposes." Id. at 4. With respect to defendant Ely, defendants argue that, assuming defendant Ely did deny plaintiff an opportunity to attend religious education classes on two occasions, that is not sufficient to give rise to a cognizable First Amendment claim. Id. at 4. In his response, plaintiff reiterates the allegations set forth in his complaint, including with respect to his retaliation claim against defendant Beaury, which is not the subject of defendants' motion. See generally Dkt. No. 17.
1. Legal Principles Applicable to Free Exercise Claims
While inmates confined within prison facilities are by no means entitled to the full gamut of rights guaranteed under the United States Constitution, the free exercise clause of the First Amendment does afford them at least some measure of constitutional protection. See Pell v. Procunier, 417 U.S. 817, 822 (1974) ("In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."). The protections afforded under the First Amendment, however, are not without limits, and the task of defining the contours of that right in a prison setting requires striking a delicate balance between the rights of inmates and the legitimate interests of prison officials tasked with maintaining prison security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987); Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003); Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990).
A plaintiff asserting a First Amendment free exercise claim must, as a threshold matter, "show . . . that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006). In evaluating this factor, the court must be wary of "'question[ing] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.'" McEachin v. McGuinnis, 357 F.3d 197, 201 (2d Cir. 2004) (quoting Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699 (1989)). Instead, a court should consider only whether the particular plaintiff has "demonstrate[d] that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." Ford, 352 F.3d at 588 (quotation marks omitted). Once a plaintiff satisfies this burden, defendants must then "bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct." Salahuddin, 467 at 275. "[T]he burden[, however,] remains with the prisoner to 'show that these penological concerns were irrational.'" Ford, 352 F.3d at 595 (quoting Fromer v. Scully, 874 F.2d 69, 74 (2d Cir. 1989)) (alteration omitted).
I acknowledge that the Second Circuit yet to decide whether the "substantial burden" test survived the Supreme Court's decision in EmptDiv. v. Smith, 494 U.S. 872, 887 (1990). See Holland v. Goord, --- F.3d ----, No. 13-2694, 2014 WL 3360615 (2d Cir. July 10, 2014) ("It has not been decided in this Circuit whether, to state a claim under the First Amendment's Free Exercise Clause, a 'prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs.'" (quoting Salahuddin, 467 F.3d at 274-75)); Salahuddin, 467 F.3d at 275 n.5 (declining to address whether "a prisoner's First Amendment free-exercise claim is [] governed by the 'substantial burden' threshold requirement"). Because, however, the Second Circuit continues to apply the test, even when squarely faced with the question of its continued viability, I will assume a plaintiff must establish a substantial burden on his sincerely held beliefs to demonstrate a prima facie First Amendment free exercise claim. See, e.g., Holland, 2014 WL 3360615, at *4 ("[W]e need not decide the issue here, as even assuming the continued vitality of the substantial burden requirement, our precedent squarely dictates that [the plaintiff's] religious exercise was unconstitutionally burdened[.]"); Salahuddin, 467 F.3d at 274-75 ("The prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs."); accord, Smith v. Goord, 541 F. App'x 133, 134 (2d Cir. 2013); Washington v. Gonyea, 438 F. App'x 23, 26 (2d Cir. 2013); Hall v. Ekpe, 408 F. App'x 385, 388 (2d Cir. 2010).
At this juncture the court next inquires into whether a defendant's conduct, which allegedly deprives the plaintiff of his free exercise rights, is reasonably related to some penological interest. Ford, 352 F.3d at 594; see also Washington, 538 F. App'x at 26 ("Even if Defendants-Appellees substantially burdened [the Plaintiff-Appellant]'s sincerely held religious beliefs, their actions do not constitute a constitutional deprivation if they were reasonably related to legitimate penological interests." (quotation marks omitted)). To determine whether a challenged regulation or decision by prison officials is reasonable, courts must evaluate the following four factors:
Indeed, the Second Circuit has held that "[a]n individualized decision to deny a prisoner the ability to engage in religious exercise is analyzed in the same ways as a prison regulation denying such exercise." Salahuddin, 467 F.3d at 274 n.4.
[(1)] [W]hether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; [(2)] whether prisoners have alternative means of exercising a burdened right; [(3)] the impact on the guards, inmates, and prison resources of accommodating the right; and [(4)] the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.
Salahuddin, 467 F.3d at 274 (footnote omitted).
2. Plaintiff's Claim Against Defendant Payne
Plaintiff alleges that defendant Payne violated his First Amendment rights by delaying the processing of his request to change his religious designation. Dkt. No. 1 at 6. Plaintiff contends that as a result of that delay, he was unable to participate in some religious exercises, including fasting during Ramadan and attending prayer services on seven days. Id.
As was noted above, at the time of the incident, DOCCS Directive 4202, concerning religious programs and practices, contemplated that an inmate's request to change religions would be processed and acted upon within thirty days of the request. Dkt. No. 15-1 at 14. In this instance, plaintiff alleges that he submitted his formal request to change his religion "[d]uring the end of the Month of June [2012]." Dkt. No. 1 at 6. The change was effectuated on August 20, 2012, after both defendant Payne and the Islam Chaplain at Great Meadow signed the necessary form. Dkt. No. 1-1 at 76. Thus, liberally construing plaintiff's complaint, he alleges that the delay in processing his request to change religions amounted to fifty-one days, from June 30, 2012, to August 20, 2012. This delay is exactly three weeks beyond the thirty days contemplated in the version of DOCCS Directive 4202 in effect at the time. Although defendants "assume[] that [the] delay was for administrative purposes," nothing in plaintiff's complaint or elsewhere in the record supports this assumption. Dkt. No. 14-1 at 4. Defendants have otherwise neglected to offer any reason for the delay in processing plaintiff's request. Under these circumstances, and mindful of plaintiff's allegation that, as a result of the delay in processing his request, he was precluded from participating in Ramadan and attending seven prayer services, I find that plaintiff has alleged sufficient facts plausibly suggesting that his religious beliefs were substantially burdened by defendant Payne. Accordingly, I recommend that defendants' motion to dismiss the First Amendment claim asserted against defendant Payne be denied.
Although plaintiff does not challenge the constitutionality of the registration process in general, I note, as defendants do in support of their motion, that the requirement that a prison inmate register his religious affiliation is one that serves legitimate penological interests. Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir. 1997). The Second Circuit has explained that
[r]egistration eliminates speculation and guesswork on the part of prison officials and makes it less likely that a prisoner will manipulate the system by asserting various religions at different times. Registration also allows prison officials to gauge the interest in any particular religion on the part of the inmate population and thus decide whether a 'congregation' should be allowed. Registration puts the institution on notice that certain religious accommodations will likely be sought and thereby provides the institution with time to consider if and how to implement them. This, in turn, makes such accommodations more likely and thereby reduces the circumstances in which judicial intervention will be needed. In short, registration places, at most, a slight burden on an inmate's right to religious freedom while serving as an important and beneficial 'bright line' that enables prison officials to ascertain the seriousness of the inmate's religious commitment and respond accordingly.
Jackson-Bey, 115 F.3d at 1097.
The court recognizes the possibility, based on the record, that plaintiff did not file the proper form requesting a change in religious designation until sometime in July or August of 2012. Dkt. No. 1-1 at 76. The attachments to plaintiff's complaint include (1) an affidavit from the clerk for the Islam Chaplain at Great Meadow, in which the clerk stated that plaintiff submitted "[t]wo [c]hange of [r]eligion forms" in July and August of 2012; and (2) a copy of a completed change-of-religious-designation form, which is signed by plaintiff on August 9, 2012. Dkt. No. 1-1 at 76. Although plaintiff alleges that he submitted the form at the end of June 2012, he did not submit a copy of that form (with the June date) to the court. Dkt. No. 1 at 6. Mindful that, at this juncture, plaintiff's allegations must be accepted as true, I have calculated the time for delay based upon the assumption that plaintiff submitted the form to DOCCS officials on June 30, 2012.
As was noted above, on July 24, 2014, which post-dates the commencement of this action, DOCCS Directive 4202 was revised to advise inmates that they should expect their request for a religious designation change to "be accomplished within 14 business days." State of New York Department of Corrections and Community Supervision DIRECTIVE, "Religious Programs and Practices," available at http://www.doccs.ny.gov/directives/4202.pdf (last visited July 31, 2014).
Although the court takes no position with respect to the ultimate merits of plaintiff's claims at this juncture, it is worth noting that the plausibility of plaintiff's claim against defendant Payne is more tenuous the proof establishes that his request was filed in late July or early August. If that is proven to be the case, then plaintiff's request was acted upon by DOCCS officials and effectuated within the thirty-day response time period envisioned by DOCCS Directive 4202.
3. Plaintiff's Claim Against Defendant Ely
In his third cause of action, plaintiff alleges that defendant Ely caused him to "[m]iss [n]umerous [c]all outs for [e]ducation [classes] in the Islamic [r]eligion, and [n]umerous congregational [p]rayers," and specifically identifies October 13, 2012, and November 3, 2012, as dates on which he missed religious education classes. Dkt. No. 1 at 8. Although defendants are correct that allegations of two missed call-outs for religious programming over a period of three weeks is not constitutionally significant, plaintiff alleges defendant Ely caused him to miss "numerous" classes and services. Because I am obligated to accept plaintiff's factual allegations as true at this stage of the proceedings, and because there is nothing in the record suggesting defendant Ely was justified in precluding plaintiff from his call-outs, I find that plaintiff has alleged a cognizable constitutional claim against that defendant. Accordingly, I recommend that the court deny defendants' motion to dismiss plaintiff's First Amendment claim asserted against defendant Ely.
See Simmons v. Adamy, 987 F. Supp. 2d 302, 309 (W.D.N.Y. 2013) ("[A]lthough there is no bright-line rule concerning the frequency with which missing religious services and classes become a burden of constitutional significance, limits on an inmate's religious exercise which prevent attendance at classes or services once a week or less have routinely been held not to comprise a burden on religious exercise." (citing cases)).
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D. Preliminary Injunction
In his complaint plaintiff seeks a temporary restraining order and preliminary injunction, but requests that relief by purporting to assert it as a distinct cause of action. Dkt. No. 1 at 9. A request for a temporary restraining order or preliminary injunction, however, is not an independently cognizable cause of action, but instead a form of interim relief. While a complaint may seek an injunction as a form of relief, any application for interim injunctive relief, pursuant to Rule 65 of the Federal Rules of Civil Procedure, must comply with the rules governing the local practice of this court. N.D.N.Y. L.R. 7.1(f), 65.2. The local rules require that a party seeking a temporary restraining order do so either by a notice of motion or order to show cause. N.D.N.Y. L.R. 7.1(f). Moreover, motions for a temporary restraining order or preliminary injunction must be supported by the submission of a memorandum of law and an affidavit. N.D.N.Y. L.R. 5.1(a), 7.1(a), (f). In this case, because plaintiff's request for injunctive relief is not an independently cognizable cause of action, and plaintiff has failed to comply with the rules governing motion practice, his "fourth cause of action" is ripe for dismissal.
In any event, even if I were to overlook the deficiencies accompanying plaintiff's request for injunctive relief, I would recommend it be denied. Plaintiff's request is directed toward anticipated, future retaliation by defendants "and/or their 3 [p]arty actors." Dkt. No. 1 at 9. Because the relief plaintiff seeks is unrelated to the allegations contained in his complaint, his request should be denied. Ariola v. LaClair, No. 07-CV-0057, 2007 WL 1026365, at *1 (N.D.N.Y. Apr. 2, 2007) (Sharpe, J.); Chavis v. Ryan, No. 05-CV-0100, 2007 WL 446440, at *1 (N.D.N.Y. Feb. 7, 2007) (Scullin, J.). Moreover, plaintiff is also precluded from seeking injunctive relief against a non-party. Ariola, 2007 WL 1026365, at *1; Chavis, 2007 WL 446440, at *1.
For all of these reasons, I recommend that plaintiff's fourth cause of action be dismissed.
E. Whether to Permit Amendment
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991); see also Fed. R. Civ. P. 15(a) ("The court should freely give leave when justice so requires."); see also Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where court could "not determine that the plaintiffs would not, under any circumstances, be able to allege a civil RICO conspiracy"). An opportunity to amend is not required, however, where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice."). Stated differently, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). In this instance, the deficiencies identified in this report with respect to plaintiff's damage claims asserted against defendants in their official capacities are substantive in nature, and extend beyond the mere sufficiency of plaintiff's complaint. Accordingly, because I find that any amendment regarding those claims that might be offered by plaintiff would be futile, I recommend against granting him leave to amend.
IV. SUMMARY AND RECOMMENDATION
The portions of plaintiff's complaint seeking damages against the defendants in their official capacities, and a temporary restraining order and preliminary injunction, are subject to dismissal. Plaintiff's other claims, however, against defendants Payne and Ely in their individual capacities have been adequately pleaded, and are not subject to dismissal at this procedural stage.
Based upon the foregoing, it is hereby respectfully
RECOMMENDED that defendants' motion to dismiss (Dkt. No. 15) be granted, in part, and that plaintiff's damage claims asserted against the defendants in their official capacities, as well as his fourth cause of action, be DISMISSED, but that the motion otherwise be DENIED.
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 and recommendation upon the parties in accordance with this court's local rules. Dated: August 13, 2014
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge