Keitt v. Hawk

• Decision Date: 08 January 2015
• Docket Number: 9:13-CV-850 (GLS/ATB)
• Parties: DEVIN KEITT, Plaintiff, v. T. HAWK, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

DEVIN KEITT, Plaintiff, v. T. HAWK, et al., Defendants.

9:13-CV-850 (GLS/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

January 8, 2015

DAVID KEITT, Plaintiff pro se

MICHAEL G. McCARTIN, Asst. Attorney General for Defendants

ANDREW T. BAXTER, United States Magistrate Judge

REPORT-RECOMMENDATION

This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and LOCAL RULES N.D.N.Y. 72.3(c). In this civil rights complaint, plaintiff alleges that defendants have violated his First Amendment right to practice his religion; his rights under the Religious Land Use and Institutionalized Persons Act, ("RLUIPA"), 42 U.S.C. § 2000cc-1(a); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; and the Rehabilitation Act, 29 U.S.C. § 794(a). (Amended Complaint "AC") (Dkt. No. 38). Plaintiff also cites 42 U.S.C. §§ 1981, 1985, 1986, and 1988 as bases for his claims. (AC ¶ 1). Finally, plaintiff claims that defendants have violated his First Amendment Free Speech rights; his Eighth Amendment right to be free from cruel and unusual punishment, his right to Equal Protection, and his right to Due Process. Plaintiff seeks injunctive and substantial monetary relief. (AC at 63-64).

Presently before the court is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 67). Plaintiff has responded in opposition to the motion and has cross-moved for summary judgment in his favor. (Dkt. No. 73). Defendants have responded in opposition to plaintiff's cross-motion. (Dkt. No. 74). Plaintiff has filed some additional documents in support of his motion. (Dkt. No. 76). For the following reasons, this court agrees with defendants and will recommend granting their motion for summary judgment and denying plaintiff's cross-motion for summary judgment.

DISCUSSION

I. Facts and Contentions

This case was transferred from the Southern District of New York on July 18, 2013, after being filed on March 28, 2012.¹ (Complaint "Compl.") (Dkt. No. 1). Plaintiff filed his second amended complaint ("SAC") March 18, 2013.² (Dkt. No. 38). The second amended complaint lists fifteen defendants in the caption, eleven defendants in the section entitled "Parties," and thirteen defendants in the body of the second amended complaint. (See SAC Caption; ¶¶ 4-12; 15, 37, 53, 70, 83, 97, 136, 150, 172, 187, 205, 236, 250). The caption lists the following defendants: T. Hawk; M. Lira; D. Uhler; J. Otis; D. Rock; B. Fischer; J. Bellnier; D. Martuscello; P. Melecio; C. Miller; D. Ali; A. Perez; E. Killar; State of New York; and the New York State Department of Correction and Community Supervision ("DOCCS").

Two of the defendants in the caption of the complaint (A. Perez³ and E. Killar⁴) are not even mentioned in the body of the complaint. In addition, defendants Miller, Martusciello, Melecio, Perez, Killar, and Bellnier have not been served with the original or the amended complaint.⁵ The remaining defendants who have been served are: T. Hawk; M. Lira; D. Uhler; J. Otis; D. Rock; B. Fischer; DOCCS; State of New York; and Dr. Ali. The claims relating to plaintiff's Ramadan meal allegations occurred at Upstate Correctional Facility ("Upstate"), while his religious clothing claims are asserted against defendants at Coxsackie Correctional Facility ("Coxsackie"). Defendants Fischer and Bellnier are supervisory defendants, who work or worked⁶ in Albany.⁷

A. Defendants Fischer, State of New York, and DOCCS and Upstate Defendants: Hawk, Lira, Uhler, Otis, Rock

Plaintiff alleges that he is of the Muslim faith, is dyslexic, cannot read or write, is a Type-A Diabetic, and has a bullet lodged in his head. Plaintiff states that he musttake medication with food three times per day. (SAC ¶¶ 16-17). Plaintiff states that if he does not take his medication with food, he becomes ill. Plaintiff states that because of these medical restrictions, he cannot participate in the fasting required during Ramadan. (SAC ¶¶ 18-19). Notwithstanding his inability to fast, plaintiff claims that he should be able to "observe the Ramadan fast by receiving Ramahdan [sic] food with everybody else . . . ." (SAC ¶ 19). Plaintiff alleges that on September 1, 2008 and in August of 2010, defendants did not allow plaintiff to obtain the special meal "because of his disability." (SAC ¶ 20). The special meal is served after sundown, to inmates who have fasted during the day. Plaintiff claims that this policy violates his First Amendment rights and his rights under RLUIPA. Plaintiff also claims that providing plaintiff the extra meal at Upstate would be "accommodating" plaintiff's disability under the ADA. (SAC ¶ 30). Plaintiff alleges that defendants Hawk, Lira, and Uhler "conspired" to deprive plaintiff of Equal Protection or "Privileges and Immunities," and states that there is some "racial or perhaps otherwise class based invidious discriminatory animus." (SAC ¶ 34). Plaintiff also attempts to allege some sort of "retaliation" by defendant Hawk by claiming that he "carried out a threat" to prevent plaintiff from participating in the required feast because plaintiff "indicated an intention" to file a lawsuit for excluding him from this "religious experience." (SAC ¶ 31).

Plaintiff repeats almost identical paragraphs against defendants M. Lira, the Deputy Superintendent for Programs at Upstate; D. Uhler, the Upstate Deputy Superintendent of Security; and J. Otis, the Deputy Superintendent for Administrationat Upstate, including the allegation that defendants Lira, Uhler, and Otis carried out a "threat" because plaintiff stated his "intention" to file a law suit. (SAC ¶¶ 37-51 (Lira), 53-68 (Uhler), 70-81 (Otis)). The claims against defendant Rock are also identical, except that plaintiff alleges defendant Rock's involvement only as to the 2010 incident. (SAC ¶ 83, 84-95).

Plaintiff claims that former DOCCS Commissioner Fischer was responsible for the unconstitutional conduct of his subordinates because he "failed to follow guidelines implementing proper procedure and policies to ensure/enforce [state and federal laws and directives]." (SAC ¶ 100). Plaintiff claims that this defendant was "made aware" of the violations based upon "appeals from C.O.R.C.," and that defendant Fischer should have known that there were disabled inmates who needed "accommodations." (SAC ¶ 103).

B. Defendants Fischer, Bellnier, State of New York, and DOCCS and Coxsackie Defendants: Martuscello, Melecio, Miller, and Ali

Plaintiff repeats the religious meal claims against defendant Fischer, but adds claims that plaintiff is not allowed to wear his religious headgear, known as a kefiya, turban, faus, or fezs at all times. (SAC ¶¶ 112-18). These religious clothing claims originated after his transfer to Coxsackie. He makes the same claims about his religious robe or Jālābiyah. (SAC ¶¶ 128-34). Plaintiff has requested permission to wear these head coverings "throughout the facility and on outside trips." (SAC ¶¶ 118, 132). Plaintiff states that the turban must be nine feet long, and the kefiya may be 52 by 52 or 72 by 72 inches. (SAC ¶ 120). Plaintiff states that he is only allowed to wearthese head coverings "in one place" and at religious services, but those inmates who are Sikhs are allowed to wear their turban headgear at all times. (SAC ¶¶ 115-16). Plaintiff alleges that this shows intentional discrimination against Muslims.

Plaintiff also alleges that because he is dyslexic and cannot read, he is entitled to be provided with the "reasonable accommodation" of religious "books on tape" or "auxiliary aides [sic]," while attending religious classes. (SAC ¶¶ 122-27). Plaintiff claims that he informed defendant Fischer that plaintiff "sincerely believes" that he must wear his Jālābiyah Religious Robe. Defendants allow him to wear the robe only "at one place" in the facility and during religious services only. (SAC ¶¶128-29). Plaintiff claims that other inmates are allowed to wear their "Jackits [sic]" throughout the facility and on outside trips, but when he requested permission to do so, he was denied.⁸

Plaintiff claims that Dr. Ali, a Muslim chaplain, denied plaintiff the right to have books on tape and "Auxiliary Aides [sic]." (SAC ¶¶ 207-208). Plaintiff also alleges that defendant Ali refused to put plaintiff on the call-out for Friday religious services in "retaliation" after defendant Ali found out that plaintiff was filing grievances against him. (SAC ¶ 210). Plaintiff also raises the religious clothing claims against this defendant. (SAC ¶¶ 225-35).

Plaintiff's last two served defendants, the State of New York and DOCCS, which plaintiff holds responsible for all his claims, including the Ramadan meals in 2008 and 2010, the religious clothing claims, and "reasonable accommodation" claims. (SAC ¶¶ 236-303).

Defendants have filed a substantial number of exhibits, including plaintiff's deposition, declarations by defendants and non-defendants, and decisions from a previous Northern District of New York case, brought by plaintiff in 2010. (Dkt. No. 67-2-67-26). Rather than detail all the defendants' facts at the outset, I will discuss the evidence as I analyze the issues presented by defendants' motion.

II. Summary Judgment

Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that norational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).

The moving party has the burden to show the absence of...