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holding this standard is applied to claims brought directly under the First Amendment
Summary of this case from Johnson v. RockOpinion
98-CV-6260CJS(F)
February 14, 2003
Thomas Brown, pro se, Rochester, NY, for the plaintiff.
Gary M. Levine, Assistant Attorney General, New York State Attorney General's Office, Rochester, NY, for the defendant.
DECISION AND ORDER
Before the Court are both defendants' motion [docket #92] and plaintiff's motion [docket #95] for summary judgment on plaintiff's complaint (docket #1), which alleges that defendants were violating his First Amendment rights by failing to offer him a therapeutic religious alternative meal consistent with his Muslim faith. For the reasons stated below, the Court grants defendants' motion in part and denies plaintiff's motion.
Plaintiff amended his complaint on June 26, 1998, by eliminating from the caption of his complaint the New York State Department of Corrections as a defendant. In all other respects, however, the complaint is the same as originally filed.
SUMMARY JUDGMENT STANDARD
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
BACKGROUND
"When a party has moved for summary judgment on the basis of asserted facts supported as required by Federal Rule of Civil Procedure 56(e) and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992). Here, defendants have filed a statement of facts as required by the local rules, and plaintiff has not. The Court will deem defendants' statement of facts admitted, except as otherwise indicated, below.
In his complaint, plaintiff claimed that the Superintendent of Orleans Correctional Facility, Sally B. Johnson ("Johnson"), Assistant Superintendent Carol A. Preiss ("Preiss"), and Director of Food Services David J. Florian ("Florian") (collectively "defendants"), violated his First Amendment rights "to adhere to practices of the religion Islam . . . by refusing to allow and provide proper meals consistent with known laws of the Islamic faith. . . ." Complaint at 3.
Plaintiff arrived at the Orleans Correctional Facility as a prisoner on December 11, 1991. Some time prior to October 16, 1992, a low cholesterol and low fat diet was prescribed for him and a notation of the prescription made in his Ambulatory Health record. The New York State Department of Correctional Services ("DOCS") offers seventeen therapeutic diets, including a low cholesterol, low fat diet, for inmates who, for medical reasons, have had such diet prescribed by a physician. DOCS has published, through Directives 4310 and 4311, a Therapeutic Diet Manual setting forth, inter alia, operational procedures governing the provision of therapeutic diet and providing guidance to health care providers and food service personnel in the ordering and provision of these meals. When a doctor prescribes a therapeutic diet for a DOCS inmate, the diet order must be in writing and submitted to the Food Service Supervisor.
According to the New York State Department of Correctional Services inmate locator, plaintiff was released to parole on May 5, 2000. The Court's docket sheet reflects an address for plaintiff in Rochester, New York.
On September 6, 1995, plaintiff saw Dr. Hussain, a member of the Orleans Correctional Facility health care staff. Plaintiff requested that he modify his prescription for a low cholesterol, low fat diet, to include no meat. He repeated that request in another appointment with Dr. Hussain on October 11, 1995. Nurse Barbara Castricone ("Castricone") spoke with the dietician on October 11, 1995, and was informed that there was no supplement for meat in plaintiff's diet. Castricone passed this information on to Dr. Hussain. Johnson stated in her affidavit that Dr. Hussain did not order a meatless diet for plaintiff. Johnson aff. at 2. Johnson's conclusion is, however, contradicted by copies of three diet orders submitted by defendants in Exhibit E of the affidavit of Sylvia Josh, Esq. One such order is dated March 4, 1996, and prescribes "no meat." Another is dated April 30, 1996, and prescribes low fat, low cholesterol, and "no red meat (your choice)." The third one is dated September 26, 1996, and prescribes low fat, low cholesterol, and "no meat."
The doctor's first name is not given in defendants' statement of facts.
The dietician with whom Nurse Castricone spoke is not identified in defendants' statement of facts. However, the Court notes that Florian claims to have spoken with Castricone on October 10, 1995, and to have told her that a no meat diet was not available. See Florian aff. at 4.
This "supplement" is not explained in defendants' statement of facts. Possibly this is a typographical error and the word should be "substitute."
On November 29, 1995, plaintiff filed an Inmate Grievance Complaint requesting that a meatless diet be provided to him according to the doctor's orders. The grievance was denied on the ground that there was no doctor's order prescribing a meatless diet and because the facility did not have a standard meatless therapeutic diet. Johnson affirmed the denial, and plaintiff appealed. The appeal was denied by the Central Office Review Committee ("CORC") on January 17, 1996.
Presumably, this is in reference to the April 30, 1995, diet order, but defendants' statement of facts does not contain a specific reference to the doctor or the order.
Defendants do not raise an issue concerning exhaustion of administrative remedies in their motion.
On February 10, 1996, plaintiff filed a second grievance requesting that the decision from the first grievance be reversed. He also complained, in the second grievance, of a conspiracy among staff members to deny him a meatless diet. The Inmate Grievance Review Committee granted the grievance with clarification, recommending that plaintiff speak with Dr. Hussain and attempt to clarify the diet prescribed for him. Johnson denied the grievance, stating that a low fat, low cholesterol diet had been ordered for plaintiff and that no standard diet existed that was low fat, low cholesterol and excluded meat, and no such diet had been prescribed for plaintiff. CORC also reviewed this grievance and denied it as being without merit.
Plaintiff returned to medical personnel regarding his diet on February 20, March 8, 9 and 13, April 29 and May 15, 1996, and again on March 3, 1997. Plaintiff alleges in his complaint that on March 4, 1996, he received a doctor's order for no meat in his diet. Complaint at 5.
As previously mentioned, above, defendants submitted copies of dietary orders attached to the affidavit of Sylvia Josh, Esq., Exhibit E, with "no meat" dietary orders dated March 4, April 30 and September 26, 1996.
In November 1996, DOCS made available at all general confinement facilities the Religious Alternative Meal ("RAM"). This program provides an inmate with an alternative entrée for every meal, except breakfast. The RAM meets the special dietary needs of many religious groups, including Muslims, and provides a lower fat diet. Additionally, a special meal plan is offered to Muslims during the entire month of Ramadan: one meal prior to sunrise; and one meal following sunset.
On October 31, 1996, plaintiff signed a Religious Designation Form changing his declared religion from Protestant/Presbyterian to Muslim/Islam. Plaintiff then began removing himself from his therapeutic diet during the month of Ramadan. However, this, he claimed, caused his cholesterol levels to increase. Brown dep. at 79 (attached to Josh aff. at Ex. D). Further, plaintiff stated that, unlike the meals in the general population food lines, the meals cooked for the low fat, low cholesterol diet are cooked differently and are not "laden in fat." Id. at 77.
On August 19, 1997, plaintiff filed an Inmate Grievance complaint requesting that the RAM be made available to him in combination with his therapeutic diet ("combination meal"). Following an investigation, plaintiff's grievance was denied and it was recommended that he consult with his doctor in order to make an informed choice between the RAM and his therapeutic diet. Plaintiff wrote to Preiss and she responded that his grievance had been forwarded to Johnson for a response. Johnson subsequently denied the grievance on the ground that there was no provision for making the RAM available in combination with a therapeutic diet. She also suggested that plaintiff consult with his physician to make an informed decision regarding his dietary choices. Plaintiff's appeal was denied on October 1, 1997.
Plaintiff filed his original complaint in this Court on June 17, 1998. In his complaint, plaintiff argues that defendants' actions "were systemic constitutional violations of Equal Protection Laws of plaintiff's right to practice religion guaranteed by the 1st and 14th Amendments of the United States [Constitution]." Complaint at 8. Plaintiff further argues that defendants' actions have
On June 26, 1998, plaintiff filed a one-page amended "complaint" that only amended the caption of his original complaint to delete any reference to the New York State Department of Corrections as a defendant.
The Court notes that the Equal Protection Clause is contained in the Fourteenth Amendment to the Constitution, not the First, as might be implied by plaintiff's inartfully-pleaded complaint.
alienated [him] from the Muslim community and also from the General Population of prisoners every other prisoner is entitled to receive a choice of menu for religious reason or not . . . [and] [his] original request . . . [would] improve the quality of life (health conditions) physically by lowering his cholesterol level which is the purpose of his medical needs and spiritually by conforming to plaintiff's religion by the removal of by-products of adrenaline apprehension of the slaughter which is seen by the animals, chemical impurities from (epinephrine) excess blood remaining in the body from the violent slaughter and/or preservatives.
Plaintiff's religious beliefs do not prevent him from eating "Blessed meats." Thomas Brown letter to Carole A. Preiss (Aug. 30, 1997) at 1 (attached as Exhibit 4 to Josh aff.).
Complaint at 9. Plaintiff seeks a declaratory judgment, five million dollars in damages and three million dollars in punitive damages against defendant Florian, with one million dollars in punitive damages against defendants Johnson and Preiss, injunctive relief, continued court supervision of the injunction, and costs. Complaint at 10.
DISCUSSION
Plaintiff has sued defendants in both their official and their personal capacities. The Court previously determined that defendants could not be sued in their official capacities. Decision and Order, Brown v. Johnson, 98-CV-6260CJS (Jul. 1, 1998). Thus, the Court will address plaintiff's allegations that defendants, in their personal capacities, violated his First Amendment right to freedom of religion and his Fourteenth Amendment Equal Protection rights.
Plaintiff has not made any claim under the Religious Freedom Restoration Act ("RFRA") that Congress passed in 1993 to restore the "compelling governmental interest" test in the wake of Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), which held that a lower scrutiny test should be applied to facially neutral laws of general application.
In order to prove a claim under 42 U.S.C. § 1983, a plaintiff must show that a person, acting under color of state law, deprived him of rights secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981).
It is well established that while "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," Turner v. Safley, 482 U.S. 78, 84 (1987), prison restrictions that implicate prisoners' constitutional rights may be upheld if they are "reasonably related to legitimate penological interests," id. at 89; see also Purnell v. Lord, 952 F.2d 679, 682 (2d Cir. 1992).
Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir. 2002). Even before its decision in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), in which the Court held that a lower scrutiny test should be applied to facially neutral laws of general application, the Supreme Court had held that the compelling interest standard, otherwise applicable in First Amendment analysis, should not be applied in free exercise cases involving prisoners. O'Lone v. Shabazz, 482 U.S. 342, 349 (1987). Instead, under the First Amendment, prison regulations imposing burdens on an inmate's free exercise of religion need only be reasonably related to a legitimate penological interest. Id. This standard is still applied to claims brought directly under the First Amendment. See Daumutef, 297 F.3d at 112. The Supreme Court, in Turner v. Safley, 482 U.S. 78, 89-90 (1987), determined that the factors to be considered are: (1) whether there is a rational relationship between the regulation and the legitimate government interests asserted; (2) whether the inmates have alternative means to exercise the right; (3) the impact that accommodation of the right will have on the prison system; and (4) whether ready alternatives exist which accommodate the right and satisfy the governmental interest. In further explaining and applying the Turner test, the Supreme Court held, in a later case,
in Turner we adopted a unitary, deferential standard for reviewing prisoners' constitutional claims: "When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89. Under this standard, four factors are relevant. First and foremost, "there must be a `valid, rational connection' between the prison regulation and the legitimate [and neutral] governmental interest put forward to justify it." Ibid. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). If the connection between the regulation and the asserted goal is "arbitrary or irrational," then the regulation fails, irrespective of whether the other factors tilt in its favor. 482 U.S. at 89-90. In addition, courts should consider three other factors: the existence of "alternative means of exercising the right" available to inmates; "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;" and "the absence of ready alternatives" available to the prison for achieving the governmental objectives. Id., at 90.
Shaw v. Murphy, 532 U.S. 223, 229-30 (2001).
While this standard was established in the context of First Amendment issues, it is also relevant to the assessment of equal protection claims in the prison setting. As to such claims, the reasonableness of the prison rules and policies must be examined to determine whether distinctions made between religious groups in prison are reasonably related to legitimate penological interests. See Benjamin v. Coughlin, 905 F.2d 571, 575 (2d Cir. 1990) (citing Williams v. Lane, 851 F.2d 867, 877 (7th Cir. 1988)). The Court must determine whether "the . . . groups are so similar that discretion has been abused." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977). Because plaintiff alleges a claim directly under the First Amendment, and makes an Equal Protection argument as well, the Court will apply the "reasonably related" standard in reviewing his claims.
In Kahane v. Carlson, 527 F.2d 492, 496 (2d Cir. 1975), the Court of Appeals held that prison officials were responsible for providing "a diet sufficient to sustain the prisoner in good health without violating the Jewish dietary laws, without otherwise mandating specific items of diet." Kahane has never been overruled and has been cited by defendants in their memorandum of law and by the courts in this Circuit. See also, Jackson v. Mann, 196 F.3d 316 (2d Cir. 1999) (citing to Kahane for the proposition that an inmate is entitled to a reasonable accommodation of his religious beliefs); Benjamin v. Coughlin, 905 F.2d 571, 579 (2d Cir. 1990) ("Prisoners have a right `to receive diets consistent with their religious scruples.'" (quoting Kahane)).
Defendants have filed affidavits in support of their motion, one of which is Florian's, who as indicated previously is Director of Food Services at Orleans Correctional Facility and responsible for preparation of all meals, including the seventeen different therapeutic diets offered to inmates with documented medical conditions. Florian aff. at 2. He is also responsible for meals served to the general population, meals boxed and delivered to inmates confined to their cells and meals boxed and sent out to public service work crews, along with snacks boxed and sent to the hospital every day for inmates on a diabetic diet, as well as the RAM.
Florian supervises approximately 150 inmate kitchen workers and eight DOCS employees, and among those, states that there is a constant turnover. Florian relates that early meals are served at 6:00 a.m., 10:45 a.m. and 5:15 p.m. with the regular meals served at 7:00 a.m., 11:30 a.m. and 5:45 p.m. At the early meals, the therapeutic diets are served in the cafeteria reserved for those meals. Id. at 3. Across the kitchen and serving areas, an early meal is served to food service workers, inmates who have jobs requiring them to be on duty during the regular meal time, and handicapped inmates. The availability of the early meal, Florian states, is strictly limited due to security concerns; however, he does not outline what those concerns are. Id. When the early meal is finished, the therapeutic diet line is broken down and set up for the regular meal lines. Florian also states in his affidavit that DOCS does not offer a meatless diet, but that an inmate is free to not eat the meat should he so choose. Id. at 4. Florian said he provided that information to Nurse Castricone on October 10, 1995.
Florian states that he received an order for plaintiff to be on a low cholesterol, low fat diet. Id. at 4. Thereafter, plaintiff filed his first grievance requesting a meatless diet. Florian points out that an inmate has the right to remove himself from the therapeutic diet at any time. Further, that if he chose to eat the RAM, plaintiff could, "with careful selection of the other dishes[,] meet his low cholesterol/low fat diet needs, thereby meeting his religious diet requirements and his medical diet requirements." Id. at 6. Further, Florian claims that plaintiff can obtain dietary information from health care providers at the correctional facility, or the registered dieticians employed by DOCS. Id. at 4.
During his pretrial deposition, plaintiff agreed that if he could sit down with a doctor and have a diet created for him, so that he knew what he could and could not eat, given his high cholesterol, that would be helpful. Brown dep. at 7. Plaintiff also conceded that during the month of Ramadan, he takes himself off his therapeutic diet and is given a special religious diet, and that he receives that special religious diet on other holy days, too. Id. at 15. Additionally, he testified that the doctor he saw was also a Muslim. Id. at 45. Plaintiff also testified that he does not eat the meat provided in his diet. Id. at 34. Since beginning the therapeutic diet, plaintiff stated that his cholesterol level has decreased approximately sixty points to around 230, whereas a "normal" cholesterol level would be between 200 and 210. Id. at 36.
During his deposition, plaintiff claimed that a Jewish inmate, Jay Feigenbaum, was on the same therapeutic diet as his, but obtained a kosher substitute for the meat entrée. Id. at 41-43, 53. Plaintiff also testified that when he tried to obtain the same kosher meal, which he said would satisfy his Muslim religious meal requirements, he was told he could not, since he was not Jewish. Id. at 89. He argues that, "I don't think it should be a choice that I have to choose between my religion and my health when it's readily available that both could be satisfied." Id. at 64.
Defendants also filed an affidavit from Elizabeth Culkin ("Culkin"), the Assistant Director of Nutritional Services for the New York State Department of Correctional Services, who is a certified dietician and nutritionist. Culkin states that plaintiff, by choosing his meals carefully off of the main line, could meet the requirements of his therapeutic diet. She gives examples of what he could eat, and not eat, from the general population meal line, such as substituting dry bread to compensate for vegetables with a butter or other sauce, and, when the RAM entrée is cheese or eggs, choosing instead the regular entrée, or eating only a half portion of the cheese or egg RAM entrée. Id. at 2.
ANALYSIS
First, with regard to the "no meat" request plaintiff made in his grievances of November 1995 and February 1996, defendants respond that at the time, his religious designation was Protestant/Presbyterian and that those religions do not require their practitioners to refrain from eating meat. Defendants also argue, but without citing any legal authority, that there is no clearly established right to a meatless diet in this Circuit. The Court's legal research revealed one case addressing this latter argument, but it was from the Eastern District of Pennsylvania. Allah v. Stachelek, Nos. CIV. A. 95-7593, CIV. A. 96-0502, CIV. A. 95-7700, CIV. A. 96-0466, CIV. A. 95-7922, 1998 WL 281930, *10 (E.D.Pa., May 29, 1998) (Plaintiffs have not demonstrated that defendants' refusal to provide them with a meatless diet is tantamount to placing a restriction on their ability to practice their religion). Nevertheless, the Court agrees that plaintiff's first grievance was properly dismissed, since at the time he made his request for a meatless diet for religious reasons, the religion to which he professed he belonged did not support his requirement for meatless dishes. Plaintiff did not designate himself to prison officials as a Muslim until October 31, 1996.
Plaintiff's argument appears to be that although Islam does not prohibit the eating of all meats, it does prohibit the eating of improperly slaughtered meats, and meats from certain animals. See Complaint at Ex. 18.
With regard to plaintiff's third grievance requesting the combination meal, defendants state that request was denied "because it is not feasible to combine the two meals." Defs.' Mem. Supp. Mot. Summ. J. at 10. Defendants further argue in their memorandum that in accord with the revised Therapeutic Manual, the RAM is not offered in combination with therapeutic diets. After reviewing defendants' evidence in the light most favorable to plaintiff, and drawing all reasonable inferences and resolving all ambiguities in plaintiff's favor, the Court determines that defendants' contention that a low cholesterol, low fat religiously acceptable meal is available to plaintiff, and plaintiff's contention that it is not, presents an issue of fact precluding summary judgment.
The conclusory statements in their memorandum of law do not refute plaintiff's claim that defendants allowed a Jewish inmate to obtain a low cholesterol, low fat and kosher meal, but would not allow the same for a Muslim inmate; nor do defendants' arguments relate how this difference is reasonably related to a legitimate penological interest. See Bass v. Coughlin, III, 800 F. Supp. 1066, 1069 (N.D.N.Y. 1991), aff'd 976 F.2d 98 (2d Cir. 1992). In Bass, the district court found that a disputed issue of fact concerning whether the plaintiff was provided with a religiously acceptable alternative diet at Clinton Correctional Facility precluded summary judgment. There, the defendants argued that they provided acceptable alternatives for the plaintiff, including an argument that the plaintiff could have "simply chose only kosher items in the prison food service line." Id. at 1068. Bass argued that the prison food service line program did not provide kosher food, which the defendants there disputed.
Furthermore, even if no factual dispute existed, defendants have not shown how the regulation prohibiting a religiously acceptable low fat, low cholesterol meal, or one without meat, as ordered by the facility doctor, is reasonably related to a legitimate penological interest. In other cases, DOCS has made cogent arguments for the reasonableness of its regulations that infringe on a constitutional right. For example, in a 1989 prisoner civil rights case, DOCS sufficiently argued that its regulation requiring that all male inmates be shaved when entering a DOCS facility for the first time was reasonably related to DOCS' concern that there was no alternative to shaving the appellant's beard to reveal his facial features properly for identification photographs (to be used in the event the inmate escaped). Fromer v. Scully, 874 F.2d 69 (2d Cir. 1989); see, also, e.g., Benjamin v. Coughlin, 905 F.2d 571, 577-78 (2d Cir. 1990) (DOCS Directive 4914 contained explanation of why a free world sponsor was required for religious assembly of Rastafarian inmates).
In contrast, defendants here have not made any argument that there is a legitimate penological interest in the regulation prohibiting a combination meal (low fat, low cholesterol and religiously acceptable meal, or a meal with no meats). Defendants have not shown that the regulation prohibiting a combination meal is reasonably related to a legitimate penological interest. The DOCS Therapeutic Diet Manual simply states, in relevant portion, "[m]any of the religious alternative entrée selections are not compatible with therapeutic diet requirements." DOCS Directive 4311, Section IX, C. Yet, defendants argue that plaintiff could have met his requested combination meal requirement by simply choosing the RAM meal fed to the general inmate population. See, e.g., Defs.' Mem. Supp. Mot. Summ. J. at 11.
Nor have defendants shown what impact an accommodation of plaintiff's request would have on the prison system. Defendants have discussed at length the reasonable alternatives available to possibly allow plaintiff to meet his goal of obtaining a healthy and religiously acceptable meal, but have not shown why they can make a kosher meal available to a Jewish prisoner on a therapeutic diet, but not make the same meal available to plaintiff, a Muslim inmate on a therapeutic diet. The prohibition against serving a RAM to a prisoner on a therapeutic diet, without any rationale provided, and the apparent availability of a low fat, low cholesterol kosher meal only for Jewish inmates, is not explained by defendants' voluminous filings. Defendants' reliance on Ramsey v. Coughlin, 527 F. Supp.2d 198, 205 (W.D.N.Y. 1998) is misplaced. In Ramsey, Magistrate Judge Foschio found that the plaintiff had failed to prove his entitlement to a kosher diet by failing to show he was Jewish. In the case at bar, however, defendants do not dispute plaintiff's religious affiliation after October 1996.
The Court, therefore, concludes that a material issue of fact precludes summary judgment, and, in any event, defendants have failed in their duty to show entitlement to judgment as a matter of law under the Turner test.
Turning to defendant Preiss's claim that plaintiff has failed to prove she was personally involved in the alleged constitutional deprivations, the Court concurs and dismisses this action as against her. To prove a claim under 42 U.S.C. § 1983, a plaintiff must show that the defendant was personally involved in the constitutional depravation. Monell v. Dept. of Social Services, 436 U.S. 658 (1978). A prison official may be found to be personally involved in one of the following ways: (1) by directly participating in the deprivation; (2) as a supervisory official, and after learning of a violation, by failing to remedy the violation when she had the authority to do so; (3) as a supervisory official, by creating a policy or custom under which the depravation occurs; or (4) as a supervisory official, by gross negligence in management of subordinates who caused the wrong. Williams v. Smith, 781 F.2d 319 (2d Cir. 1987). Plaintiff has failed to show by evidentiary proof in admissible form that Preiss was personally involved in the alleged constitutional deprivations complained of here. Thus, defendant Preiss is entitled to summary judgment.
The Court will now address defendants' alternate argument, qualified immunity. Qualified, or good faith, immunity has been described by the Supreme Court as,
an affirmative defense that must be pleaded by a defendant official. Decisions of this Court have established that the "good faith" defense has both an "objective" and a "subjective" aspect. The objective element involves a presumptive knowledge of and respect for "basic, unquestioned constitutional rights." The subjective component refers to "permissible intentions." Characteristically the Court has defined these elements by identifying the circumstances in which qualified immunity would not be available. Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. . . ."
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (footnotes and internal citations omitted); Williams v. Smith, 781 F.2d 319, 322 (2d Cir. 1986). The Bass court held that the same material issue of fact that precluded summary judgment also precluded a decision on qualified immunity. This Court also concludes that a material issue of fact in the case at bar likewise needs to be decided prior to the Court's determination of whether qualified immunity applies.
Since at least 1975, prison officials ought to have been aware of an inmate's constitutional right to a meal that is sufficient to sustain the prisoner in good health, and is consistent with his religious scruples. Whether Johnson and Florian knew, or reasonably should have known, that refusing to provide plaintiff with a low fat, low cholesterol meal consistent with his religious beliefs, as they may have provided to the Jewish inmate, violated plaintiff's constitutional rights, or took their actions with the malicious intention to cause a deprivation of his constitutional rights or other injury, cannot be decided as a matter of law.
CONCLUSION
In light of the above, defendant Preiss's motion (docket #92) for summary judgment, is granted; defendants Johnson's and Florian's motions (docket #92) for summary judgment, as well as plaintiff's motion (docket #95) for summary judgment, are denied. The dates set by Judge Feldman's scheduling order, entered on February 26, 1999, have not been extended and have all passed; thus, this case is ready for trial and the Court will issue a separate scheduling order for a jury trial.
IT IS SO ORDERED.