Opinion
Civil Action No. 9:14-CV-0418 (DNH/DEP)
03-09-2016
MICHAEL J. RODRIGUEZ, Plaintiff, v. DAVE FAVRO, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: MICHAEL J. RODRIGUEZ, Pro Se 14-A-3203 Southport Correctional Facility Box 2000 Pine City, NY 14871 FOR DEFENDANTS: LEMIRE, JOHNSON & HIGGINS, LLC P.O. Box 2485 2534 Route 9 Malta, NY 12020 OF COUNSEL: GREGG T. JOHNSON, ESQ. BRADLEY J. STEVENS, ESQ.
APPEARANCES: FOR PLAINTIFF: MICHAEL J. RODRIGUEZ, Pro Se
14-A-3203
Southport Correctional Facility
Box 2000
Pine City, NY 14871 FOR DEFENDANTS: LEMIRE, JOHNSON & HIGGINS, LLC
P.O. Box 2485
2534 Route 9
Malta, NY 12020 OF COUNSEL: GREGG T. JOHNSON, ESQ.
BRADLEY J. STEVENS, ESQ. DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Michael J. Rodriguez, who is now a New York State prison inmate, has commenced this action against Clinton County, Clinton County Sheriff David Favro, and Jail Administrator Michael Smith, pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his civil rights by denying him the right to freely exercise his chosen religion in violation the First Amendment. Plaintiff's claims relate to a directive by officials at the Clinton County Jail ("CCJ") prohibiting Rodriguez, a Rastafarian, from wearing a religious head covering at certain times within the facility.
Currently pending before the court is a motion brought by defendants seeking the entry of summary judgment dismissing plaintiff's complaint. For the reasons set forth below, I recommend that defendants' motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at the Southport Correctional Facility ("Southport"), located in Pine City, New York. See generally Dkt. No. 32; Dkt. No. 26-6 at 2. Prior to his incarceration with the DOCCS, including at the times relevant to his claims in this action, plaintiff was confined at the CCJ. See generally Dkt. No. 1.
On February 13, 2014, plaintiff was booked into the CCJ after being charged with promoting prison contraband in the first degree. Dkt. No. 26-12 at 2; Dkt. No. 26-13 at 2. That charge related to the drug suboxone. Dkt. No. 26-6 at 5. Plaintiff's felony history included prior charges of robbery in the first degree, criminal possession of a controlled substance, and promoting prison contraband. Id.
Suboxone is a prescription drug used for the treatment of opiate dependence and is a Schedule III controlled drug under the Federal Controlled Substances Act. Dkt. No. 26-11.
As a general rule, at the time plaintiff was confined in the CCJ, inmates were allowed to wear certain religious head coverings in accordance with their sincerely held religious beliefs. Dkt. No. 26-12 at 2; Dkt. No. 26-13 at 2. Those head coverings could be worn throughout the facility, subject to physical search and inspection by officials for concealed contraband. Id. Pursuant to the established policies and practices at the facility, the rule can be modified based on the specific security risk an inmate poses at the time of booking or throughout his incarceration at the facility. Id. Inmates who are mobile or transferred throughout the facility present the greatest security risks due to the possibility of obtaining contraband from other inmates. Dkt. No. 26-12 at 2; Dkt. No. 26-13 at 3. Searches of inmates during movement pose additional security risks because the officers conducting the searches cannot divert their attention from the search to observe other inmates. Dkt. No. 26-12 at 3; Dkt. No. 26-13 at 4.
The booking sheet prepared for plaintiff by CCJ staff upon his entry into the jail on February 13, 2014, reflected that he is a Rastafarian. Dkt. No. 26-3 at 4. In accordance with his religious beliefs, plaintiff contends that his head should be covered at all times unless he is "stepping into the temple" or washing his head. Dkt. No. 26-6 at 6-8. Plaintiff does not wear his head covering, which he refers to as a crown, in the shower or when he prays. Dkt. No. 26-6 at 7-8; Dkt. No. 28 at 3. Plaintiff's crown measures approximately eleven inches in length and eleven inches in height. Dkt. No. 26-4 at 2-3; Dkt. No. 28-3 at 17-18. During plaintiff's booking, Corrections Officer Dragoon, who is not a named defendant, told plaintiff that there was a policy in place at the facility regarding religious head-coverings and that plaintiff was not permitted to wear his crown throughout the entire facility. Dkt. No. 26-6 at 19; Dkt. No. 28-1 at 2. In response, plaintiff asked to speak with a supervisor, and was advised that he could file a grievance regarding the issue. Id.
During his incarceration at the CCJ, plaintiff was permitted to wear his crown in his cell and housing unit, but not outside of his housing unit. Dkt. No. 26-13 at 3. In particular, due to security risks, plaintiff was not allowed to wear his crown during facility movements. Id.; Dkt. No. 26-6 at 11. Plaintiff was required to remove his crown when he used the law library, engaged in recreation, transferred cells, or attended court appearances. Dkt. No. 16-13 at 3; Dkt. No. 26-6 at 15-16. Plaintiff voluntarily chose to use the law library and participate in recreation with the knowledge that he would not be permitted to wear his crown while engaging in those activities. See, e.g., Dkt. No. 26-6 at 16.
Over the period of his incarceration at the CCJ, plaintiff used the law library seven times and was transported to court on approximately five or six occasions. Dkt. No. 26-6 at 15-16; Dkt. No. 26-8. During each visit to the law library and court, plaintiff was not permitted to wear his crown. Dkt. No. 26-6 at 15-18. In addition, plaintiff was not allowed to wear his crown when he was transferred to different cell locations or during recreation. Id. at 16-18. At his deposition in connection with this matter, plaintiff testified that he was transferred approximately four times, and the transfers lasted "a matter of minutes." Id. at 17-18.
Plaintiff filed eleven requests to use the law library, and was granted permission on seven occasions. Dkt. No. 26-8.
Plaintiff was permitted to practice his religion in his cell. Dkt. No. 26-6 at 13. Plaintiff prayed every day, morning and night, for between thirty minutes and two hours. Id. at 13-15.
While incarcerated at the CCJ, plaintiff was involved in three fights. Dkt. No. 26-6 at 20-21. As a result of an incident on March 17, 2014, plaintiff agreed to be confined to a "24-hour lock." Dkt. No. 26-5 at 4-8; Dkt. No. 26-13 at 5. One week later, on March 24, 2014, plaintiff engaged in another altercation. Dkt. No. 26-5 at 9; Dkt. No. 26-13 at 9-14. On June 10, 2014, plaintiff was involved in a third fight that resulted in sixty-day "lock in" sentence. Dkt. No. 26-5 at 16-25; Dkt. No. 26-13 at 5.
Plaintiff filed one grievance regarding his ability to wear his crown while confined in the CCJ. Dkt. No. 26-6 at 25. On or about February 16, 2014, the grievance was forwarded to the grievance coordinator, Sergeant Ryan ("Ryan"), who is not a named defendant. Dkt. No. 28-1 at 3; Dkt. No. 28-3 at 14. On March 7, 2014, plaintiff was interviewed by Ryan, who determined that "[j]ail [p]olicy states you may wear your crown in your cell, and housing unit. Day area." Dkt. No. 28-3 at 15. Plaintiff appealed Ryan's decision to defendant Michael Smith, the Clinton County Jail Administrator, who concluded that plaintiff "may wear [his] religious item in [his] housing unit." Id.; Dkt. No. 26-13 at 1. Plaintiff disagreed with defendant Smith's decision and, on March 20, 2014, appealed the determination to the Citizen's Policy and Complaint Review Council ("CPCRC"). Dkt. No. 26-10 at 3; Dkt. No. 28-1 at 3; Dkt. No. 28-3 at 15. On August 5, 2014, the CPCRC issued a decision regarding plaintiff's appeal, finding that he could exercise his beliefs and wear his crown to the extent that it "does not constitute a threat to the safety, security and good order of the facility." Dkt. No. 26-10 at 2. In March 2014, prior to receiving the decision of the CPCRC, plaintiff filed his complaint in this action. Dkt. No. 2 at 5; Dkt. No. 26-10 at 2.
The date that plaintiff's complaint was deemed "filed" with the court is disputed and will be discussed more completely below in Part III.B. of this report.
On July 22, 2014, after 160 days of incarceration at the CCJ, plaintiff was transferred to the custody of the DOCCS. Dkt. No. 26-13 at 2; Dkt. No. 26-3 at 7. During his confinement at the CCJ, plaintiff was required to remove his crown for less than twenty-five hours for mandatory transports and approximately 110 hours for voluntary transports. Compare Dkt. No. 26-14 at 5 with Dkt. No. 28 at 2. In total, plaintiff was not permitted to wear his crown for approximately 135 hours while confined at the CCJ. Id.
While defendants have not cited any record evidence for this proposition proffered in their statement of undisputed material facts pursuant to rule 7.1(a)(3) of the local rules of practice for this court, Dkt. No. 26-14 at 5, plaintiff has admitted the proffered fact in his response to defendants' statement of undisputed material facts, Dkt. No. 26-10 at 2.
Plaintiff did not discuss the restrictions regarding his head-covering with defendant Dave Favro, nor did he receive any communication from that individual. Dkt. No. 26-6 at 27-28. Similarly, although defendant Smith responded to plaintiff's grievance appeal, he and plaintiff did not have any conversations regarding plaintiff's right to wear his crown. Id. at 28.
II. PROCEDURAL HISTORY
Plaintiff commenced this action with the filing of a complaint and an accompanying application to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2. Following an initial review of the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A, District Judge David N. Hurd issued an order granting plaintiff's IFP application and approving the filing of his complaint, subject to dismissal of all claims asserted against defendant Clinton County Jail and substitution of Clinton County ("County") in place of the CCJ as a defendant. See generally Dkt. No. 10.
Following the close of discovery, defendants filed a motion for summary judgment seeking dismissal of plaintiff's complaint on multiple grounds, including (1) plaintiff's failure to exhaust his administrative remedies; (2) the lack of evidence supporting plaintiff's First Amendment claims; (3) the lack of personal involvement of defendants Smith and Favro; (4) qualified immunity; and (5) the absence of any evidence from which a reasonable factfinder could conclude that defendant County promulgated a policy or custom through which any municipal actor violated plaintiff's constitutional rights. See generally Dkt. No. 26. Plaintiff has since responded in opposition to the motion, and defendants have submitted a reply in further support of their motion. Dkt. Nos. 28, 30. Defendants' motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3( c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Legal Standard Governing Motions for Summary Judgment
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Exhaustion of Available Administrative Remedies
In support of their motion for summary judgment, defendants contend that dismissal of plaintiff's complaint is warranted in light of the fact that plaintiff failed to exhaust the administrative remedies available to him at the CCJ prior to filing this action. Dkt. No. 26-15 at 11-13. In response, plaintiff argues that the CPCRC did not issue a timely response to his grievance appeal, filed on March 20, 2014. Dkt. No. 28-1 at 3. Specifically, plaintiff contends that, although the CCJ Inmate Handbook provides that the CPCRC will render a decision within forty-five business days, he did not receive a response to his appeal until on or about August 5, 2014, well beyond the forty-five day deadline. Id.; see also Dkt. No. 26-9 at 31.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). This limitation is intended to serve the dual purpose of affording "prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into courtl[,]" and to improve the quality of inmate suits filed through the production of a "useful administrative record." Jones v. Bock, 549 U.S. 199, 204 (2007) (citations omitted); see Woodford, 548 U.S. at 91-92; see also Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
All unreported cases cited to in this decision have been appended to this report for the convenience of the pro se plaintiff.
The failure of a prisoner to satisfy the PLRA's exhaustion requirement is an affirmative defense that must be raised by a defendant in response to an inmate suit. Jones, 549 U.S. at 212. In the event the defendant establishes that the inmate plaintiff failed "to fully complete[ ] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
A comprehensive inmate grievance process existed at the CCJ at the times relevant to this action. Dkt. No. 26-9 at 31; Dkt. No. 38-3 at 19. The policies governing that process are set forth in an inmate handbook, a copy of which plaintiff acknowledged receiving upon being processed into the jail. Id.; see also Dkt. No. 26-6 at 19. According to the procedures set forth in the handbook, while inmates at the CCJ are encouraged first to informally communicate problems to housing unit officers, if they are unable to resolve the issue in that manner, they are instructed to complete a complaint/grievance form, which is first reviewed by a housing unit officer, and then, if unresolved, is forwarded to the grievance coordinator as part of the formal grievance process. Dkt. No. 26-9 at 31; Dkt. No. 28-3 at 19. The grievance process provides inmates with the opportunity to appeal adverse decisions of the grievance coordinator to the jail administrator, and any adverse decision from that official can be appealed to the New York State Commission of Correction. Id. Inmates are informed that they can expect to receive a decision receive a decision from the NYS Commission of Corrections within forty-five business days. Id.
In this instance, there is no dispute that plaintiff filed a grievance regarding the restrictions on wearing his head covering and appealed the adverse decision at the facility level to the CPCRC on March 20, 2014. Dkt. No. 26-10 at 3-4; Dkt. No. 28-3 at 14-17. Nor do the parties dispute that the CPCRC did not issue its decision regarding plaintiff's appeal until August 5, 2010. Dkt. No. 26-10 at 2; see also Dkt. No. 28-1 at 4. Plaintiff filed his complaint in this action, however, on March 19, 2014, well before the CPCRC rendered its decision. Dkt. No. 2 at 5. While plaintiff contends that he "filed" his complaint on March 25, 2014, Dkt. No. 28-2, that contention is legally irrelevant in light of the undisputed evidence that, even assuming he filed his complaint on that date, his complaint was filed months prior to issuance of the CPCRC's decision, and indeed well prior to expiration of the forty-five business days time within which the CPCRC is supposed to decide appeals to that body. Accordingly, plaintiff failed to exhaust the available administrative remedies before filing this action. See, e.g., Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002); accord, Casey v. Brockley, No. 13-CV-1271, 2015 WL 8008728, at *5 (N.D.N.Y. Nov. 9, 2015) (Dancks, M.J.), report and recommendation adopted by 2015 WL 7864161 (N.D.N.Y. Dec. 3, 2015) (Hurd, J.), ("Receiving a decision from CORC after commencing litigation does not satisfy PLRA's requirement that administrative remedies be exhausted before filing suit, and any claim not exhausted prior to commencement of the suit must be dismissed without prejudice." (emphasis in original)).
It is worth noting that plaintiff's insistence that he filed his complaint on March 25, 2014 is misguided. Under this circuit's "prison mailbox rule," the date of filing is deemed to be the date that the prisoner-plaintiff delivered his complaint to a prison guard for mailing to the court, which is presumed to be the date that the complaint was signed. Houston v. Lack, 487 U.S. 266, 276 (1988); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2011). Thus, for the purposes of this motion, the date upon which plaintiff filed his complaint is March 19, 2014, a day before he appealed the grievance determination to the CPCRC. Dkt. No. 2 at 5.
Plaintiff's failure to exhaust administrative remedies, however, does not warrant dismissal of his complaint without further inquiry. In a series of decisions rendered since the enactment of the PLRA, the Second Circuit has prescribed a three-part test for determining whether dismissal of an inmate-plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. See, e.g., Hemphill v. N.Y., 380 F.3d 680, 686 (2d Cir. 2004); see also Macias, 495 F.3d at 41. Those decisions instruct that, before dismissing an action as a result of a plaintiff's failure to exhaust, a court must first determine whether the administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event of a finding that a remedy existed and was available, the court must next examine whether the defendant has forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it, or whether, through his own actions preventing the exhaustion of plaintiff's remedies, he should be estopped from asserting failure to exhaust as a defense. Id. In the event the exhaustion defense survives these first two levels of scrutiny, the court must examine whether the plaintiff has plausibly alleged special circumstances to justify his failure to comply with the applicable administrative procedure requirements. Id.
In this instance, the record fails to reveal any basis on which plaintiff's failure to exhaust could be excused under Hemphill and its progeny. As is detailed above, a comprehensive inmate grievance process existed at the CCJ at the relevant times. Dkt. No. 26-9 at 31; Dkt. No. 28-3 at 19. That grievance policy was set forth in an Inmate Handbook, a copy of which plaintiff acknowledged receiving upon being processed into the prison. Id.; Dkt. No. 26-6 at 19. Plaintiff was familiar with that grievance process, and knew it was available to him, as evidenced by the grievance filed by him while incarcerated at the CCJ. Dkt. No. 28-3 at 14-16. Indeed, a copy of plaintiff's grievance, and his detailed recounting of the process demonstrate that, during his custody in the CCJ, the grievance process was available to him. Id.; Dkt. No. 28-1 at 2-3. Accordingly, there is no evidence in the record upon which a reasonable factfinder could conclude that the grievance process was unavailable to plaintiff at the relevant times.
Turning to the second inquiry, there is no record evidence that suggests defendants forfeited the exhaustion defense, and plaintiff has not alleged as much.
Defendants asserted the exhaustion defense in their answer. Dkt. No. 20 at 3.
Finally, nothing in the record suggests that special circumstances exist that could justify plaintiff's failure to exhaust the available administrative remedies. The CPCRC's failure to act within the time frame set forth in the Inmate Handbook does not constitute a special circumstance justifying plaintiff's failure to exhaust. See, e.g., Casey, 2015 WL 8008728, at *6 (citing cases); Quinn v. Stewart, No. 10-CV-8692, 2012 WL 1080145, at *6 (S.D.N.Y. Apr. 2, 2012) ("The administrative exhaustion requirement directs courts to evaluate solely whether grievance procedures were satisfied at the time that an action was initially filed." (emphasis in original)). Accordingly, I recommend defendants' motion be granted based on plaintiff's failure to exhaust the available administrative remedies prior to filing this action.
C. Merits of Plaintiff's First Amendment Religious Freedom Claims
As an alternative ground for dismissal of plaintiff's complaint, defendants contend that, based upon the record now before the court, no reasonable factfinder could conclude that defendants violated plaintiff's First Amendment rights to freedom of religion because any alleged burden upon plaintiff's religious beliefs resulting from defendants' actions is far outweighed by legitimate penological interests. Dkt. No. 26-15 at 13-15.
While inmates confined within prison facilities are by no means entitled to the full panoply of rights guaranteed under the United States Constitution, including its First Amendment, the free exercise clause of that provision 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."). That right, however, is 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 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). When determining whether the decision to restrict an inmate from wearing religious headwear outside of his housing unit impinges upon that individual's First Amendment free exercise right, the inquiry is "one of reasonableness, taking into account whether the particular [act] affecting [the] right . . . is 'reasonably related to legitimate penological interests.'" Benjamin, 905 F.2d at 574 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)); Ford, 352 F.3d at 588; see also Farid v. Smith, 850 F.2d 917, 925 (2d Cir. 1988).
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 Emp't 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 v. Goord, 758 F.3d 215, 220-21 (2d Cir. 2014) (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.
The court then asks whether a defendant's conduct, which allegedly deprives the plaintiff of his free exercise rights, is reasonably related to some legitimate 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)). To evaluate 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) Whether 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).
In this case, defendants do not challenge the genuineness of plaintiff's religious beliefs. The threshold issue in this case, then, is whether the decision to limit the locations where plaintiff could wear his crown substantially abridged plaintiff's sincerely held religious beliefs. "[A] substantial burden exists where the state puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (quotation marks and alterations omitted). On the one hand, plaintiff acknowledged that he did not wear his crown continuously, throughout every day, compare Dkt. No. 26-14 at 7 with Dkt. No. 28 at 3, and plaintiff testified at his deposition that he removed his crown to shower and pray and while at his home. Dkt. No. 26-6 at 7-8. Moreover, plaintiff had "no problem" removing his crown for search and inspection. Dkt. No. 26-6 at 29. On the other hand, however, plaintiff contends that, according to his religious beliefs, his "head shall be covered at all times . . . [out] of respect to [his] creator," except when he is in temple or praying. Id. at 6, 7-8, 13. In light of all of this evidence, I find that a reasonable factfinder could conclude that defendants' decision to limit where plaintiff could wear his crown substantially burdened plaintiff's sincerely held beliefs. See Ford, 352 F.3d at 593-94 ("The relevant question in determining whether [the plaintiff]'s religious beliefs were substantially burdened is whether participation in [a particular celebration], in particular, is considered central or important to [the plaintiff]'s practice of Islam.").
Turning to the second prong of the analysis, and assuming that defendants' refusal to allow plaintiff to wear his crown in certain locations within the jail substantially burdened plaintiff's beliefs, I conclude that defendants have nonetheless demonstrated a compelling interest in maintaining security. The Second Circuit addressed the constitutionality of prison regulations that restricted the wearing of crowns to designated areas based upon legitimate security interests in Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1990). In Benjamin, the defendants maintained that the size of crowns and the ease with which contraband could be smuggled, posed security concerns. Benjamin, 905 F.2d at 578-79. The court held that "legitimate security reasons are raised in support of the present policy. Preventing the smuggling of contraband, such as weapons and drugs, comports with the type of penological interests contemplated under the Turner/Shabazz standard." Id. at 578.
Here, defendants Favro and Smith have explained that the crown is the largest religious head covering permitted to be worn at the CCJ and, due to its size, it poses the largest risk for concealing contraband and/or weapons. Dkt. No. 26-12 at 3; Dkt. No. 26-13 at 4. While the parties disagree regarding the precise dimensions of plaintiff's crown, it is undisputed that the crown measures approximately eleven inches in length and eleven inches in height. Dkt. No. 26-4; Dkt. No. 28-3 at 17-18. Defendants Smith and Favro also explain that, while head coverings can be worn throughout the facility subject to search and inspection, the rule can be modified based on the specific security concerns that an individual inmate poses during his incarceration at the facility. Dkt. No. 26-12 at 2; Dkt. No. 26-13 at 2. They note that the times when inmates are "mobile" create the highest security risks. Dkt. No. 26-12 at 2; Dkt. No. 26-13 at 3. Conducting searches of inmates during times of movement poses security risks because, as an officer is conducting a search of an inmate, he cannot observe and watch other inmates. Dkt. No. 26-12 at 3; Dkt. No. 26-13 at 4. Although the parties disagree as to whether plaintiff was designated as "an initial security risk" at his booking, compare Dkt. No. 26-14 at 2 with Dkt. No. 28 at 1, plaintiff admits that he was processed into the CCJ in February 2014 after having been charged with promoting prison contraband. Dkt. No. 26-6 at 4. One month later, plaintiff was involved in two physical altercations with other inmates. Id. at 21-23; see also Dkt. No. 26-5 at 4-14. As a result of a third incident in June 2014, plaintiff received a sixty-day "lock in" sentence. Dkt. No. 26-5 at 16; Dkt. No. 26-13 at 5.
While plaintiff contends that he posed no security risk while at CCJ because "at no time while being house at [the CCJ] was [he] found to be in possession of prison contraband," Dkt. No. 28-1 at 3, such backwards reasoning does not address the potential security risk that prison staff assigned to plaintiff in light of his history of promoting prison contraband and fighting while incarcerated at the CCJ. Similarly, neither plaintiff's cooperation with prison officials during searches, nor the existence of security cameras throughout the facility, id. at 4-5, detract from the legitimate security risk posed by both the crown itself as a means of concealing weapons and other contraband and plaintiff, who prison officials felt posed a heightened security risk based on his past behavior. Accordingly, in light of Benjamin and the security considerations highlighted by defendants, I find that no reasonable factfinder could conclude that defendants' decision to limit where plaintiff could wear his crown was unreasonable or irrationally related to a legitimate penological concern. See Jihad v. Fabian, No. 09-CV-1604, 2011 WL 1641885, at *18 (D. Minn. Feb. 17, 2011) (holding that the prison policy prohibiting the plaintiff from wearing his kufi outside of designated areas was narrowly tailored to serving compelling interests of prison safety and security); see also Jones v. Rowley, No. 08-CV-1094, 2009 WL 7042244, at *4 (D. Md. April 20, 2009) ("As a matter of law, the court concludes this heightened security concern is well founded. The regulation restricting plaintiff's wearing of a . . . 'crown' does not comprise a violation under [section] 1983 . . . since crowns are large and may be used to conceal contraband, including weapons and drugs."); see also Muhammad v. Lynaugh, 966 F.2d 901, 902-03 (5th Cir. 1992) (finding that corrections officers' testimony that weapons can "easily be secreted inside a Kufi cap" was persuasive evidence that the prison regulations restricting the use of Kufi caps are reasonably related to a legitimate penological interest of prison security).
Turning to the factor regarding whether the plaintiff had an alternative means of exercising the alleged burdened right, in this case, the court is not aware of any other means of exercising this particular religious belief other than physically wearing the crown. There is record evidence, however, demonstrating that plaintiff received some accommodations for his religious beliefs. Plaintiff was permitted to pray in his cell, at any time, without any limitations. Dkt. No. 26-6 at 13-15. In addition, he was able to wear his crown in his cell and housing unit without restriction. Dkt. No. 26-13 at 3. During plaintiff's 160 days of incarceration (less than 3,850 hours) at the CCJ, plaintiff was required to remove his crown for approximately 135 hours. Dkt. No. 26-14 at 5; Dkt. No. 28 at 2. On balance, in light of the security considerations suggested by defendants, as well as the accommodations already provided to plaintiff, in my view no reasonable factfinder could conclude that defendants' decision to refuse to allow plaintiff to wear his crown continuously throughout the facility was unreasonable. Accordingly, I recommend that plaintiff's First Amendment claim be dismissed.
D. Qualified Immunity
Defendants also contend that, even if the court finds that plaintiff suffered a deprivation of his First Amendment rights, defendants Favro and Smith are protected by the doctrine of qualified immunity. Dkt. No. 26-15 at 18-20.
"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).
In this instance, even assuming plaintiff is able to establish a constitutional violation, I recommend a finding that defendants Favro and Smith are entitled to qualified immunity based upon my conclusion that it was objectively reasonable for them to believe that their conduct did not violate plaintiff's constitutional rights. As a threshold matter, at the time of the alleged incidents, "there [was] no clearly established law requiring prisons to permit inmates to wear religious head coverings at all times." Uhuru v. Hart, No. 07-CV-7361, 2009 WL 3489376, at *15 (C.D. Cal. Oct. 27, 2009) (citing Khatib v. Cnty. of Orange, No. 07-CV-1012, 2008 WL 822562 *10 (C.D.Cal. Mar. 26, 2008), reversed on other grounds by Khatib v. Cnty. of Orange, 639 F.3d 898 (9th Cir. 2011)); see also Benjamin, 905 F.2d at 578-79 (upholding prison regulation that limited the prisoners' rights to wear their Rastafarian crowns to certain locations within the prison). In any event, a person in defendants' positions could have reasonably concluded that weapons or contraband might be concealed under plaintiff's crown, and, therefore, restricting plaintiff's right to wear his crown to certain locations in the jail would not violate any clearly established constitutional right. See Nicholas v. Tucker, No. 95-CV-9705, 2001 WL 228413, at *2 (S.D.N.Y. March 8, 2001) (finding that the defendant was entitled to qualified immunity because an officer in the defendant's position could have concluded that contraband could have been concealed under the plaintiff's kufi). Accordingly, defendants Favro and Smith are entitled to qualified immunity.
E. Punitive Damages
Defendants also seek dismissal of plaintiff's punitive damages claim against defendant County. Dkt. No. 26-15 at 20. It is well established that, as a municipal entity, defendant County is not subject to exposure to punitive damages, including for claims brought under 42 U.S.C. § 1983. Ciraulo v. City of N.Y., 216 F.3d 236, 238 (2d Cir. 2000) (holding that the Supreme Court's decision in City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), precludes an award of punitive damages against a municipality under section 1983). Because plaintiff's complaint asserts only claims arising under section 1983 against defendant County, I recommend that any punitive damage claim that may be considered as having been asserted against that defendant in plaintiff's complaint be dismissed.
IV. SUMMARY AND RECOMMENDATION
Because plaintiff failed to file and pursue to completion a grievance regarding the claims asserted in his complaint prior to filing this action, he is procedurally barred from pursuing those claims in federal court. Turning to the merits of the plaintiff's First Amendment free exercise claim, I find that the record lacks any evidence from which a reasonable factfinder could conclude that any defendant violated plaintiff's rights. Moreover, even assuming that plaintiff's clearly established constitutional rights were violated by one of the defendants Smith or Favro in this case, it was objectively reasonable for them to believe that their conduct did not violate plaintiff's rights.
In light of my recommendations that defendants' motion be granted in its entirety based on plaintiff's failure to exhaust available administrative remedies, on the merits, and based upon qualified immunity, I have not addressed defendants' remaining contentions regarding plaintiff's municipal liability claim against defendant County or the personal involvement of defendants Favro and Smith.
It is therefore hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 26) be GRANTED and plaintiff's complaint be DISMISSED.
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.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: March 9, 2016
Syracuse, New York