Case: 9:09-cv-214 As of: 09/23/2017 09:02 PM EDT 1 of 7
CLOSED,CONSENT,PRO SE
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 6.1.1]
(Prisoner) CIVIL DOCKET FOR CASE #: 9:09−cv−00214−GHL

Kalwasinski v. Maxymillian et al Assigned to: Magistrate Judge George H. Lowe Demand: $8,000,000 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Edward Kalwasinski

Date Filed: 02/20/2009 Date Terminated: 02/08/2012 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Edward Kalwasinski c/o Cheryl Kalwasinksi 3019 Eastchester Rd. #3 Bronx, NY 10469 PRO SE

Brett M. Dignam Morningside Heights Legal Services, Inc. Columbia University Law School 435 West 116th Street New York, NY 10027 212−854−4291 Fax: 212−854−3554 Email: bdigna@law.columbia.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Teri Maxymillian Director of Sex Offender Treatment Program for New York State
Defendant Michael Hogan New York State Office of Mental Health Commissioner TERMINATED: 01/20/2011
Defendant Donald Sawyer Executive Director of CNYPC

represented by Dean J. Higgins Office of Dean J. Higgins 15 Saratoga Circle Saratoga Springs, NY 12866 518−527−5966 Email: djphiggins@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dean J. Higgins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dean J. Higgins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/20/2009

# Docket Text
1 COMPLAINT against Teri Maxymillian, Michael Hogan, Donald Sawyer filed by Edward Kalwasinski.(mnm) (Entered: 02/24/2009)

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02/20/2009 03/10/2009
03/10/2009 04/15/2009 04/15/2009 04/15/2009 04/15/2009 04/17/2009
04/17/2009
05/28/2009 05/29/2009
06/10/2009 06/11/2009
06/18/2009 07/01/2009 08/25/2009 08/31/2009

2 MOTION for Leave to Proceed in forma pauperis filed by Edward Kalwasinski. Motions referred to George H. Lowe. (mnm) (Entered: 02/24/2009)
3 ORDER that the Clerk shall revise the designation of this case, No. 09−CV−00214(DNH/GHL), to reflect a division nine case assignment; granting 2 Motion for Leave to Proceed in forma pauperis and service is directed of the complaint. Signed by Magistrate Judge George H. Lowe on 3/10/09. {order served via regular mail on plaintiff}(nas) (Entered: 03/10/2009)
4 Summons Issued as to Teri Maxymillian, Michael Hogan, Donald Sawyer. (nas, ) (Entered: 03/10/2009)
5 ACKNOWLEDGEMENT OF SERVICE Executed as to Michael Hogan served on 4/13/2009, answer due 5/4/2009. (nas) (Entered: 04/15/2009)
6 ACKNOWLEDGEMENT OF SERVICE Executed as to Teri Maxymillian served on 4/13/2009, answer due 5/4/2009. (nas) (Entered: 04/15/2009)
7 ACKNOWLEDGEMENT OF SERVICE Executed as to Donald Sawyer served on 4/13/2009, answer due 5/4/2009. (nas) (Entered: 04/15/2009)
8 BILL OF COSTS submitted by the US Marshals to recover costs of service in the amount of $24.00. (nas) (Entered: 04/15/2009)
9 Notice of Appearance and Letter Motion from Dean J. Higgins, Esq. for Teri Maxymillian, Michael Hogan, Donald Sawyer requesting Extension of time to answer submitted to Judge George H. Lowe. (Attachments: # 1 Exhibit(s) Notice of Appearance)(Higgins, Dean) (Entered: 04/17/2009)
TEXT ORDER granting 9 Letter Request, Teri Maxymillian answer due 5/29/2009; Michael Hogan answer due 5/29/2009; Donald Sawyer answer due 5/29/2009. Authorized by NAS as per direction of Magistrate Judge George H. Lowe on 4/17/09. {order served via regular mail on all non−ecf parties}(nas) (Entered: 04/17/2009)
10 Letter Motion from Dean J. Higgins, Esq. for Teri Maxymillian, Michael Hogan, Donald Sawyer requesting extension of time to answer submitted to Judge George H. Lowe. (Higgins, Dean) (Entered: 05/28/2009)
TEXT ORDER granting 10 Letter Request, Teri Maxymillian answer due 6/12/2009; Michael Hogan answer due 6/12/2009; Donald Sawyer answer due 6/12/2009. Authorized by NAS as per direction of Magistrate Judge George H. Lowe on 5/29/09. {order served via regular mail on plaintiff}(nas) (Entered: 05/29/2009)
11 ANSWER to 1 Complaint by Teri Maxymillian, Michael Hogan, Donald Sawyer. (Attachments: # 1 Declaration of service of Answer on Plaintiff)(Higgins, Dean) (Entered: 06/10/2009)
12 MANDATORY PRETRIAL DISCOVERY AND SCHEDULING ORDER: Discovery due by 10/11/2009. Dispositive Motions to be filed by 1/10/2010. Signed by Magistrate Judge George H. Lowe on 6/11/09. {order served via regular mail on all non−ecf parties}(nas) (Entered: 06/11/2009)
13 ***STRICKEN FROM THE DOCKET PER DKT NO. 14***REQUEST for Production of Documents and Records by Edward Kalwasinski.(nas ) Modified on 7/1/2009 (nas, ). (Entered: 06/18/2009)
14 ORDER TO STRIKE 13 Request for Production of Documents filed by Edward Kalwasinski. Signed by Magistrate Judge George H. Lowe on 7/1/09. {order served via regular mail on all non−ecf parties}(nas) (Entered: 07/01/2009)
15 MOTION to Compel Motion Hearing set for 9/24/2009 Response to Motion due by 9/8/2009 filed by Edward Kalwasinski. Motions referred to George H. Lowe. (nas) (Entered: 08/25/2009)
TEXT NOTICE of Hearing on Motion 15 MOTION to Compel : ON SUBMISSION ONLY, returnable on 9/24/09. Response to Motion due by 9/8/2009 {notice served via regular mail on all non−ecf parties}(nas) (Entered: 08/31/2009)

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09/04/2009 09/10/2009 09/24/2009
10/08/2009 10/09/2009 10/09/2009 10/13/2009
10/13/2009 11/04/2009 11/04/2009 11/20/2009 11/25/2009 12/14/2009
12/14/2009 01/05/2010

16 Letter Motion from Dean J. Higgins, Esq. for Teri Maxymillian, Michael Hogan, Donald Sawyer requesting Extension of time to respond to Motion submitted to Judge George H. Lowe. (Higgins, Dean) (Entered: 09/04/2009)
17 ORDER granting 16 Letter Request, response to 15 MOTION to Compel : due by 9/24/2009. Signed by NAS as per direction of Magistrate Judge George H. Lowe on 9/10/09. {order served via regular mail on all non−ecf parties}(nas) (Entered: 09/10/2009)
18 RESPONSE in Opposition re 15 MOTION to Compel, 16 Letter Motion from Dean J. Higgins, Esq. for Teri Maxymillian, Michael Hogan, Donald Sawyer requesting Extension of time to respond to Motion submitted to Judge George H. Lowe filed by Teri Maxymillian, Michael Hogan, Donald Sawyer. (Attachments: # 1 Exhibit(s) Letter to plaintiff enclosing responses, # 2 Exhibit(s) Response to discovery demand)(Higgins, Dean) (Entered: 09/24/2009)
19 Letter Motion from Dean J. Higgins, Esq. for Teri Maxymillian, Michael Hogan, Donald Sawyer requesting Extension of discovery deadline to take deposition submitted to Judge George H. Lowe. (Higgins, Dean) (Entered: 10/08/2009)
20 ****VACATED***ORDER granting 19 Letter Request, Dispositive Motions to be filed by 11/20/2009. Signed by NAS as per direction of Magistrate Judge George H. Lowe on 10/8/09. {order served via regular mail on all non−ecf parties}(nas) Modified on 10/9/2009 (nas, ). (Entered: 10/09/2009)
TEXT ORDER that the Clerk shall vacate 20 Order on Letter Request and modify the docket to reflect that Discovery is due by 11/20/2009. Authorized by NAS as per direction of Magistrate Judge George H. Lowe on 10/9/09. {order served via regular mail on all non−ecf parties}(nas) (Entered: 10/09/2009)
21 ORDER granting in part and denying in part 15 Motion to Compel. ORDERED, that defendants shall provide any additional discovery materials responsive to the Pretrial Order within twenty (20) days of the filing date of this Order. ORDERED that the discovery completition deadline is reset to 11/20/09.Signed by Magistrate Judge George H. Lowe on 10/13/09.{order served via regular mail on all non−ecf parties} (nas) (Entered: 10/13/2009)
Set/Reset Scheduling Order Deadlines: Discovery due by 11/20/2009. (nas, ) (Entered: 10/13/2009)
22 MOTION to Compel filed by Edward Kalwasinski. Motions referred to George H. Lowe. (nas) (Entered: 11/04/2009)
TEXT NOTICE of Hearing on 22 MOTION to Compel : ON SUBMISSION ONLY, returnable on 12/7/09. Response to Motion due by 11/20/2009 {notice mailed to all non−ecf parties}(nas) (Entered: 11/04/2009)
23 RESPONSE in Opposition re 22 MOTION to Compel filed by Teri Maxymillian, Michael Hogan, Donald Sawyer. (Attachments: # 1 Declaration of service of discovery responses on Plaintiff)(Higgins, Dean) (Entered: 11/20/2009)
24 RESPONSE to Motion re 22 MOTION to Compel Confirmation of service of verified responses to interrogatories filed by Teri Maxymillian, Michael Hogan, Donald Sawyer. (Attachments: # 1 Declaration of service of verified responses upon Plaintiff)(Higgins, Dean) (Entered: 11/25/2009)
25 DECISION AND ORDER: ORDERED, that plaintiff's 22 Motion to Compel is DENIED AS MOOT. ORDERED, that the discovery in this action is now closed. ORDERED, that the dispositive motion filing deadline is 1/10/2010. Signed by Magistrate Judge George H. Lowe on 12/14/09. (Decision and Order served on plaintiff by regular mail) (alh, ) (Entered: 12/14/2009)
Set Deadline: Per Order dated 12/14/09, Dispositive Motion deadline is 1/10/2010. (alh, ) (Entered: 12/14/2009)
26 Letter Motion from Dean J. Higgins, Esq. for Michael Hogan, Teri Maxymillian, Donald Sawyer requesting brief extension of deadline for dispositive motion submitted to Judge George H. Lowe. (Higgins, Dean) (Entered: 01/05/2010)

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01/05/2010 01/20/2010 01/20/2010 02/23/2010 02/23/2010 03/04/2010 03/04/2010 03/17/2010 03/17/2010 03/17/2010 03/18/2010
04/14/2010 04/14/2010
04/20/2010

27 ORDER granting 26 Letter Request, Dispositive Motions to be filed by 1/22/2010. Signed by NAS as per direction of Magistrate Judge George H. Lowe on 1/5/10.{order served via regular mail on plaintiff} (nas) (Entered: 01/05/2010)
28 Letter Motion from Dean J. Higgins, Esq. for Michael Hogan, Teri Maxymillian, Donald Sawyer requesting extension of time to file dispositive motions submitted to Judge George H. Lowe. (Higgins, Dean) (Entered: 01/20/2010)
29 ORDER granting 28 Letter Request, Dispositive Motions to be filed by 3/1/2010. Signed by MNC per the direction of Magistrate Judge George H. Lowe on 1/20/10. (order served on plaintiff by regular mail) (mnc) (Entered: 01/20/2010)
30 Letter Motion from Dean J. Higgins, Esq. for Michael Hogan, Teri Maxymillian, Donald Sawyer requesting one week extension of motion deadline submitted to Judge George H. Lowe. (Attachments: # 1 Affirmation of service of request upon Plaintiff)(Higgins, Dean) (Entered: 02/23/2010)
TEXT ORDER granting 30 Letter Request, Dispositive Motions to be filed by 3/8/2010. No further extensions will be granted absent a showing of good cause. Authorized by NAS as per direction of Magistrate Judge George H. Lowe on 2/23/10. {order served via regular mail on all non−ecf parties}(nas) (Entered: 02/23/2010)
31 Letter Motion from Dean J. Higgins, Esq. for Michael Hogan, Teri Maxymillian, Donald Sawyer requesting extension to 3/17/2010 to file and serve dispositive motion submitted to Judge George H. Lowe. (Higgins, Dean) (Entered: 03/04/2010)
32 ORDER THAT FOR GOOD CAUSE SHOWN, granting 31 Letter Request, Dispositive Motions to be filed by 3/17/2010. Signed by NAS as per direction of Magistrate Judge George H. Lowe on 3/4/10. {order served via regular mail on all non−ecf parties}(nas) (Entered: 03/04/2010)
33 MOTION for Summary Judgment filed by Edward Kalwasinski. (Attachments: # 1 Statement of Material Facts, # 2 Memorandum of Law) (nas) (Entered: 03/17/2010)
TEXT NOTICE of Hearing on Motion 33 MOTION for Summary Judgment : ON SUBMISSION ONLY, returnable on 4/19/10. Response to Motion due by 4/2/2010 Reply to Response to Motion due by 4/8/2010. {notice served via regular mail on all non−ecf parties}(nas) (Entered: 03/17/2010)
34 Letter Motion from Dean J. Higgins, Esq. for Michael Hogan, Teri Maxymillian, Donald Sawyer requesting extension to file dispositive motions submitted to Judge George H. Lowe. (Higgins, Dean) (Entered: 03/17/2010)
35 ORDER granting 34 Letter Request, Dispositive Motion filing deadline is reset to 4/14/2010, granting an extension of time to file a response to 33 MOTION for Summary Judgment : Response to Motion due by 4/14/2010. Signed by NAS as per direction of Magistrate Judge George H. Lowe on 3/18/10. {order served via regular mail on all non−ecf parties}(nas) (Entered: 03/18/2010)
36 RESPONSE in Opposition re 33 MOTION for Summary Judgment Main response contained in Defendants' Motion for Summary Judgment filed by Michael Hogan, Teri Maxymillian, Donald Sawyer. (Attachments: # 1 Exhibit(s) Response to plaintiff's Rule 7 statement)(Higgins, Dean) (Entered: 04/14/2010)
37 First MOTION for Summary Judgment Motion Hearing set for 5/20/2010 09:30 AM in Syracuse before Magistrate Judge George H. Lowe Response to Motion due by 5/3/2010 Reply to Response to Motion due by 5/10/2010. filed by Michael Hogan, Teri Maxymillian, Donald Sawyer. (Attachments: # 1 Statement of Material Facts, # 2 Exhibit(s) Cautionary warning to pro se litigant regarding responsive papers, # 3 Declaration of Dean Higgins, # 4 Exhibit(s) numbers 1−14 attached to and described in Higgins declaration, # 5 Declaration of Imam Najeeullah, # 6 Declaration of Elaine Dziadyk, # 7 Declaration of Valerie Fasteson, # 8 Memorandum of Law, # 9 Appendix Simmons case, # 10 Appendix Majid case) (Higgins, Dean) (Attachment 8 replaced on 4/15/2010) (nas, ). (Entered: 04/14/2010)
38 REQUEST FOR ENTRY OF DEFAULT as to Michael Hogan, Teri Maxymillian, Donald Sawyer for failure to respond to 33 MOTION for Summary Judgment by Edward Kalwasinski. (nas) (Entered: 04/20/2010)

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04/20/2010 04/29/2010 07/28/2010 07/28/2010 12/23/2010
01/12/2011 01/13/2011 01/20/2011
02/09/2011 02/09/2011

39 ORDER that 38 Request for Entry of Default filed by Edward Kalwasinski is DENIED. Defendants responded in opposition to plaintiff's motion for summary judgment on 4/14/10. The Clerk shall send plaintiff a copy of the docket sheet. Signed by MAC as per direction of Magistrate Judge George H. Lowe on 4/20/10. {order served via regular mail on plaintiff}(nas) (Entered: 04/20/2010)
40 RESPONSE in Opposition re 37 First MOTION for Summary Judgment filed by Edward Kalwasinski. (nas) (Entered: 04/29/2010)
41 Letter Motion for Edward Kalwasinski requesting a copy of defendants' response to plaintiff's motion for summary judgment and an updated copy of the docket sheet. (nas ) (Entered: 07/28/2010)
TEXT ORDER granting 41 Letter Request. The Clerk is directed to provide plaintiff with a copy of defendants' response to his motion for summary judgment (dkt no. 36) and a copy of the docket sheet. Authorized by NAS as per direction of Magistrate Judge George H. Lowe on 7/28/10. {order, dkt no. 36 and docket sheet served via regular mail on plaintiff}(nas) (Entered: 07/28/2010)
42 REPORT−RECOMMENDATIONS and ORDER: RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 37 ) be GRANTED IN PART AND DENIED IN PART. Recommend that the Court grant Defendants' motion and dismiss the following claims: (1) the free exercise and RLUIPA claims regarding the use of bowls and utensils; (2) the free exercise and RLUIPA claims regarding CNYPC's practice of serving fish on Fridays; (3) any Establishment Clause claim regarding CNYPC's practice of serving fish on Fridays; (4) the due process claim; (5) the Eighth Amendment claim; and (6) all claims against Defendant Hogan. RECOMMENDED that Plaintiff's motion for summary judgment (Dkt. No. 33 ) be DENIED. RECOMMENDED that the following claims survive the pending motions: (1) the free exercise and RLUIPA claims regarding the lack of Al Jumu'ah services at CNYPC; (2) the free exercise and RLUIPA claims regarding the lack of a Halal menu at CNYPC; (3) the claim regarding CNYPC's requirement that Plaintiff attend classes on Fridays; and (4) the claim that Defendants denied Plaintiff sacred foods on holidays. The parties should be prepared, in further proceedings, to fully brief whether the legitimate Penological interest or the compelling government interest test should be applied to this case. Objections to R&R due by 1/6/2011 Case Review Deadline 1/13/2011. Signed by Magistrate Judge George H. Lowe on 12/22/10. {r&r and copies of the cited cases served via regular mail on plaintiff}(nas ) (Entered: 12/23/2010)
43 MOTION to Appoint Counsel filed by Edward Kalwasinski. Motions referred to George H. Lowe. (nas, ) (Entered: 01/12/2011)
44 Letter Motion from Dean J. Higgins for Michael Hogan, Teri Maxymillian, Donald Sawyer requesting extension of case review deadline submitted to Judge George H. Lowe. (Higgins, Dean) (Entered: 01/13/2011)
45 DECISION AND ORDER: The 42 Report and Recommendations is accepted and adopted in all respects. ORDERED that plaintiff's 33 Motion for Summary Judgment is DENIED. ORDERED that 37 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as set forth in this Decision and Order. The parties are advised that in all further proceedings, they should be prepared to fully brief whether the legitimate Penological interest or the compelling government interest test should be applied to this case. Signed by Judge Hurd on 1/20/11.{order served via regular mail on all non−ecf parties}(nas) (Entered: 01/20/2011)
46 NOTICE by Edward Kalwasinski that in 3 weeks he will be released from CNYPC and his new address will be: c/o Cheryl Kalwasinski; 3019 Eastchester Rd #3, Bronx NY 10469 and request for a copy of the docket sheet to be sent to him at CNYPC. (nas) (Entered: 02/09/2011)
TEXT NOTICE: The Court is in receipt of plaintiff's 46 Notice that he will be relased from CNYPC in 3 weeks and of his new address. Plaintiff is advised to confirm in writing to the Court and opposing counsel of his new address upon release from CNYPC. An updated copy of the docket sheet is provided to plaintiff with this Notice via regular mail. (nas) (Entered: 02/09/2011)

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03/04/2011 05/12/2011 05/12/2011 05/19/2011
08/19/2011 08/25/2011
08/29/2011 09/27/2011
09/29/2011
10/07/2011 11/09/2011 11/10/2011 11/14/2011 11/14/2011 11/14/2011

47 NOTICE of Change of Address by Edward Kalwasinski Effective Date 3/1/11 New Address: c/o Cheryl Kalwasinski, 3019 Eastchester Rd #3, Bronx NY 10469 (nas) (Entered: 03/04/2011)
NOTICE of Hearing: Status Telephone Conference set for 5/19/2011 at 10:00 AM in Syracuse before Magistrate Judge George H. Lowe. Court shall initiate telephone conference call. (ptm, ) (Entered: 05/12/2011)
Notice of Hearing of Status Conference served via regular mail on all non−ecf parties (nas) (Entered: 05/12/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Status Conference held on 5/19/2011. Brett Dignam, Esq.; Dean Higgins, AAG for Defendants. Court reviews case with prospective Pro Bono Counsel. Ms. Dignam will discuss case with Mr. Kalwasinski and report to Court with decision as to pro bono representation and further conference call. (FTR Recorded) (ptm, ) (Entered: 05/26/2011)
TEXT NOTICE of Hearing: Telephone Conference set for 8/25/2011 at 02:30 PM before Magistrate Judge George H. Lowe. Chambers will initiate the call (text notice served on Plaintiff via regular mail).(rjb, ) (Entered: 08/19/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Status Conference held on 8/25/2011. Appearances: Brett Dignam, Esq. and Edward Kalwasinski for Plaintiff; Dean Higgins, AAG for Defendants. Attorney Dignam will work on getting admitted ASAP and will provide AAG Higgins with a list of needed documents. Parties will consent to trial before Judge Lowe. Jury trial tentatively scheduled for 11/30/2011 in Albany. Pretrial submissions will be due one week before trial. A follow up conference will be scheduled. (FTR Recorded) (rjb, ) (Entered: 08/26/2011)
TEXT NOTICE of Hearing: Status Conference set for 9/27/2011 at 02:30 PM before Magistrate Judge George H. Lowe. Chambers will initiate the call (text notice served on Plaintiff via regular mail).(rjb, ) (Entered: 08/29/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Status Conference held on 9/27/2011. Appearances: Brett Dignam, Esq. for Plaintiff; Dean Higgins, AAG for Defendants. A settlement conference will be scheduled with Judge Lowe in Albany. Parties will file a consent to proceed before Judge Lowe for trial. (FTR Recorded) (rjb, ) (Entered: 09/27/2011)
48 ATTORNEY APPOINTMENT ORDER: Plaintiff having renewed his request for the appointment of pro bono trial counsel. (Dkt No. 43 ). Good Cause appearing for that respect, it is Ordered that Attorney Brett M. Dignam for Edward Kalwasinski, appointed as pro bono trial counsel. Signed by Magistrate Judge George H. Lowe on 9/29/11. {order served via regular mail on plaintiff}(nas) (Entered: 09/29/2011)
49 NOTICE of Hearing: Settlement Conference set for 11/2/2011 at 09:00 AM in Albany before Magistrate Judge George H. Lowe. (Attachments: # 1 )(rjb, ) (Entered: 10/07/2011)
TEXT NOTICE of Hearing: Telephone Conference set for 11/15/2011 at 02:00 PM before Magistrate Judge George H. Lowe. Chambers will initiate the call.(rjb, ) (Entered: 11/09/2011)
50 NOTICE by Teri Maxymillian, Donald Sawyer of signed consent for reference of matter to Magistrate Judge for trial (Attachments: # 1 Declaration of service of consent to refer matter to Magistrate Judge)(Higgins, Dean) (Entered: 11/10/2011)
51 First MOTION in Limine Concerning the Standard of Review for Plaintiff's Claims filed by Edward Kalwasinski. (Attachments: # 1 Memorandum of Law) (Dignam, Brett) (Entered: 11/14/2011)
Magistrate Judge George H. Lowe no longer assigned to case. (nas, ) (Entered: 11/14/2011)
52 CONSENT to Jurisdiction by US Magistrate Judge. So Ordered by Judge Hurd on 11/14/11. (nas) (Entered: 11/14/2011)

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11/14/2011 11/14/2011
11/15/2011 11/15/2011 11/15/2011
11/15/2011
11/17/2011 11/18/2011 11/21/2011 11/21/2011 11/22/2011
01/31/2012 02/07/2012 02/07/2012 02/08/2012

Dkt No. 52 served via regular mail on all non−ecf parties (nas ) (Entered: 11/14/2011)
53 MOTION for Judgment on the Pleadings, MOTION to Strike Motion Hearing set for 11/28/2011 11:00 AM in Albany before Magistrate Judge George H. Lowe Response to Motion due by 11/14/2011 Reply to Response to Motion due by 11/17/2011. filed by Edward Kalwasinski. (Attachments: # 1 Memorandum of Law Memorandum of Law in Support of Plaintiffs Motion for Partial Judgment on the Pleadings Regarding Certain Defenses, or in the Alternative to Strike Those Defenses) (Dignam, Brett) (Entered: 11/14/2011)
54 STATUS REPORT regarding discovery and possible resolution by Teri Maxymillian, Donald Sawyer. (Higgins, Dean) (Entered: 11/15/2011)
55 ORDER directing Mental Hygiene Legal Service to release Plaintiff's records. Signed by Magistrate Judge George H. Lowe on 11/15/11. (rjb, ) (Entered: 11/15/2011)
56 MOTION for Partial Summary Judgment Motion Hearing set for 11/28/2011 11:00 AM in Albany before Magistrate Judge George H. Lowe Response to Motion due by 11/14/2011 Reply to Response to Motion due by 11/17/2011. filed by Edward Kalwasinski. (Attachments: # 1 Memorandum of Law, # 2 Statement of Material Facts, # 3 Exhibit(s)) (Dignam, Brett) (Entered: 11/15/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Telephonic Settlement Conference held on 11/15/2011. Appearances: Brett Dignam, Esq. and Edward Kalwasinski for Plaintiff; Dean Higgins, AAG for Defendants. Mr. Higgins still does not have any monetary settlement authority but hopes to by the end of the week. Judge Lowe and counsel confer on trial issues. Ms. Dignam will provide Mr. Higgins with documents that Plaintiff intends to enter into evidence by Friday, except for the documents from the MHLS file that they do not have yet. Plaintiff intends to file a partial summary judgment motion. No trial briefs will be filed. A follow up conference will be scheduled. (FTR Recorded) (rjb, ) (Entered: 11/18/2011)
TEXT NOTICE of Hearing: Telephone Settlement Conference set for 11/21/2011 at 01:00 PM before Magistrate Judge George H. Lowe. Chambers will initiate the call.(rjb, ) (Entered: 11/17/2011)
57 Letter from Judge Lowe to counsel dated 11/18/11. (rjb, ) (Entered: 11/18/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Telephone Settlement Conference held on 11/21/2011. Appearances: Brett Dignam, Esq. for Plaintiff; Dean Higgins, AAG for Defendants. Case did not settle, further conference to be held on 11/22/2011. (rjb, ) (Entered: 11/21/2011)
TEXT NOTICE of Hearing: Telephone Settlement Conference set for 11/22/2011 at 12:00 PM before Magistrate Judge George H. Lowe. Chambers will initiate the call.(rjb, ) (Entered: 11/21/2011)
TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Telephone Settlement Conference held on 11/22/2011. Appearances: Brett Dignam, Esq. for Plaintiff; Dean Higgins, AAG for Defendants. Case has settled. Counsel will confer on the injunctive relief part of the settlement. The Court will contact counsel in a week or so for a status report. (FTR Recorded) (rjb, ) (Entered: 11/23/2011)
TEXT NOTICE of Hearing: Status Conference set for 2/7/2012 at 03:30 PM before Magistrate Judge George H. Lowe. Chambers will initiate the call.(rjb, ) (Entered: 01/31/2012)
58 STIPULATION Stipulation and Order of Discontinuance Pursuant to Rule 41(a) by Edward Kalwasinski submitted to Judge Lowe. (Dignam, Brett) (Entered: 02/07/2012)
TEXT NOTICE: The conference call scheduled for 2/7/12 is hereby cancelled. (rjb, ) (Entered: 02/07/2012)
59 STIPULATION AND ORDER of Discontinuance Pursuant to Rule 41(A). Signed by Magistrate Judge George H. Lowe on 2/8/12. (served on plaintiff by regular mail)(alh, ) (Entered: 02/08/2012)

 
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~IS 44 {Rev. 11/04) Case 9:09-cv-00214-GCHILVIDLoCcuOmVeEntR1SHFiEleEdT02/20/09 Page 10 of 10

The JS 44 civil cover sheet and the information contained herein neither by local rules of court. This form, approved by the Judicial Conference

replace nor supplement the filing and service of pleadings or other papers as required by of the United States in September 1974, is required for the use of the Clerk ofCoun for

law, except as the purpose of

provided mmanng

the CIVil docket sheet. {SEE INSTRUCTIONS ON THE REVERSE OF THE FORNI.)

I. (a) PLAINTIFFS
C.nL..:, ~cz~ \h.A L t.:l A. ~ .:r w ~ ~I-
(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

I DEFENDANTS

~r- 1

."'1c-Yjm; I) i c.,.,( l> • c~c-\ c\

m·\Lh,o-..~\ F J-/o_jc...1 c~,..,,"1·..>.s·,,_,.,.cr

Uu.'\t,.\,\ ~c....W
County of Residence of First Listed Defendant

'O)n<e·!.1~1,,2:';4-\<JfbL1-.1J, 1

+,vc
'I CY7
1

:~),rcc~r <!~de.

(INU.S.PLA!NT!FFCASESONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND lNVOL VED.

(c) Attorney's (Finn Name, Address, and Tclepbone Number) ..

rrea ~~

[ d_ ,,.nc-·d. \<_ C:, \ 1.0..:) :::- 1 '\ .)It_ I

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

0 I U.S. Government
Plaintiff

)(3 Federal Question {U.S. Government Not a Pany)

0 2 U.S. Government
Defendant

0 4 Diversity
(Indicate Citizenship of Parties in lten1lll)

&.,,,e;<>. \ o\ ~~::...: ·y(Jd<.. .S-\A 1-<f-

('·C' ·. ''-' NCW' o[Y.._ /t?...O?

III. CITIZENSHIP OF P INCIPAL PARTIES{Place an ''X" in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendaot)

Citizen ofThis State

PTF DEF
01 01 Incorporated or Prin~ipal Place

PTF DEF
0 4 04

of Business In This State

Citizen of Anolher State

0 2 0 2 Incorporated ctnd Principal Place
of Business In Another State

0 5 05

Citizen or Subject of a

0 3 0 3 Foreign Nation

0 6 06

IV NATURE OF SUIT (Place an "X" in One Box Onlvl
I·. "'''·'~'""CONTRACT· A.:. ?i~~ P.."ilii>~"""~"'"~"'TORTS. ;~;.;..1.;''4(''?1~~-s:;,,.~~~)>;.:,:;.~~j.<':l\ . FOR:FEirt:URE/PENAbTY. '~~ .,;:,<;..;<i'"'''BANKRU'PTCY~ ... .. ...,:. 'OTHBR'S'FATUTES

0 l!O Insurance

PERSONAL INJURY

0 120 Marine

0 3I0 Airplane

0 130 Miller Act

0 3 I 5 Airplane Product

0 140 Negotiable lustrumcot

Liability

0 150 Recovery of Overpayment 0 320 Assault, Libel &

& Eoforcetnenr ofJudgment

Slander

0 151 Medicare Act

0 330 Federal Employers'

0 I52 Recovery of Defaulted

liability

Student Loans

0 340 Marine

PERSONAL INJURY 0 6 10 Agriculture

0 362 Personal Injury - 0 620 Other Food & Drug

Med. Malpractice

0 625 Drug Related Seizure

0 365 Personal Injury •

of Property 21 USC 881

Product Liability

0 630 Liquor Laws

0 368 Asbestos Personal 0 640 R.R. & Truck

Injury Product

0 650 Airline Regs.

Liability

0 660 OC<Upational

PERSONAL PROPERTY

Safety/Health

0 422 Appeal 28 USC 158

0

0 423 Withdrawal

0

28 usc 157

0

0

....,-:fliROPER'FY. Jnr.HTS "''"' 0

0 820 Copyrights

0

0 830 Patent

0 840 Trademark

0

0

(Excl. Veterans)

0 345 Marine Product

0 153 Recovery of Overpayment

Liability

0 370 Other Fraud 0 37 I Truth in Lending

0 690 Other

0

0 ·'<'&'l'<i\~".~L.tBOR __::;;-.:(~/'-\.\'.~:0·-'.i< .,..:.<TOClAVSE · UR1TV ·. ..... \..:~

ofVeteran's Benefits
0 160 Stockholders' Suits 0 190 Other Contract
0 195 Contract Product Liability 0 196 Franchise

0 350 Motor Vehicle 0 355 Motor Vebiclc
Product Liability
0 360 Other Personal
Injury

0 380 Other Personal

0

Propcny Damage

0 385 Propeny Damage 0

Product Liability

0

IRE:ALi PROPERTY.ii\":<;-oc!f ".':•IICfJClVII:,RIGHTS ·':'.·;.'{j)'~~+ PRlSQNER'PETITIONS ,. 0

0 2 I0 Land Condemnation 0 220 Foreclosure
0 230 Rent Lease & Ejectment 0 240 Tons to Land 0 245 Tort Product Liability 0 290 All Other Real Propcny

0 441 Voting

0 S 10 Motions to Vacate 0

0 442 Employn1eut

Sentence

0

0 44 3 Housing/

Habeas Corpus:

Accommodations

0 530 General

0 444 Welfare

0 535 Death Penalty

0 445 Amer. w/Disabilities- 0 540 Mandan1us & Other

7 10 Fair Labor Standards Act
720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reponing
&. Disclosure Act 7 40 Railway Labor Act 790 Olher Labor Litigation 791 Empl. Ret. Inc.
Security Act

0 861 HlA (l395fl)

0 862 Black Lung (923)

0

0 863 DIWC/DIWW (405(g))

0 864 SSID Title XVI

0

0 865 RSI (405(g))

0

·"«FEDERA'L'l'AKSUl'FS · ''·~ 0

0 870 Taxes (U.S. Plaintiff

0

or Defendant)

0

0 871 IRS-Third Pany

0

26 usc 7609

0

En1ployment

0 SSO Civil Rights

0 446 Amer. w/Disabilities • 0 555 Pri•on Condition

0

Other
)( 440 Other Civil Rights

400 State Rt:apponionment 4 10 Antitrust 430 Banks and Banking 450 Commerce 4 60 Deponation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credi1 490 Cable/Sal TV 8 tO Selective Service 850 Securities/Conunoditiesl
Exchange 875 Customer Challenge
12USC34l0 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Acl 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of lnfonnation
Act 900Appeal of Fee Dctennination
Under Equal Access to Ju.stice 950 Constinnionality of State Statutes

V. ORIGIN
)It I Original
P r o c e e d in

(Place an "X" in One Box Only)

0 2 Removed from

0 3 Remanded from
A ellate Court

0 0 TransfetTcd from
5 another district

6 M ultidistrict

7

VI. CAUSE OF ACTION ~~~~-+~~~~L+~~~~~~~~~~~QQ~~~L-~d~S~.~~~~~~

VII. REQUESTED IN COMPLAINT:

s; \\0\o8;n <;; ·, DEMANDS v.:. rYI',

o\\c'.o,v1-D. O-Qr.xQ•,J~;I..ooJCUHREYC

K YES only
DEMAND:

if

demanded
Yes

in

complaint:
0 No

VIII. RELATED CASE(S)
IF ANY

(See instructions):

JUDGE

DOCKET NUMBER

DATE

SIGNATURE OF ATTORNEY OF RECORD

b ectu04d t<oi?ula.Oc ;:1 £co

------------- -------- RECEIPT N

AMOUNT

------- ----------- APPLYING IFP

JUDGE _____________ MAG. JUDGE

 
 Case 9:09-cv-00214-GHL Document 42 Filed 12/23/10 Page 1 of 24

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

EDWARD KALWASINSKI,

Plaintiff,

9:09-CV-0214

v.

(DNH/GHL)

TERRI MAXYMILLIAN, MICHAEL HOGAN, DONALD SAWYER,

Defendants. _____________________________________________

APPEARANCES:

OF COUNSEL:

EDWARD KALWASINSKI, #179041 Plaintiff pro se Central New York Psychiatric Center P.O. Box 300 Marcy, New York 13403

HON. ANDREW M. CUOMO Attorney General for the State of New York
Counsel for Defendants The Capitol Albany, New York 12224

DEAN J. HIGGINS, ESQ.

GEORGE H. LOWE, United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has

been referred to me for Report and Recommendation by the Honorable David N. Hurd, United

States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Edward

Kalwasinski alleges that Defendants violated his right to exercise his religion at the Central New

York Psychiatric Center ("CNYPC"). Currently pending before the Court are cross-motions for

summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. Nos. 33 and 37.) For

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the reasons that follow, I recommend that Defendants’ motion be granted in part and denied in part and that Plaintiff's motion be denied. I. FACTUAL AND PROCEDURAL SUMMARY
On June 13, 2007, Plaintiff was civilly committed to CNYPC pursuant to Article 10 of New York's Mental Hygiene Law. (Dkt. No. 1 at 3 ¶¶ 1-2.) Plaintiff informed "administrators"1 that he was a Muslim and needed to participate in all of the activities required by his faith, including prayer, meals, and ceremonies. Id. at 3-4 ¶ 3.
Plaintiff alleges that Defendants Terri Maxymillian (the director of the Sex Offender Treatment Program at CNYPC), Michael Hogan (the commissioner of the New York Office of Mental Health), and Donald Sawyer (the executive director of CNYPC) violated his constitutional rights by (1) not allowing Al-Jumu'ah prayer on Fridays; (2) forcing Plaintiff to eat food from bowls and with plastic silverware contaminated with pork from prior meals eaten by non-Muslims; (3) denying Plaintiff sacred foods during holidays; (4) forcing Plaintiff to eat fish on Fridays "as the church of Catholics require[s]"; and (5) forcing Plaintiff to attend Sex Offender Treatment Program ("SOTP") classes on Fridays. Id. at 4-5 ¶¶ 4-7.2 II. APPLICABLE LEGAL STANDARDS
A. Legal Standard Governing Motions for Summary Judgment Under Federal Rule of Civil Procedure 56, summary judgment is warranted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no

1

The complaint does not identify these "administrators" by name.

2

Plaintiff's motion for summary judgment focuses entirely on the Al Jumu'ah issue.

(Dkt. Nos. 33-1, 33-2.) Defendants, too, focus largely on the Al Jumu'ah issue.

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genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). The nonmoving party must do more than “rest upon the mere allegations . . . of the [plaintiff’s] pleading” or “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). Rather, a dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material3 fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008).
B. Legal Standard Governing Motion to Dismiss for Failure to State a Claim To the extent that a defendant’s motion for summary judgment under Federal Rule of Civil Procedure 56 is based entirely on the allegations of the plaintiff’s complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). As a result, “[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.” Schwartz v. Compagnise Gen.

3

A fact is “material” only if it would have some effect on the outcome of the suit.

Anderson, 477 U.S. at 248.

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Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968) (citations omitted); accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) (“This Court finds that . . . a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.”). Accordingly, it is appropriate to summarize the legal standard governing Federal Rule of Civil Procedure 12(b)(6) motions to dismiss.
A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted. In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown that the pleader is entitled to relief.” Id. at 1950 (internal citation and punctuation omitted).
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, “the tenet that a court must accept as true all of the allegations
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contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. III. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. Religion Claims 1. Applicable Standard Depending on the circumstances, different standards apply to claims that state actors have violated an individual's right to freely exercise religion. Generally, in order to satisfy the Free Exercise Clause of the First Amendment, government actions that substantially burden a religious practice must be justified by a compelling government interest. Sherbert v. Verner, 374 U.S. 398 (1963). However, due to the unique concerns of the prison setting, prisoners’ First Amendment free exercise rights must be balanced against the interests of prison officials engaged in the complex duties of administering the penal system. Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). Thus, a prison regulation or individualized decision to deny a prisoner the ability to engage in a religious exercise “is judged under a reasonableness test less restrictive than that ordinarily applied [to burdens on fundamental rights]: a regulation that burdens a [prisoner’s] protected right passes constitutional muster if it is reasonably related to legitimate penological interests.” Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006) (quoting O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (punctuation omitted). The Second Circuit has not decided which standard applies to individuals, like Plaintiff, who are civilly committed to locked psychiatric facilities that share characteristics with penal institutions. District courts in the Second Circuit are split on the issue. Compare Carney v.
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Hogan, No. 9:08-CV-1251 (DNH/ATB), 2010 U.S. Dist. LEXIS 59439, at *8, 2010 WL 2519121, at *3 (N.D.N.Y. Mar. 30, 2010) (applying substantial burden/compelling interest test to CNYPC patient's free exercise claim) and Pratt v. Hogan, 631 F. Supp. 2d 192, 198 (N.D.N.Y. 2009) (same) (Hurd, J.), with Lombardo v. Holanchock, No. 07 Civ. 8674, 2008 U.S. Dist. LEXIS 48753, at *16-17, 2008 WL 2543573, at *6 (S.D.N.Y. June 25, 2008) (applying legitimate penological purpose test to Mid-Hudson Psychiatric Center patient's free exercise claim) and Abdul-Matiyn v. Pataki, No. 9:06-CV-1503, 2008 U.S. Dist. LEXIS 118430, at *32, 2008 WL 974409, at *12 (N.D.N.Y. Apr. 8, 2008) (applying legitimate penological purpose test to CNYPC patient's free exercise claim) (Hurd, J.).4 In an abundance of caution, I will consider Plaintiff's claims in the context of each standard.5
Plaintiff's religious rights are also protected by the Religious Land Use and Institutionalized Persons Act. ("RLUIPA").6 RLUIPA, like the Free Exercise Clause as applied to non-prisoners, applies a compelling governmental interest test. Specifically, RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise of a

4

The Court will provide Plaintiff with a copy of this unpublished decision in

accordance with the Second Circuit’s decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009).

5

Defendants' position is that the legitimate penological interest test should apply

because "Plaintiff has made reference to prisoner litigation in his complaint and has not

suggested that the analysis for a free exercise claim by an involuntarily committed individual is

different from the analysis applied to prisoners' free exercise claims." (Dkt. No. 37-8 at 3,

citation to complaint omitted.)

6

Although Plaintiff’s complaint does not explicitly claim that Defendants are liable

under RLUIPA, I am required to construe the complaint liberally, interpreting it to raise the

strongest possible arguments that it suggests. Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010).

Moreover, Plaintiff refers to RLUIPA in his motion for summary judgment. (Dkt. No. 33-2 at 5.)

Defendants do not address RLUIPA.

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person residing in or confined to an institution7 . . . unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."8 42 U.S.C. § 2000cc-1(a).
2. Al Jumu'ah Service Plaintiff alleges that Defendants violated his religious rights by failing to hold proper Al Jumu'ah services. (Dkt. No. 1 at 4 ¶ 4(a).) Defendants move for summary judgment of this claim, arguing that the unavailability of proper Al Jumu'ah services was caused by legitimate penological interests. (Dkt. No. 37-8 at 5.) a. Facts "Al Jumu'ah is an important service for Muslims. Unlike other Muslim daily prayers, it is not a prayer that can be worshiped individually. It is a congregate prayer performed every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer. . . . There is no alternative means of attending Jumu'ah. Attendance at the congregational prayer is obligatory on all men in the Muslim religion." (Najeeullah Decl., Dkt. No. 37-5 ¶¶ 10-11.) Plaintiff alleges that CNYPC stopped offering Al Jumu'ah services in August 2008. (Dkt. No. 33-1 ¶ 1.)

7

An "institution" is any facility or institution that is "owned, operated, or managed

by, or provides services on behalf of any State" and is, inter alia, "for persons who are mentally

ill, disabled, or retarded, or chronically ill or handicapped" or "a jail, prison, or other correctional

facility." 42 U.S.C. § 1997(1) (2010).

8

Although neither the Supreme Court nor the Second Circuit has yet decided the

issue, the consensus of opinion among district courts in the Second Circuit is that RLUIPA does

not authorize suits for money damages. See Pugh v. Goord, 571 F. Supp. 2d 477, 506-09

(S.D.N.Y. 2008). That issue is currently pending before the Supreme Court in Sossamon v.

Texas (No. 08-1438, argued Nov. 2, 2010). That issue does not affect the analysis here because

Plaintiff requests both money damages and injunctive relief. (Dkt. No. 1 at 7-9.)

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At CNYPC, a Muslim prayer service or study class9 is offered on Fridays from 9:3010:30 a.m. (Defs.' Ex. 1, Dkt. No. 37-4 at 2.) Imam Malik Najeeullah presides. (Dkt. No. 37-5 ¶ 7.) Plaintiff's official schedule at CNYPC includes this event. (Defs.' Ex. 9, Dkt. No. 37-4 at 45.) Defendants state that "CNYPC was under the mistaken belief that the Al Jumu'ah prayer could be worshiped individually and that the regularly scheduled worship time for Muslims at 9:30 a.m. on Fridays was available to satisfy the desire of resident Muslims to worship the prayer." (Dziadyk Decl., Dkt. No. 37-6 ¶ 12.)
On January 22, 2009, Plaintiff sent a complaint to Defendant Maxymillian objecting to the lack of Al Jumu'ah services. (Pl.'s Ex. C, Dkt. No. 33-2 at 11 ¶ 1.) Defendant Maxymillian responded, stating that "CNYPC . . . offers Muslim prayer services on Friday mornings that are led by Imam Najeeullah. Those services have not been changed nor has [Plaintiff] been denied the ability to attend." (Defs.' Ex. 7, Dkt. No. 37-4 at 40.)
On February 20, 2009, Plaintiff filed this action. (Dkt. No. 1.) On March 18, 2009, Plaintiff sent a complaint to Defendant Sawyer in which he objected to the lack of Al Jumu'ah services. (Pl.'s Ex. G, Dkt. No. 33-2 at 17.) Defendant Sawyer responded that "Muslim services are offered on Fridays at 9:30 a.m. This time was set to meet both the needs of the residents and the Imam's schedule. The Imam has informed us that formal services do not need to happen at noon as residents can participate individually and from any

9

At various times, CNYPC officials, including Defendants, have referred to this

event as a "prayer service." (Dkt. No. 33-2 at 18; Dkt. No. 37-4 at 32, 40.) Imam Najeeullah,

who presides over the event, refers to it as a "class." (Dkt. No. 33-2 at 16; Dkt. No. 37-5 ¶ 7.)

8

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location at that time."10 Id. at 18. On March 27, 2009, Imam Najeeullah issued a memorandum titled "Jumu'ah Prayer or
the Friday Worship Service for Muslim[s]." (Pl.'s Ex. A, Dkt. No. 33-2 at 7.) It is not clear to whom the memorandum was directed, but the document states that Elaine Dziadyk (the supervisor of rehabilitation services) and S. Montrose (a social worker supervisor) received copies. Id. Imam Najeeullah explained that Al Jumu'ah should occur at approximately 1:15 p.m. during daylight savings time, that the prayer was "obligatory for all Muslims," and that the Friday morning Muslim study class at CNYPC was "not a Jumu'ah worship service." Id. Imam Najeeullah stated that his schedule did not allow him to facilitate a Friday Al Jumu'ah prayer service at CNYPC, but that "[t]here should always be a qualified Imam available to facilitate this service if it is allowed." Id.
On May 1, 2009, John Culkin, the Director of the Bureau of Sex Offender Evaluation and Treatment, responded to an April 7, 2009, letter from Plaintiff. (Pl.'s Ex. D, Dkt. No. 33-2 at 15; Defs.' Ex. 8, Dkt. No. 37-4 at 42.) Mr. Culkin stated that "[p]er staff at Central New York Psychiatric Center, the facility offers Muslim prayer services at 9:30 am on Friday mornings. These services have not changed nor have you been denied the right to attend them as currently scheduled. The Imam has additionally informed [CNYPC] staff that formal services do not need to occur at noon as residents can participate individually and from any location at that time." Id.
On May 19, 2009, Mental Hygiene Legal Services wrote to Mr. Culkin, enclosing a copy
10 In response to interrogatories, Defendant Sawyer identified "the Imam" who had “informed” him on these matters as Imam Abdullah Muhammad. (Pl.'s Ex. G, Dkt. no. 33-2 at 19.) Imam Abdullah Mohammad is the Muslim Chaplain at Mohawk Correctional Facility. (Pl.'s Ex. B, Dkt. No. 33-2 at 8.)
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of a letter from Imam Najeeullah. (Pl.'s Ex. E, Dkt. No. 33-2 at 16.) Mental Hygiene Legal Services noted that Imam Najeeullah's letter stated "that the Jumu'ah worship service is 'obligatory for all Muslims,' just as 'Sunday worship service is for all Christians'" and that "the 'study classes' he does host on Thursdays and Fridays are 'not a Jumu'ah worship service.'" Id.
On October 23, 2009, Defendants Sawyer and Maxymillian responded to Plaintiff's interrogatories. (Dkt. No. 37-4 at 52-66.) In those responses, Defendants reiterated their answers to Plaintiff's grievances and stated that Imam Abdullah Muhammad had informed them that congregate prayer was not necessary for Al Jumu'ah. Id.
On January 13, 2010, Imam Abdullah Muhammad wrote to Deputy Attorney General Dean J. Higgins, counsel for Defendants in this action. (Pl.'s Ex. B, Dkt. No. 33-2 at 8.) He stated that he was writing to "clarify a gross misunderstanding" that Al Jumu'ah "can be performed individually." Id. He explained that "[a]ttendance at the congregational prayer is obligatory on all men . . . So, it is impossible for me to advise anyone that Jumu'ah prayer can be performed individually. What I did say, and it may be the source of the misunderstanding, is that the [five] daily prayers can be performed individually under circumstances such as those found in jails, prisons, and other institutions." Id.
At some point, officials at CNYPC came to understand that "Al Jumu'ah is a congregate prayer that can[]not be worshiped individually. " (Dziadyk Decl., Dkt. No. 37-6 ¶¶ 13.) Thereafter, the facility "commenced a search for a Muslim Imam to conduct the service." Id. ¶ 14. CNYPC officials asked Imam Najeeullah to preside at the service. Id. ¶ 15. Imam Najeeullah is employed part-time by both the New York Department of Correctional Services ("DOCS") at Marcy Correctional Facility and the Department of Mental Health at CNYPC.
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(Najeeullah Decl., Dkt. No. 37-5 ¶¶ 2-3.) Imam Najeeullah attempted to get permission from DOCS to conduct a service at CNYPC, but his request was denied because it would conflict with his schedule of services at Marcy. Id. ¶ 12.
Imam Najeeullah has worked with CNYPC officials "to identify an eligible Imam who would be able to conduct services at the Center," but no such individual has been found. (Dkt. No. 37-5 ¶ 13.) At one point, an individual was "identified . . . , but it was determined that he was not eligible" because of "issues in his background." Id. ¶ 14; Dkt. No. 37-6 ¶ 18. Defendants do not identify what these "issues" were or why they rendered the individual unsuitable. Defendants state that the search is ongoing. (Dkt. No. 37-5 ¶ 16; Dkt. No. 37-6 ¶ 19.)
On February 4, 2010, Stephen C. Clark, the principal attorney for the Mental Hygiene Legal Service for the Fourth Judicial Department, wrote to Plaintiff. (Pl.'s Ex. C, Dkt. No. 33-2 at 9-10.) Mr. Clark reported that he had met with members of the CNYPC staff, including Defendants Sawyer and Maxymillian, to discuss the lack of Al Jumu'ah services at CNYPC. Id. at 9. Defendant Sawyer stated that CNYPC was "actively attempting" to find someone and "insured that he would continue to work to bring this matter to a quick resolution." Id. Mr. Clark inquired whether Plaintiff would be interested in being trained to lead Al Jumu'ah services because Defendant Sawyer "seemed to indicate that the hospital would be willing to entertain getting appropriate training for someone currently there [] to run such services." Id.
b. Analysis Under the legitimate penological interest test, a prisoner “must show at the threshold that
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the disputed conduct substantially burdens11 his sincerely held religious beliefs.” Salahuddin,
467 F.3d at 274-75 (citing Ford, 352 F.3d at 591). Defendants do not dispute that Plaintiff's
religious beliefs are sincerely held or that the lack of Al Jumu'ah services burdened those beliefs.
Indeed, for the purposes of the pending motions, Defendants concede that Al Jumu'ah "is a
central religious service of the Muslim faith" and that "[t]here is no alternative to the Al Jumu'ah
worship." (Dkt. No. 37-8 at 5.) Therefore, I find that Plaintiff holds a sincere religious belief
that has been substantially burdened. The issue, then, is whether Defendants have established as
a matter of law that this burden was caused by a legitimate or compelling governmental interest.
Under the deferential legitimate penological interest test, once a plaintiff establishes that
his or her sincerely held religious belief has been substantially burdened,“[t]he defendants then
bear the relatively limited burden of identifying the legitimate penological interests that justify
the impinging conduct; the burden remains with the prisoner to show that these articulated
concerns were irrational.” Salahuddin, 467 F.3d at 275 (quoting Ford, 352 F.3d at 595)
(punctuation omitted). Although the defendants’ burden is “relatively limited,” the legitimate
penological interest advanced must have been the actual reason for the defendants’ actions.
11 Although the Second Circuit has applied the “substantial burden” test in its most recent prison free exercise cases, it has done so while explicitly refusing to adopt or endorse the test. “The Ford court noted that the Circuits apparently are split over whether prisoners must show a substantial burden on their religious exercise in order to maintain free exercise claims. Nevertheless, the Ford court held that since the plaintiff had not challenged the application of the substantial burden requirement, the court would proceed as if the requirement applied. Likewise, the Salahuddin court noted that ‘[r]esolution of this appeal does not require us to address Salahuddin's argument that a prisoner's First Amendment free-exercise claim is not governed by the 'substantial burden' threshold requirement,’ because defendants ‘never proceed to argue that we should find any particular burdened religious practice to be peripheral or tangential to [plaintiff's] religion.’ The court then proceeded as if the substantial burden requirement applied.” Pugh v. Goord, 571 F. Supp. 2d 477, 497 n.10 (S.D.N.Y. 2008)(citations and some punctuation omitted).
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“Post hoc justifications with no record support will not suffice.” Salahuddin, 467 F.3d at 276-77. Here, Defendants rely on a post hoc justification. Defendants state that they are not opposed to permitting Plaintiff's participation in the congregate Al Jumu'ah; however . . . there is currently no Imam available to conduct the service . . . [T]he Imam and the CNYPC staff are addressing this issue and have instituted a search for a person to conduct the service. Once an Imam is identified, the service will be instituted and Plaintiff will be permitted to attend.
(Dkt. No. 37-8 at 5.) This was not the reason that Defendants initially gave for not offering the Al Jumu'ah service. Rather, Defendants initially responded to Plaintiff's complaints by stating that they believed that the Friday morning session offered by Imam Najeeullah was sufficient and that no congregate Al Jumu'ah service was required.12 Defendants admit in their motion papers that this belief was "mistaken." (Dkt. No. 37-6 ¶ 12.) Defendants persisted in this “mistaken belief” for at least seventeen months, from the time that they ceased offering Al Jumu'ah services in approximately August 2008 until January 2010, when Imam Muhammad wrote to defense counsel to correct Defendants’ “gross misunderstanding.” (Dkt. No. 37-4 at 40; Dkt. No. 33-2 at 8.) Indeed, individuals associated with CNYPC continued to assert their belief that Al Jumu'ah was not required for several months after Plaintiff filed this action. (Dkt. No. 37-4 at 42.) Thus, the initial denial of Al Jumu'ah was due not to the lack of an Imam as Defendants now contend, but rather to a misunderstanding of the religious significance of Al Jumu'ah. It was not until after Imam Muhammad corrected this misunderstanding that Defendants began to search for an Imam
12 I note that such a justification would not, if asserted in the pending motion, be legally sufficient to entitle Defendants to summary judgment. Ford, 352 F.3d at 597-98. Even if this justification were legally sufficient, it would not be factually supported here. As Imam Muhammad indicated in his letter to defense counsel, he never intended for Defendants to believe that congregate Al Jumu'ah prayer is merely optional for Muslims.
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who could preside at Al Jumu'ah. Even if Defendants’ justification were not post hoc, it would be insufficient to support a
finding, as a matter of law, that the denial of Al Jumu'ah was motivated by a legitimate penological interest. As another judge in this District has observed, the legitimate penological interest inquiry "is particularly fact-lad[]en and often ill-suited for resolution on [a] motion for summary judgment . . ." Jackson v. Boucaud, No. 9:08-CV-1373 (TJM/DEP), 2009 U.S. Dist. LEXIS 125893, at *26, 2009 WL 6066799, at *7 (N.D.N.Y. Dec. 31, 2009).13 Here, Defendants simply have not provided the Court with enough information to analyze the issue. Defendants do not provide any details at all about why the search for an Imam has been unsuccessful, other than to state that one potential Imam was not eligible because of unspecified “issues in his background.” (Dkt. No. 37-6 ¶ 18.)
Defendants’ justification, and the lack of detail they provide about it, is similar to that asserted in a recent case from the District of Connecticut. Vega v. Lantz, No. 304CV1215DFM, 2009 U.S. Dist. LEXIS 88550, 2009 WL 3157586 (D. Con. Sept. 25, 2009).14 In Vega, a state prisoner claimed that his free exercise and RLUIPA rights were violated because the facility routinely cancelled Al Jumu'ah. Vega, 2009 WL 315786, at *1. The defendants conceded that Al Jumu'ah had been frequently cancelled over a four-year period, but argued that cancellation was necessary “when there is no chaplain available or in case of a security lockdown.” Id. at
13 The Court will provide Plaintiff with a copy of this unpublished decision in accordance with the Second Circuit’s decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009).
14 The Court will provide Plaintiff with a copy of this unpublished decision in accordance with the Second Circuit’s decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009).
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*11. The court denied the defendants’ motion for summary judgment because the defendants “provide[d] no explanation for the frequent cancellation of Jumah, or of the insufficient and unequal staffing that allegedly underlies it.” Id. Thus, the court found, the defendants had failed “to carry their burden of showing that the frequent cancellation of Jumah is either rationally related to a legitimate penological interest . . . or in furtherance of a compelling governmental interest.” Id.
Therefore, I recommend that the Court deny Defendants' motion for summary judgment dismissing Plaintiff's claim regarding the Al Jumu'ah service.
3. Bowls and Utensils Plaintiff alleges that Defendants violated his religious rights by "forcing Plaintiff to eat food from bowls contaminated with pork from prior meals eat[en] by non-Muslims." (Dkt. No. 1 at 4 ¶ 4(b).) Defendants move for summary judgment dismissing this claim, arguing that Plaintiff's religious beliefs have not been burdened. (Dkt. No. 37-8 at 6.) Defendants are correct. Imam Najeeullah declares that there is "no prohibition" on eating from a bowl or using a utensil previously used by a non-Muslim to eat pork "so long as they have been washed and sanitized . . ." (Dkt. No. 37-5 ¶¶ 18-19.) Valerie Fasteson, the Director of Nutritional Services for CNYPC, declares that plates, bowls, and utensils are "thoroughly washed and sanitized" before they are reused. (Dkt. No. 37-7 ¶ 6.) CNYPC residents can also request disposable plates and tableware that would be used only once and then discarded. Id. ¶ 7. Plaintiff has not made such a request. Id. In opposition to Defendants' motion for summary judgment, Plaintiff admits that "all bowls and utensils are washed and sanitized after use and before re-use and such washing is
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consistent with the tenets of the Muslim faith." (Dkt. No. 37-1 ¶ 20; Dkt. No. 40 ¶ 9.) Therefore, Plaintiff has not raised a triable issue of fact that his sincerely held religious
beliefs have been burdened and I recommend that the Court dismiss Plaintiff's claim regarding the contamination of bowls and utensils.
4. Food Issues Plaintiff alleges that his religion requires him to eat Halal foods and that Defendants violated his constitutional rights by forcing him "to eat meals issued for Christian and Catholic religions, e.g.: Friday Muslims must eat fish as the church of Catholics require." (Dkt. No. 1 at 5 ¶ 5.) It is not entirely clear whether Plaintiff objects to the lack of a Halal menu or to the fact that fish is served on Fridays. Defendants argue that serving fish on Fridays does not burden Plaintiff's religious beliefs and that they are not constitutionally required to provide an entirely Halal menu. (Dkt. No. 37-8 at 5-6.) a. Fish on Friday Imam Najeeullah declares that "[f]ish is an acceptable food for a Muslim diet and the service of fish would violate no tenet of our faith." (Dkt. No. 37-5 ¶ 21.) Plaintiff admits in his reply papers that fish is a permissible food under Islamic law. (Dkt. No. 40 ¶ 8.) Therefore, Plaintiff has not raised a triable issue of fact that his sincerely held religious beliefs were burdened by the fact that fish was served on Fridays at CNYPC and I recommend that the Court grant Defendants' motion for summary judgment with respect to the claim that CNYPC's practice of serving fish on Fridays violated Plaintiff's rights under the Free Exercise Clause or RLUIPA.15
15 Plaintiff may also be asserting an Establishment Clause claim regarding the service of fish on Fridays. Any such claim would be subject to dismissal for failure to state a claim. See Travillion v. Leon, 248 Fed. App'x 353, 355-56 (3d Cir. 2007) (affirming trial court's
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b. Halal Foods Plaintiff may also be claiming that Defendants violated his free exercise and RLUIPA rights because CNYPC does not offer a Halal menu. (Dkt. No. 1 at 5 ¶ 5.) Defendants move for summary judgment of this claim. (Dkt. No. 37-8 at 5-6.) The Second Circuit has "clearly established that a prisoner has a right to a diet consistent with his or her religious scruples." Ford, 352 F.3d at 597. However, "[a]ll that is required for a prison diet not to burden an inmate's free exercise of religion is the provision of a diet sufficient to sustain the prisoner's good health without violating [his religion's] dietary laws." Muhammad v. Warithu-Deen Umar, 98 F. Supp. 2d 337, 344 (W.D.N.Y. 2000) (citing Abdul-Malik v. Goord, No. 07 Civ. 4584, 1997 U.S. Dist. LEXIS 2047, 1997 WL 83402, at *6 (S.D.N.Y. Feb. 27, 1997)).16 Defendants assert that meals at CNYPC "do not violate any tenets of the Muslim faith." (Dkt. No. 37-1 ¶ 19.) For this proposition, Defendants cite the declarations of Valerie Fasteson and Imam Najeeullah. Id. Neither of the declarations cited by Defendants show that CNYPC meals do not violate Muslim dietary laws. Ms. Fasteson declares that "[a]lthough the dietary service does not serve a strictly Halal diet, we do serve meals that are not violative of Muslim tenets. We do serve an alternative diet that, upon information and belief and based on the declaration of Imam Najeeullah . . . , does accommodate the Muslim faith. This would include
12(b)(6) dismissal of claim that jail's service of vegetarian menu during Lent violated Protestant inmate's rights under the Establishment Clause).
16 The Court will provide Plaintiff with a copy of this unpublished decision in accordance with the Second Circuit’s decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009).
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an option that would insure a pork free diet." (Dkt. No. 37-7 ¶ 5.) Imam Najeeullah's declaration does not state that CNYPC's alternative diet accommodates the Muslim faith. Rather, Imam Najeeullah merely states that fish in an acceptable food for a Muslim diet and that "the Halal diet is important to a Muslim's faith . . . I will work with CNYPC staff to try and find ways to make a Halal diet possible." (Dkt. No. 37-5 ¶¶ 21-22.) These vague declarations stand in stark contrast to the evidence presented in a case cited by Defendants, Majid v. Fischer, No. 07 Civ. 4584, 2009 U.S. Dist. LEXIS 71616 (S.D.N.Y. Jul. 31, 2009).17 There, the defendants provided the court with a report from an Imam explicitly stating that the pork-free menu offered by DOCS was "adequate and sufficient for Muslims under Islamic law and does not require Muslims to choose between violating their religious practice or starving." Majid, Dkt. No. 37-10 at 8.
Moreover, Defendants have not provided the Court with enough evidence to establish as a matter of law that CNYPC provides a pork-free diet that is sufficient to sustain Plaintiff's good health. Indeed, the only reference in the record to the nutritional quality of the alternative menu is one sentence in the Inpatient Operations Manual stating that CNYPC's pork-free diet "meets 100 percent of the RDA." (Defs.' Ex. 3, Dkt. No. 37-4 at 24.) Defendants do not note this fact in their memorandum of law or ask the Court to draw any conclusions from it.
Additionally, Defendants have not provided any evidence regarding the legitimate penological or compelling interests supporting the menu at CNYPC. Although Defendants cite cases upholding DOCS' menu in the face of First Amendment and RLUIPA challenges by Muslim inmates, Defendants have not provided the Court with any evidence that CNYPC's menu
17 Defendants served a copy of this unpublished decision on Plaintiff with their summary judgment papers. (Dkt. No. 37-10.)
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is similar to DOCS' or that it is driven by similar penological interests. In contrast to the dearth of detail here, the defendants in Majid provided the court with a declaration describing in detail the number of inmates who needed to be fed in the DOCS system, the nutritional and religious factors that DOCS considered in formulating menus, the cost of providing a pork-free (but nonHalal) menu as compared with the regular menu, and the problems associated with obtaining Halal meats. Thus, I find that Defendants have not established, as a matter of law, that CNYPC provided Plaintiff with a diet sufficient to maintain his good health without violating Muslim dietary laws. Therefore, I recommend that the Court deny Defendants' motion for summary judgment dismissing this claim.
5. Classes on Fridays and Denial of Sacred Foods on Holidays Defendant's motion for summary judgment does not address Plaintiff's claims that (1) being required to attend classes on Fridays violates his religious rights; or (2) Defendants violated Plaintiff's religious rights by denying him sacred foods on holidays. Therefore, I find that the claims should survive Defendants' motion for summary judgment. B. DUE PROCESS CLAIM Plaintiff claims that Defendants violated his Fifth and Fourteenth Amendment rights to due process. (Dkt. No. 1 at 7.) Regarding the due process issue, Plaintiff's complaint states only that "Plaintiff has not d[one] anything to lose his right[s] afforded by the" First Amendment. Id. Defendants argue that the complaint fails to state a due process claim. (Dkt. No. 37-8 at 6-7.) Defendants are correct. Plaintiff's due process claim simply duplicates his free exercise and RLUIPA claims. See Velez v. Levy, 401 F.3d 75, 94 (2d Cir.2005) (“[W]here a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited
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conduct in a § 1983 suit cannot make reference to the broad notion of substantive due process.”). Therefore, I recommend that the Court grant Defendants' motion for summary judgment dismissing Plaintiff's due process claim.
C. EIGHTH AMENDMENT CLAIM Plaintiff claims that Defendants violated his Eighth Amendment rights. (Dkt. No. 1 at 8.) Defendants argue that the complaint fails to state an Eighth Amendment claim. (Dkt. No. 37-8 at 6-7.) Defendants are correct. The Eighth Amendment to the United States Constitution prohibits “cruel and unusual” punishments. The word “punishment” refers not only to deprivations imposed as a sanction for criminal wrongdoing, but also to deprivations suffered during imprisonment. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). Punishment is “cruel and unusual” if it involves the unnecessary and wanton infliction of pain or if it is incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Estelle, 429 U.S. at 102. To satisfy the objective component of an Eighth Amendment claim, a prisoner must show that the defendant’s “act or omission ... result[ed] in the denial of the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834. Therefore, “extreme deprivations are required to make out a conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). To satisfy the subjective component, the defendant’s behavior must be “wanton.” Whitley v. Albers, 475 U.S. 312, 320 (1986). Where a prisoner claims that a defendant provided inadequate conditions of confinement, he must show that the defendant acted with “deliberate indifference.” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). A prison official demonstrates deliberate indifference to inhumane conditions of confinement where he “knows of and disregards an excessive risk to
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inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
Here, Plaintiff has not raised a triable issue of fact that Defendants deprived him of the minimal civilized measure of life's necessities or that they knew of and disregarded an excessive risk to Plaintiff's health or safety. Therefore, I recommend that the Court grant Defendants' motion for summary judgment of Plaintiff's Eighth Amendment claim.
D. PERSONAL INVOLVEMENT BY DEFENDANT HOGAN Defendants argue that any claims against Defendant Hogan should be dismissed because Plaintiff has failed to allege that Defendant Hogan was personally involved in any constitutional violation. (Dkt. No. 37-8 at 7-8.) Defendants are correct. Under Second Circuit precedent, “‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a Bivens cause of action against an individual, a plaintiff must show some tangible connection between the unlawful conduct and the defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). If the defendant is a supervisory official, a mere “linkage” to the unlawful conduct through “the prison chain of command” (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). In other words, supervisory officials may not be held liable merely because they held
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a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, supervisory personnel may be considered “personally involved” if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring.18 Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Here, the complaint does not mention Defendant Hogan at all other than in the caption and the list of parties. (Dkt. No. 1.) In response to interrogatories from Plaintiff, Defendant Sawyer stated that he could not recall Defendant Hogan making any inquiry about Plaintiff's March 18 complaint. (Dkt. No. 33-2 at 19.) Thus, the complaint fails to plausibly suggest, and the evidence fails to raise a triable issue, that Defendant Hogan was personally involved in any alleged constitutional violation. Therefore, I recommend that the Court dismiss Plaintiff's claims against Defendant Hogan. IV. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff's motion for summary judgment (Dkt. No. 33) focuses entirely on the lack of Al Jumu'ah services at CNYPC. I have discussed all of the evidence submitted by Plaintiff
18 In Iqbal, 129 S.Ct. at 1949, the Supreme Court ruled that where the underlying constitutional claim is a claim of intentional discrimination, a supervisory official's liability must be judged by the official's own purpose rather than the official's knowledge of subordinates' actions or policies. The Second Circuit has not yet issued a decision discussing Iqbal's effect on the Colon categories. Several district courts in the Second Circuit have determined that Iqbal nullified some of the Colon categories. See Sash v. United States, 674 F. Supp. 2d 531, 543-44 (S.D.N.Y. 2009) (collecting cases). I will assume for the purposes of this motion that the Colon categories remain good law.
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regarding this issue above, in Section III(A)(2). In analyzing Plaintiff's motion for summary judgment, I must resolve all ambiguities and draw all reasonable inferences in Defendants' favor. Major League Baseball Props., Inc., 542 F.3d at 309. Although, as discussed above, Defendants have not provided the Court with sufficient evidence to support summary judgment in their favor on the Al Jumu'ah issue, they have provided sufficient evidence to raise a triable issue of fact. A reasonable juror could find that Defendants had a legitimate penological or a compelling interest for the decision not to hold Al Jumu'ah services at the proper time. Therefore, I recommend that the Court deny Plaintiff's motion for summary judgment.
ACCORDINGLY, it is RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 37) be GRANTED IN PART AND DENIED IN PART. I recommend that the Court grant Defendants' motion and dismiss the following claims: (1) the free exercise and RLUIPA claims regarding the use of bowls and utensils; (2) the free exercise and RLUIPA claims regarding CNYPC's practice of serving fish on Fridays; (3) any Establishment Clause claim regarding CNYPC's practice of serving fish on Fridays; (4) the due process claim; (5) the Eighth Amendment claim; and (6) all claims against Defendant Hogan; and it is further RECOMMENDED that Plaintiff's motion for summary judgment (Dkt. No. 33) be DENIED; and it is further RECOMMENDED that the following claims survive the pending motions: (1) the free exercise and RLUIPA claims regarding the lack of Al Jumu'ah services at CNYPC; (2) the free exercise and RLUIPA claims regarding the lack of a Halal menu at CNYPC; (3) the claim regarding CNYPC's requirement that Plaintiff attend classes on Fridays; and (4) the claim that
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Defendants denied Plaintiff sacred foods on holidays. The parties should be prepared, in further proceedings, to fully brief whether the legitimate Penological interest or the compelling government interest test should be applied to this case; and it is further
ORDERED that the Clerk provide Plaintiff with copies of Carney v. Hogan, No. 9:08CV-1251 (DNH/ATB), 2010 U.S. Dist. LEXIS 59439, 2010 WL 2519121 (N.D.N.Y. Mar. 30, 2010); Lombardo v. Holanchock, No. 07 Civ. 8674, 2008 U.S. Dist. LEXIS 48753, 2008 WL 2543573 (S.D.N.Y. June 25, 2008); Abdul-Matiyn v. Pataki, No. 9:06-CV-1503, 2008 U.S. Dist. LEXIS 118430, 2008 WL 974409 (N.D.N.Y. Apr. 8, 2008); Jackson v. Boucaud, No. 9:08-CV1373 (TJM/DEP), 2009 U.S. Dist. LEXIS 125893, 2009 WL 6066799 (N.D.N.Y. Dec. 31, 2009); Vega v. Lantz, No. 304CV1215DFM, 2009 U.S. Dist. LEXIS 88550, 2009 WL 3157586 (D. Con. Sept. 25, 2009); and Abdul-Malik v. Goord, No. 07 Civ. 4584, 1997 U.S. Dist. LEXIS 2047, 1997 WL 83402 (S.D.N.Y. Feb. 27, 1997) in accordance with the Second Circuit’s decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a).
Dated: December 22, 2010 Syracuse, New York
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 Case 9:09-cv-00214-GHL Document 59 Filed 02/08/12 Page 1 of 5

UNITED STATES DISTRICT COURT NORTIIERN DISTRICT OF NEW YORK
EDWARD KALWASINSKl,
Plainriff,
-against·
TERRI MAXYMILLIAN, Director of Sex Offender Treatment Program for New York State; MICHAEL HOGAN, New York State Office of Mentnl Health Commissioner & DONALD SAWYER, Executive Director of CNYPC,
Defendants.

STIPULATION AND ORDER OF
DISCONTINUANCE PURSUANT TO RULE
4l(A)
09-CV-0214
DNH/OHL

IT IS HEREBY STIPULATED AND AGREED by and between the undersigned, the attorneys for plaintiff and Defendants Terri Maxymillian, Michael Hogan, and Donald Sawyer, parties to lhe above entitled-action, tb.at, whereas no party hereto is an infant or incompetent person for whom a committee has been appointed, and no person not a party has an interest in the subject matter of the action. lhe above-entitled action be and the swne hereby is settled on the particular circumstances ofthis case, on the following tenus and conditions, which it is agreed are ofand shall have no legal precedentiaJ value in any other case either between the parties to this case or any other parties:
I. Plaintiffdiscontinues this action with prejudice and without damages, costs. interest or attorneys fees, and discharges and releases Defendanls Terri Maxymillian, Michael Hogan, and Donald Sawyer and the State ofNew York, including its agencies, subdivisions, employees, private contractors or assignees, of any and all claims, demands, or causes ofactions, known or unknown,

Case 9:09-cv-00214-GHL Document 59 Filed 02/08/12 Page 2 of 5
now existing or hereafter arising, whelher presently asserted or not, which re)ate in any way to lhe subject matter of this action, and further agrees to discontinue and/or not to commence or to pursue in any court, arbitration or administrative proceeding, any litigation or claims against the defendants and others released hereby pertaining to the underlying facts, circmnstances or incidents that gave rise to the aforementioned action, or any results of the aforementioned facts, circumstances or incidents.
2. This action is hereby discontinued with prejudice pwsuant to Rule 41(a) of the Federal Rules of Civil Procedure.
J. The parties agree that no provision of this settlement shall be interpreted to be an acknowledgment ofthe vaJidily ofany ofthe allegalio~ or claims that have been made in the action.
4. This settlement does not constitute a detennination of, or admission by any plllty to any underlyingallegations, facts or merits oftheir respective positions. The settlement ofthis action is limited to the circumstances in this case alone and shall not be given effect beyond the specific provisions stipulated lO. This settlement does not form and shall not be claimed as any precedent for, or an agreement by the parties to any generally applicable policy or procedure in the future.
5. Following the execution of this slipulation, and its being ordered by the Court. Defendants Terri Maxymillian, Michael Hogan, and Donald Sawyer shall pay to piaintiffthc sum of Fifteen Thousand dollars ($15,000.00) in fuU settlement of any and all claims. Payment by Defendants Tmi MaxymiUian, Michael Hogan, and Donald Sawyer of this amount shall be made payable to plaintiffin the amount ofFifteen Thousand dollars ($15,000.00). This amount includes all sums to which plaintiffis entitled, including bul not limited to damages, costs, and attorney"s fees. Plaintiff's check will be mailed to his attomey•s office at Morningside Legal Services, Inc., 435 W.
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Case 9:09-cv-00214-GHL Document 59 Filed 02/08/12 Page 3 of 5
116111 St., New York, New York 10027. Payment by Defendants Terri Maxymillian, Michael Hogan, and Donald Sawyer of the amount specified in paragraph 6 is conditioned on the approval of all appropriate state officials in accordance with the provisions for indemnification under section 17 of the New York Public Officers Law.
6. Payment of the amounts referenced in paragraph 5 will be made within one hundred and twenty (120) days after the approval ofthis stipulation by the Court and receipt by Defendants Terri Maxymillian, Michael Hogan, and Donald Sawyer counsel of a copy of the so-ordered stipulation.
7. Jn the event that the tenns of paragraph 5 are satisfied, but payment is not made within the 120 day period set forth in parngmph 6, interest shall begin to accrue on the outstanding principal balance at the statutory rate on the one hundred and twenty-fust day after court approval.
8. Defendants have a Halal menu in place and agree that they will continue to offer Halal foods. Muslim residents may request and will be allowed to follow a Halal diet.
9. The panies agree that CNYPC wiH retain the services of an Imam for the purposes of leading the AI Jumu'ah services on Fridays. An Imam has been visiting the facility to provide classes to Muslim residents. The following steps will be undertaken by CNYPC with respect to entering into a contract with an Imam to lead and conduct the AI Jumu'ah service on Fridays; (a)
an advertisement will be posted in the Contract Reporter for 3 weeks. TJ:le preparation ofthe
adver1isement will begin upon the filing of the Stipulation. It is expected that it will take 6 weeks from the filing of the stipulation to have the advertisement published; (b) Defendants will, upon notification of filing of the stipulation, request inpul from the locallmam and from the Seminary in Connecticut in identifying possible qualified individuals to serve as Imam for the Al Jwnu'ah
3

Case 9:09-cv-00214-GHL Document 59 Filed 02/08/12 Page 4 of 5

services; (c) within 3 weeks from the submission of the advertisement to the Contract Reporter a bid process will be developed with involvement ofthe Office OfMental Health consolidated business office for the purpose ofsecuring rhe services of an Imam as described above; (d) _approval of the contract wm be obtained through normal procedures required by the Office of the New York State Comptroller. Although every effort will be made to expedite lhe process, the final approval of the conrract could take between 4 and 6 months; (e) CNYPC will continue, in
an the future, to provide Imam to lead AI Jwnu'ah services on Fridays.
10. The foregoing constitutes the entire agreement of the parties. Dated: New York, New York
February-1,'2012

Brett Dignam

Columbia University Law School

Morningside Heights Legal Services, Inc.

435 W. I 16th St.

New Yo~ New York 10027

Attorney for Plaintiff Edward Kalwasinsk.i

~By: B· rett D- ig~

--=

Bar.KOll No. 517314

TeJephonc: (212) 854-6994

4

Case 9:09-cv-00214-GHL Document 59 Filed 02/08/12 Page 5 of 5

Dated: Albany, New York February~, 20 12
Dated: Syracuse, New York February"8. 2012

ERIC T. SCHNEJDER..~N Attorney General ofthe State ofNew York Attorney fnr Oefendants Terri Maxymillian, Michael
Hogan and Donald Sawyer
The Capitol
By:~~~~ Albany, New York 12224-0341
Dean J. lliggins
Assistant Attorney General, of Counsel Bar Roll No. 505663 Telephone: (518) 473-804 7

HON. GEORGE H. LOWE UNITED STATES DISTRICT MAGISTRATE JUDGE

5