Opinion
Civil Action No. 9:13-CV-1354 (LEK/DEP)
08-17-2015
JAY H. MORSE, Plaintiff, v. RONALD MALLERNEE and DOUGLAS SPRINGER, Defendants.
APPEARANCES: FOR PLAINTIFF: JAY H. MORSE, Pro Se 12-B-1199 Riverview Correctional Facility P.O. Box 247 Ogdensburg, NY 13669 FOR DEFENDANT MALLERNEE: HON. ERIC T. SCHNEIDERMAN New York State Attorney General State of New York The Capitol Albany, NY 12224 OF COUNSEL: MICHAEL G. McCARTIN, ESQ. MARK G. MITCHELL, ESQ. Assistant Attorneys General FOR DEFENDANT SPRINGER: HON. ROBERT G. BEHNKE Broome County Attorney Edwin L. Crawford County Office Bldg. P.O. Box 1766 Binghamton, NY 13902 LEIA D. SCHMIDT, ESQ. Assistant County Attorney
APPEARANCES: FOR PLAINTIFF: JAY H. MORSE, Pro Se
12-B-1199
Riverview Correctional Facility
P.O. Box 247
Ogdensburg, NY 13669
FOR DEFENDANT MALLERNEE: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
State of New York
The Capitol
Albany, NY 12224
OF COUNSEL: MICHAEL G. McCARTIN, ESQ.
MARK G. MITCHELL, ESQ.
Assistant Attorneys General
FOR DEFENDANT SPRINGER: HON. ROBERT G. BEHNKE
Broome County Attorney
Edwin L. Crawford County Office Bldg.
P.O. Box 1766
Binghamton, NY 13902
LEIA D. SCHMIDT, ESQ.
Assistant County Attorney
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Jay H. Morse, a New York State prison inmate, has commenced this action against Douglas Springer, a Broome County Deputy Sheriff, and Ronald Mallernee, a corrections officer employed by the New York State Department of Corrections and Community Supervision ("DOCCS") pursuant to 42 U.S.C. § 1983 alleging that his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq. were violated when his necklace displaying a crucifix was forcibly removed from his neck and confiscated during the course of a transfer from local to state custody.
Currently pending before the court are defendants' separately filed motions seeking dismissal of plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that both of the pending motions be denied. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's second amended 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).
Plaintiff is a New York State prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 10. While he is now incarcerated at the Riverview Correctional Facility, at the times relevant to his claims in this action, plaintiff was being transferred from the Broome County Correctional Facility ("BCCF") to the Elmira Reception Center ("Elmira R.C."), a DOCCS facility. Id. at 2, 3.
On April 23, 2012, while plaintiff was being prepared for transfer from the BCCF to the Elmira R.C., defendant Springer told plaintiff he could not possess the one-and-one-half inch silver crucifix displayed on a twenty-four inch silver chain worn around his neck. Dkt. No. 10 at 3. After objecting and informing defendant Springer that DOOCS Directives #4202 and #4911 permitted him to wear the necklace, plaintiff and defendant Springer discussed the matter with an unidentified Broome County Sheriff's Sergeant, who confirmed that plaintiff was permitted to wear it. Id. Defendant Springer and another unidentified Broome County Deputy Sheriff then transported plaintiff to the Elmira R.C. Id.
Upon arriving at Elmira R.C., defendant Springer informed defendant Mallernee that plaintiff was wearing a necklace, and defendant Mallernee instructed defendant Springer to confiscate it. Dkt. No. 10 at 3. Notwithstanding plaintiff's objections, defendant Springer "forcibly yanked" the necklace with the crucifix from plaintiff's neck and threatened to "throw [it] out the window while returning to Binghamton." Id. at 3-4.
Plaintiff alleges that he "is a practicing Roman Catholic and [holds the crucifix confiscated by defendant Springer] while reciting his prayers twice a day" and that doing so allows him to feel "closer to God[.]" Dkt. No. 10 at 11.
Plaintiff also alleges that the crucifix, which he describes as a "cherished family heirloom," was given to him by his mother shortly before she died. Dkt. No. 10 at 4, 11, 12.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on October 31, 2013, with the filing of a complaint and an accompanying application for leave to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2. Plaintiff's original complaint named eight individuals as defendants, including several DOCCS employees, the Broome County Clerk, and members of the Broome County Sheriff's Department. Dkt. No. 1 at 2. On January 6, 2014, Senior District Judge Lawrence E. Kahn issued a decision and order, pursuant to 28 U.S.C. §§ 1915(e), 1915A, granting plaintiff's IFP application and dismissing plaintiff's complaint, with leave to amend, for failing to state a claim upon which relief may be granted. Dkt. No. 6. Plaintiff availed himself of the opportunity to amend, filing an amended complaint on January 21, 2014. Dkt. No. 7. By decision and order dated July 8, 2014, Judge Kahn dismissed all of the claims asserted in plaintiff's amended complaint, with the exception of the First Amendment and RLUIPA claims asserted against defendants Springer and Mallernee. Dkt. No. 9. Judge Kahn also directed the clerk of the court to docket a copy of the original complaint, together with the amended complaint, as plaintiff's "second amended complaint," which is now the operative pleading. Id. at 4 n.7.
Following service of the summons and second amended complaint upon the defendants, both defendant Springer and defendant Mallernee filed the currently pending motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. Nos. 27, 36. Both defendants contend that dismissal is appropriate because they are entitled to qualified immunity from suit, and defendant Springer additionally seeks dismissal based on the absence of any allegations that plausibly suggest plaintiff's right to free exercise of religion was substantially burdened. See generally Dkt. Nos. 27-1, 36-1. Plaintiff has responded to defendants' motions, and both defendants have since submitted replies in further support of their motions. Dkt. Nos. 30, 33, 39, 40. The motions, which are now fully briefed, have 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. Legal Standard Governing Motions to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
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.").
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.). The tenet that a court must accept as true all of the allegations contained in a complaint does not apply, however, 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. Plaintiff's First Amendment Claim
Defendant Springer contends that plaintiff's First Amendment free exercise claim should be dismissed because the allegations in the second amended complaint fail to plausibly allege that plaintiff's right to the free exercise of his religion was not substantially burdened by defendants' alleged conduct. Dkt. No. 36-1 at 5-7.
Neither defendant Springer nor defendant Mallernee seeks dismissal of plaintiff's RLUIPA claim. See generally Dkt. Nos. 27-1, 36-1.
While inmates confined within prison facilities are by no means entitled to the full gamut of rights guaranteed under the United States Constitution, including its First Amendment, the free exercise clause of that provision does afford them at least some measure of constitutional protection. Pell v. Procunier, 417 U.S. 816, 822 (1974). Whatever protections an inmate retains, however, are not without limits, and the task of defining the contours of the rights in a prison setting requires striking a delicate balance between the rights of prison 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).
As a threshold matter, "[t]he prisoner must show . . . that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin, 467 F.3d at 274-75. 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, 357 F.3d at 201 (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 justifying 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).
The Second Circuit has yet to decide whether the "substantial burden" test survived the Supreme Court's decision in Empt Div. v. Smith, 494 U.S 872, 887 (1990), in which the Court suggested that application of the test "puts courts in 'the unacceptable business of evaluating the relative merits of differing religious claims.'" Ford, 352 F.3d at 592 (quoting Emp't Div., 494 U.S. at 887); see also Holland, 758 F.3d at 220-21 (declining to decide whether a prisoner must show, as a threshold matter, that the defendants' conduct substantially burdened his sincerely held religious beliefs in connection with a First Amendment free exercise claim). In the absence of any controlling precedent to the contrary, I have applied the substantial-burden test in this matter.
In the event the defendants identify a legitimate penological interest justifying their actions allegedly depriving the plaintiff of his free exercise rights, the court must consider whether the defendants' conduct is reasonably related to that penological interest. Ford, 352 F.3d at 594; see also Washington v. Gonyea, 538 F. App'x 23, 26 (2d Cir. 2013) ("Even if Defendants-Appellees substantially burdened [the Plaintiff-Appellant]'s sincerely held religious believes, their actions do not constitute a constitutional deprivation if they were reasonably related to legitimate penological interests." (quotation marks omitted)). The question of whether a challenged regulation or decision by prison officials is reasonable is informed by the following four factors:
[(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).
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.
In this case, plaintiff alleges that (1) he is Roman Catholic, (2) he prayed twice daily with the crucifix that defendants confiscated, (3) holding the crucifix during prayer brought him closer to his god, and (4) DOCCS regulations permitted him to wear his crucifix. See generally Dkt. No. 10. Liberally construed, these allegations are sufficient to plausibly allege that the confiscation of plaintiff's crucifix substantially burdened his sincerely held religious beliefs. See, e.g., Malik v. City of N.Y., No. 11-CV-6062, 2012 WL 3345317, at *12 (S.D.N.Y. Aug. 15, 2012) ("[The plaintiff's] allegations that he practices Islam and that [the defendants] ripped up and destroyed his sacred Quran states a legally sufficient claim under both the Free Exercise Clause and the RLUIPA."); Morris v. Woodford, No. 08-CV-3435, 2009 WL 3925267, at *2 (N.D. Cal. Nov. 18, 2009) ("[Plaintiff] has stated a cognizable claim under the First Amendment and under RLUIPA based on the denial and confiscation of his Quran and other Islamic study and prayer materials."); Shaw v. Norman, No. 07-CV-0443, 2008 WL 1912910, at *3 (E.D. Tex. Apr. 28, 2008) (finding, for purposes of 28 U.S.C. § 1915A, the plaintiff had stated a plausible First Amendment and RLUIPA claim by alleging that the defendants confiscated and destroyed some of his religious property, including his Quran, prayer rug, and prayer beads, and that "his only comfort in prison [was] his religion"); cf. Singh v. Goord, 520 F. Supp. 2d 487, 504 (S.D.N.Y. 2007) (finding that a genuine dispute of material fact exists for trial with respect to whether the defendants substantially burdened the plaintiff's right to exercise his religion by forbidding him from wearing a Khanda, which is a Sikh religious pendant worn around the neck).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Because there are no allegations in plaintiff's second amended complaint regarding whether defendants' conduct was in furtherance of or otherwise related to a legitimate penological interest, I recommend defendant Springer's motion be denied to the extent it requests dismissal on the basis that the second amended complaint fails to state a First Amendment free exercise claim. In the event the defendants articulate a legitimate penological interest supporting their actions, the plaintiff's claim can then be analyzed in accordance with the foregoing test based upon a more complete record, either on a motion for summary judgment or at trial.
Even assuming defendant Springer sought dismissal of plaintiff's RLUIPA claim, it would not be subject to dismissal at this time for the same reasons plaintiff's First Amendment free exercise claim survives. Although the legal standards governing the two claims differ with respect to the degree with which the defendants' conduct must be related to a legitimate penological interest, both causes of action require that a plaintiff prove his right to practice a sincerely held religious belief was substantially burdened. See 42 U.S.C. § 2000cc(a)(1) ("No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person. . . unless the government demonstrates that imposition of the burden on that person. . . is in furtherance of a compelling governmental interest; and [] is the least restrictive means fo furthering that compelling governmental interest.").
C. Qualified Immunity
Both defendants Springer and Mallernee seek dismissal of plaintiff's claims asserted against them, arguing that, even assuming the facts alleged in plaintiff's second amended complaint are true, they are entitled to qualified immunity from suit. Dkt. No. 27-1 at 5-8; Dkt. No. 36-1 at 7-10.
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sudler v. City of N.Y., 689 F.3d 159, 174 (2d Cir. 2012). The law of qualified immunity seeks to strike a balance between "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. Government officials are shielded from liability by qualified immunity when making "reasonable mistakes" concerning the lawfulness of their conduct. Sudler, 689 F.3d at 174 (citing Saucier v. Katz, 533 U.S. 194, 206 (2001), abrogated on other grounds by Pearson, 555 U.S. 223)).
Because qualified immunity is "an immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation," Pearson, 555 U.S. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a statutory or constitutional right, and if so, whether that right "was clearly established at the time of the challenged conduct." Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (citing Reichle, 132 S. Ct. at 2093). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quotation marks and alterations omitted). "To this end, a plaintiff need not show a case 'directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.'" Terebesi, 764 F.3d at 230 (quoting al-Kidd, 131 S. Ct. at 2083). However, "[e]ven where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). This "objective reasonableness" part of the test is satisfied if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).
Defendants in this case contend that they are entitled to qualified immunity because "there is not a clearly established right to possess a crucifix while incarcerated[.]" Dkt. No. 36-1 at 9; see also Dkt. No. 27-1 at 7 ("[T]here is no case law that requires that an inmate be allowed to wear a crucifix while he is imprisoned." (emphasis in original)). While it is true that the precise issue of whether an inmate is permitted to wear a one-and-one-half inch crucifix around his neck has not been decided by either the Supreme Court of the United States or the Second Circuit Court of Appeals, that does not necessarily preclude a finding that it is clearly established law. See Shabazz v. Coughlin, 852 F.2d 697, 701 (2d Cir. 1988) ("Of course, under certain circumstances, the absence of specific authority on point will not preclude a finding that the law was clearly established."). Even where the Second Circuit has not explicitly held that a course of conduct is unconstitutional, courts "may nonetheless treat the law as clearly established if decisions from this or other circuits clearly foreshadow a particular ruling on the issue." Terebisi, 764 F.3d at 231 (quotation marks omitted); see also al-Kidd, 131 S. Ct. at 2084 (finding that, in the absence of controlling authority, "a robust 'consensus of cases of persuasive authority'" is required in order to find that a defendant is not entitled to qualified immunity (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).
In this case, with respect to the particular right at issue, I find that, assuming the facts as alleged in the second amended complaint are true, there is sufficient legal precedent that should have put defendants on notice that an inmate has a constitutional right to wear a crucifix where it is not contrary to or inconsistent with a legitimate penological interest. See O'Lone, 482 U.S. at 348-49 (holding that limiting an inmate's First Amendment rights is valid if reasonably related to legitimate penological interests). In his opinion in Hudson v. Palmer, Justice Stevens said that "[a] prisoner's possession of . . . personal property relating to religious observance, such as a Bible or a crucifix, is surely protected by the Free Exercise Clause of the First Amendment." Hudson v. Palmer, 468 U.S. 517, 547 n.13 (1984) (Stevens, J., concurring in part and dissenting in part). Courts have relied on this portion of Justice Stevens' opinion to find that, for example, allegations of a defendant's destruction of an inmate-plaintiff's Quran states a legally sufficient claim under both the First Amendment and the RLUIPA. Malik, 2012 WL 3345317, at *12; see also Hanas v. Inner City Christian Outreach, Inc., 542 F. Supp. 2d 683, 695 (E.D. Mich. 2008) (granting summary judgment in favor of the plaintiff where the defendant confiscated the plaintiff's rosary book and prayer book and the defendants could not "reasonably argue that [the confiscation] served any penological interest"); Morello v. James, 627 F. Supp. 1571, 1574 (W.D.N.Y. 1986), rev'd on other grounds by 810 F.2d 344 (2d Cir. 1987), (finding that "the mere possession of ['property that relates to religious observance, such as a Bible or a crucifix'] is constitutionally protected" and "its intentional destruction or deprivation by State officials (if unaccompanied by a compelling justification) is itself a violation of a substantive constitutional right").
In this regard, plaintiff's second amended complaint contains no allegations that either of the defendants sought to, or did, confiscate plaintiff's crucifix in light of or in furtherance of a legitimate penological interest. See generally Dkt. No. 10. In the absence of this allegation, and mindful of the court's obligation to liberally construe a pro se litigant's pleadings, I have assumed, for purposes of the pending motions, that defendants Springer and Mallernee confiscated plaintiff's necklace for no reason.
The foregoing case law constitutes sufficient foreshadowing of the particular right at issue in this case. While it may become clear later in these proceedings that defendants acted in furtherance of a legitimate penological interest, taking the facts alleged in the second amended complaint as true, I find that plaintiff's right to wear a crucifix, where there is no legitimate penological interest precluding such conduct, was a clearly established right at the time defendants Springer and Mallernee confiscated plaintiff's necklace.
The last consideration of a qualified immunity analysis asks whether, even assuming the defendants violated a plaintiff's clearly established constitutional rights, it was objectively reasonable for officers in the defendants' position to have believed that their conduct was lawful. Higazy, 505 F.3d at 169-70. In this instance, in light of the procedural posture of the case and my obligation to accept the facts alleged in the second amended complaint as true, I find that no officer in the positions of either defendant Springer or Mallernee would have believed that their confiscation of plaintiff's crucifix, without any penological justification, was lawful. In this respect, the court takes judicial notice of DOCCS Directive 4202, which permits inmates to possess a "religious medallion," including a "Cross." DOCCS Directive, Religious Programs and Practices No. 4202, available at http://www.doccs.ny.gov/directives/4202.pdf (last visited Aug. 11, 2015). DOCCS Directive 4202 also states that, "[w]hen worn, a medallion shall be affixed to a metal chain[.]" Id. Plaintiff in this matter alleges that his crucifix was attached to a silver chain, in compliance with the relevant DOCCS rules and policies. Although not dispositive of whether an officer in the defendants' position would have reasonably believed his conduct was not adverse to any of plaintiff's constitutional rights, defendants Springer and Mallernee at least should have been aware that confiscating plaintiff's crucifix was contrary to DOCCS Directive 4202. Accordingly, I conclude that it was not objectively reasonable for defendants Springer and Mallernee to believe that confiscating plaintiff's crucifix without any justification was lawful. See Russell v. Coughlin, 910 F.2d 75, 79 (2d Cir. 1990) (finding that it was not reasonable for the defendants to believe that they were not violating the plaintiff's constitutionally protected liberty interest by releasing him from administrative confinement three days later than New York State regulations mandated).
See, e.g., Williams v. Fischer, No. 11-CV-0379, 2015 WL 1137644, at *4 n.7 (N.D.N.Y. Mar. 11, 2015) (Mordue, J., adopting report and recommendation by Dancks, M.J.) (taking judicial notice of DOCCS Directive 4202); Phelan v. Zenzen, No. 10-CV-06704, at *4 (W.D.N.Y. Nov. 6, 2012) (taking judicial notice of DOCCS Directive 4421).
For all of the reasons discussed above, I recommend defendants' motions to dismiss be denied, without prejudice, to the extent they seek dismissal of plaintiff's second amended complaint on the basis of qualified immunity.
It is worth noting that, even assuming defendants seek dismissal of plaintiff's RLUIPA claim on the basis of qualified immunity, that legal theory is not available. Plaintiff seeks declaratory, injunctive, and monetary relief, against the defendants in their individual and official capacities. Dkt. No. 10 at 2, 8-9. Qualified immunity does not apply to lawsuits against individuals in their official capacities. Mitchell v. Forsyth, 472 U.S. 511, 556 n.10 (1985) (Brennan, J., concurring in part and dissenting in part) (citing Brandon v. Holt, 469 U.S. 464 (1985)). With respect to plaintiff's RLUIPA claim, there is no cognizable private right of action against state officers sued in their individual capacities, and the RLUIPA does not allow for the award of monetary damages against state officers sued in their official capacities. Gonyea, 731 F.3d at 144 (citing Sossaman v. Tex., 131 S. Ct. 1651, 1656 (2011)); accord, Holland, 758 F.3d at 224 ("RLUIPA does not authorize claims for monetary damages against state officers in either their official or individual capacities."); Williams v. Leonard, No. 11-CV-1158, 2015 WL 3544879, at *1 (N.D.N.Y. June 4, 2015) (McAvoy, J.) ("[T]o the extent that Plaintiff seeks monetary damages against the Defendants in their individual or official capacities under the RLUIPA, such damages are not available."). Plaintiff's RLUIPA claim, therefore, is limited to injunctive and declaratory relief against the defendants in their official capacities. Accordingly, qualified immunity has no bearing on plaintiff's RLUIPA claim. See, e.g., Rodriguez v. City of N.Y., 72 F.3d 1051, 1065 (2d Cir. 1995) ("[T]he defense of qualified immunity protects only individual defendants sued in their individual capacity, not governmental entities, and it protects only against claims for damages, not against claims for equitable relief."); accord, Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir. 2003).
IV. SUMMARY AND RECOMMENDATION
Plaintiff has commenced this action alleging that the defendants' confiscation of his crucifix, which he wore around his neck in accordance with the relevant prison regulations, violated his rights under the First Amendment and RLUIPA. Because the allegations in the operative pleading, when liberally construed, plausibly suggest that defendants' conduct substantially burdened his ability to exercise his sincerely held religious beliefs, defendant Springer's motion to dismiss in this respect should be denied. In addition, because there are no allegations in plaintiff's second amended complaint that suggest defendants confiscated his crucifix in furtherance of a legitimate penological interest, I find that extending qualified immunity to defendants at this juncture is premature.
Accordingly, it is hereby respectfully
RECOMMENDED that defendant Mallernee's motion to dismiss (Dkt. No. 27) and defendant Springer's motion to dismiss (Dkt. No. 36) 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 17, 2015
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge