Barnes v. Fedele

• Decision Date: 13 January 2011
• Docket Number: No. 07–CV–6197L.,07–CV–6197L.
• Citation: 760 F.Supp.2d 296
• Parties: Arrello BARNES, Plaintiff,v.FEDELE, et al., Defendants.
• Court: U.S. District Court — Western District of New York

760 F.Supp.2d 296

Arrello BARNES, Plaintiff,

v.FEDELE, et al., Defendants.

No. 07–CV–6197L.

United States District Court, W.D. New York.

Jan. 13, 2011.

Arrello Barnes, Fallsburg, NY, pro se.Emil J. Bove, Jr., Office of New York State Attorney General, Rochester, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff, Arrello Barnes, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services (“DOCS”), has sued a number of defendants, all of whom at all relevant times were officials or employees of DOCS, alleging that plaintiff's constitutional rights were violated in several respects in 2007, while plaintiff was confined at Southport Correctional Facility.

Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which the Court has converted to a motion for summary judgment under Rule 56. See Dkt. # 66. Some defendants have moved to dismiss all the claims against them; others have moved to dismiss only some of plaintiff's claims. The specifics of defendants' motions are set forth in the discussion of their motions, infra.

PLAINTIFF'S CLAIMS

Plaintiff states in the complaint that, with respect to his religious beliefs, he considers himself a “Hebrew Isrealite” [sic]. See Dkt. # 1 at 30. He also states that because “Hebrew Isrealite” is not a religion that is recognized by DOCS, plaintiff “converted to Jewish on paper” to make it easier for plaintiff to obtain Kosher meals and to follow certain other religious practices, in accordance with his religious beliefs, without interference from DOCS officials and employees. See Dkt. # 1 at 52.

In his first claim, plaintiff alleges that on January 21, 2007, defendant Correction Officer (“C.O.”) Fedele confiscated plaintiff's “religion crown for [plaintiff's] dreadlock,” which plaintiff describes as “religion head wear” that plaintiff wears in accordance with his faith. Dkt. # 1 at 11. Plaintiff states that the constitutional bases for this claim are “religion, due process, and equal protection.” Id.

Plaintiff's second claim alleges that on January 23, 2007, defendants Sgt. Furman and C.O. Murphy “forge[d] a false cell search” indicating that plaintiff's headwear had been confiscated during a search of plaintiff's cell. Dkt. # 1 at 12. Plaintiff alleges that defendants did this “to protect C.O. Fedele cause he confiscated Barnes religion headwear and did not give a contraband receipt.” Id. The stated bases for this claim are “failure to protect, due process and religion, [and] equal to [sic] protection.” Id.

Plaintiff's third claim, based on “failure to protect, religion and due process,” alleges that on January 23, 2007, defendant Lt. Kerbein interviewed plaintiff concerning the confiscation of plaintiff's headwear, and that Kerbein “covered up for C.O. Fedele.” Id. at 13. His fourth claim, based on “equal protection, failure to protect, [and] religion,” is asserted against defendant Chaplain Theresa Stanley, and alleges that she violated a DOCS directive (“Directive 4202”) providing that a chaplain of the inmate's particular faith should ordinarily make the determination whether the inmate's religious head covering is permitted under Directive 4202. Id. at 14.

Plaintiff's fifth claim is brought against DOCS Commissioner Brian Fischer and Deputy Commissioner for Program Services John Nuttall.¹ Plaintiff alleges that he wrote to Fischer to complain about the confiscation of his crown, and that Nuttall, acting on Fischer's behalf, responded in letters that “support[ed] the violations” of plaintiff's rights. Dkt. # 1 at 16. “Failure to protect” and “religion” are the stated bases for this claim. Id.

Plaintiff's sixth claim, also based on “failure to protect” and “religion,” is asserted against Rabbi Howard Matasar. Plaintiff alleges that he complained about these matters to Matasar, and that Matasar “did nothing to protect Barnes religious rights.” Id. at 17. His seventh claim, against Deputy Superintendent Paul Chappius, alleges that Chappius sent plaintiff a memo stating that Southport staff “did follow proper procedure in taking” plaintiff's headwear. Id.; see also id. at 40. The seventh claim is based on “failure to protect, religion, [and] due process.” Id. at 17.

Plaintiff's eighth claim is brought against Deputy Superintendent Angela Bartlett, Acting Deputy Superintendent P. Corcoran, and former Superintendent Michael McGinnis. Plaintiff alleges that these defendants denied his request for Kosher meals, and that they “supported C.O. Fedele, by creating their own policy....” Id. Plaintiff's ninth claim is asserted against Southport Superintendent David Napoli, and alleges that he knew of the alleged violations of plaintiff's rights, but failed to correct them. Plaintiff's tenth claim is brought against Inmate Grievance Program Director Thomas Eagen, and alleges that Eagen “did not ruled [sic] on plaintiff [sic] grievance” concerning these matters, and that “[t]he time limitation has expired.” Id. at 18. All three of these claims assert the same constitutional bases, “equal protection, religion, due process, and failure to protect.” Id.

Although the complaint generally refers simply to “religion” as the basis for some of these claims, I construe these claims as brought under § 1983, based on the Free Exercise Clause of the First Amendment, as well as under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc. While some defendants have moved to dismiss those claims for lack of personal involvement, none of the defendants have moved to dismiss those “religion” claims on the merits.

DISCUSSION

I. Motion to Dismiss by Bartlett, Chappius, Eagen, Fedele, Fischer, Kerbein, McGinnis, Napoli, Nuttall, and Stanley

Defendants Bartlett, Chappius, Eagen, Fedele, Fischer, Kerbein, McGinnis, Napoli, Nuttall, and Stanley have moved (Dkt.# 19) to dismiss most of plaintiff's claims. Specifically, defendants move to dismiss all of plaintiff's claims against them in their official capacities, on the ground of Eleventh Amendment immunity. All these defendants also move to dismiss plaintiff's equal protection, failure-to-protect and due process claims in their entirety. Defendants Eagen, Fischer, Kerbein, McGinnis, Napoli, and Nuttall also move to dismiss all of plaintiff's claims against them on the ground of lack of personal involvement.²

A. Official–Capacity Claims

With respect to the official-capacity claims, defendants' motion is granted in part. In his form complaint, plaintiff indicated that all defendants were being sued in both their individual and official capacities. The law is well established, however, that claims for damages against state employees in their official capacities are deemed to be claims against the state itself, and are barred by the Eleventh Amendment to the United States Constitution. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Dube v. State Univ. of New York, 900 F.2d 587, 594–95 (2d Cir.1990); Colon v. Zydell, 635 F.Supp.2d 264, 267 (W.D.N.Y.2009). To the extent that plaintiff seeks damages, then, plaintiff's claims against defendants in their official capacities are dismissed.

Plaintiff also seeks equitable relief, however, specifically the return of his crown. Claims for prospective injunctive relief against state employees in their official capacities are not barred by the Eleventh Amendment, see Frew v. Hawkins, 540 U.S. 431, 438, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004), although whether a plaintiff is entitled to such relief depends, of course, on whether he can make out a viable constitutional claim.

At this point, it is not clear which of these defendants, if any, might be empowered to give plaintiff the equitable relief that he seeks. To the extent that plaintiff seeks prospective equitable relief, then, defendants' motion to dismiss plaintiff's claims against them in their official capacities is denied without prejudice. See Washington v. Randall–Owens, No. 06–12588, 2007 WL 1153042, at *3 (E.D.Mich. Apr. 18, 2007) (allowing prisoner to proceed against defendants in their official capacities where it was not “apparent exactly which Defendants have the necessary official capacity to provide the relief plaintiff requests”). If it is determined at some point that plaintiff is not entitled to any equitable relief, or that a particular defendant or defendants are not in a position to give plaintiff any equitable relief, then some or all of the official-capacity claims may be subject to dismissal.

B. “Failure to Protect” Claims

Plaintiff's complaint indicates that one of the bases for his second through tenth claims is defendants' alleged “failure to protect” him. In the context of the factual allegations of this case, such claims must be dismissed.

The term “failure to protect,” in prisoner civil rights cases, generally refers to a failure to protect the inmate from physical injury. See, e.g., Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir.1996) (Eighth Amendment imposes a duty on prison officials “to take reasonable measures to guarantee the safety of inmates in their custody”). The complaint in the case at bar, however, does not allege that plaintiff was physically harmed in any way, or even put at risk of physical harm.

Instead, plaintiff appears to be using the term “failure to protect” to mean a failure to intervene, or to prevent or remedy the alleged violations of his constitutional rights. Such an assertion raises other concerns regarding the individual defendants' personal involvement in the alleged violations, which are addressed elsewhere in this Decision and Order. To the extent that the complaint can be read as asserting an Eighth Amendment “failure to protect” claim, however, such claims are dismissed.

C. Equal Protection Claims

In his first, second, fourth,...