· .~

UNITED STATES DISTRICT COURT DISTRICT OF VERMONT

U. S. DISTRICT COURl
DISTRICT OF "~RiVlQNT
f.h I FILED
BY ID'I'S
DEPUTY CLERK

)

Gordon Bock,

)

Plaintiff

)

v.

) CIVIL RIGHTS

Steven Gold,

) COMPLAINT

Janice Ryan,

) PURSUANT TO

Susan Blair,

) 42 U.S.C. 1983 AND THE

David Turner and

) RELIGIOUS LAND

Stuart Gladding,

.,,,}.,,',,.... USE·~AND

all employed by the ) INSTITUTIONALIZED

Vermont Department ) PERSONS ACT

of Corrections,

) (R.L.U.I.P.A.),

and each acting in

) 42 U.S.C. 2000bb et seq.

official and individual .)

capacity,

)

Civil Case No. I ~ 05- C-V.... ISI

Defendants

)

Plain~iff in the above-captioned action alleges as follows:

JURISDICTION

1. This is a civil action seeking relief and damages te·oefend and

protect the rights guaranteed by 'the Constitution of the' United States.

This action is brought pursuant to 42 U.S.C. 1983 and42 U.S.C.

2000bb et seq.. The Court has jurisdiction over this action pursuant

to 28 U.S.C. 1331, 28 U.S.C. 1343(3), 28 U.S.C. 1343(4) and 28

U.S.C. 2 2 0 1 . '

,

PARTIES:

2. Plaintiff Gordon Bock, Post:Office Box No. 484, Montpelier, VT 05601-0484

3. Defendant a) Steven Gold, Commissioner, Department of Corrections (hereinafter "D.O.C."), State of Vermont, 103 South Main Street, Waterbury VT 05671-1001

, .
bock v. 20ld et alia. sec. 1983 and rluipa. pa2e two of four
Defendant b) Janice Ryan, Deputy Commissioner, D.O.C., 103 South Main Street, Waterbury, VT 05671-1001
Defendant c) Susan Blair, D.O.C. Superintendent, Northwest State Correctional Facility, Swanton, VT 05488
Defendant, d) David Turner, D.O.C. Casework Supervisor/Superintendent's Designee, Northwest State Correctional Facility, Swanton, VT 05488
Defendant e) Stuart Gladding, D.O.C. Superintendent, Northern State Correctional Facility, Newport, VT 05855
PLACE OF-PRESENT "CONFINEMENT
4. a. There is a prisoner grievance procedure in place at all three facilities where the Vermont D.O.C. placed Plaintiff in confinement, 2004-2005.
b. Plaintiff throughly presented all pertinent facts to theD.O.C. and thoroughly exhausted every avenue of D.O.C. administrative grievance procedures, all to no avail'inasmuch as Defendants continued to violate repeatedly Plaintiffs First Amendment right to practice his religion, which is Judaism.
c. In addition to exhausting every possible avenue in the D.O.C. grievance procedure~ Plaintiff wrote numerous times to the Commissioner, the Deputy Commissioner and the other coDefendants, all to no avail. '
d.Plaintiff presented to each and every one of the Defendants his concerns 'about the continued'violations of Plaintiffs First Amendment right to practice his religion, and none of the Defendants took affirmative action.
PREVIOUS LAWSUITS
5. Having thoroughly exhausted all,D.O.C. administrative grievance procedures over six months for a slew of anti-Semitic episodes
directed against him at the st. Albans facility, Plaintiff upon
learning of an ongoing scheme by three fellow inmates to enlist a fourth inmate to seize his yarmulke (Jewish skullcap), defecate in it and sneak it back into Plaintiffs cell did file a

. ,
bock v. Kold et alia. sec. 1983 and rluipa. paKe three of four
request for a hate-crime injunction* under Title 13 of the Vermont Statutes.
FACTS
6. Plaintiff alleges that the named Defendants did for the duration of his seven months of imprisonment from 2004 to 2005 repeatedly violate the D.O.C.'s own policies on religious practice in its institutions whilst depriving Plaintiff of the opportunity to practice the Jewish religion through minor requested accommodations, to wit: a) Steven Gold had ultimate '-autli:t5t'ity"tti"'apP1t)Ve-mihof requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order. b) Janice Ryan had authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order. c) Susan Blair had authority to ·approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose' not to so order. d) David Tumerhad authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and inste'act; chose not to so order. e) Stuart Gladding had authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order.
7.
CAUSES OF ACTION
NUMEROUS VIOLATIONS OF 42tJ.S.C. 1983 through repeated and flagrant failure to act in furtherance of Plaintiffs constitutionally guaranteed civil rights under Amendment I of the United States Constitution by ignoring Plaintiffs numerous requests for minor accommodations in furtherance ofhis goal to observe the Jewish religion in a meaningful manner without jeopardizing security or disrupting facility operations.
* (Cf., although.the specific incident is more ancillary than integralto the instant action, inasmuch as it
does not signify the D.O.C.'s obstinate blockage ofPlaintiffs'Pirst Amendment right to practice his religion, Bock v. Hofmann et alia. Washington County Superior Court, Docket No. 181-3-04 WnCv, J. Katz presiding.)

· .
bock v. I:old et alia. sec. 1983 and rluipa. last of four pal:es
NUMEROUS VIOLATIONS OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT (R.L.U.I.P.A.), 42 U.S.C. 2000bb et seq., by ignoring Plaintiffs numerous requests for minor accommodations in furtherance of his goal to observe the Jewish religion in a meaningful manner without jeopardizing security or disrupting facility operations.
8. Plaintiff demands a trial by jury.
PRAYER FOR RELIEF
WHEREFORE, PLAINTIFF PRAYS for this Court to grant the following relief: • Accept jurisdiction in this matter; • Allow Plaintiff to proceed "in forma pauperis," and to transmit to
Plaintiff the appropriate forms for same; • Allow Plaintiff leave to amend; • Issue injunctive relief barring D.O.C. from further denying or
limiting Plaintiffs exercise of his religion, Iudaism,as such denials or limits will likely continpe ~s a means of coercion and retribution whilst Plaintiff remains supervised by Barre CCSC, especially to punishPlilintiff for having brought suit; • Award Plaintiff both compensatory and punitive damages as the Jury may decide; • Schedule a preliminary hearing in this matter; • Order other such other relief as the Court deems just and proper.
I DECLARE under penalty of perjury that the foregoing is true and correct on this the 11 th day of May 2005 at Northfield, Vermont:
copy to: D.O.C. legal division, Waterbury, VT

 
 L~. S. D! ~t ~;'~ :~ ~ ~: T C:'~;.1 ~::
r Dj J -~. ;-: 1CT (j F '~t ~-: , : j j.); ~
~:'l ~ E:) UNITED STATES DISTRICT COURT

FOR THE

21~J7 rE~ 23

DISTRICT OF VERMONT

GORDON BOCK,

)

Plaintiff,

)

)

v.

)

)

STEVEN GOLD, JANICE RYAN,

)

SUSAN BLAIR, DAVID TURNER,

)

STUART GLADDING,

)

acting in official and individual capacity, )

Defendants.

)

File No. 1:05-CV-151

DEFENDANTS' MOTION FOR SUMMARY .JUDGMENT

NOW COME Defendants, Steven Gold, Janice Ryan, Susan Blair, David Turner

and Stuart Gladding, by and through General William H. Sorrell, pursuant to Fed. R. Civ.

P. 56, and respectfully move this Honorable Court for summary judgment because there

is no genuine issue of material fact and Defendants are entitled to judgment as a matter of

law. In support hereof, Defendants submit the following Memorandum of Law and

Statement of Undisputed, Material Facts.

MEMORANDUM OF LAW

I. Legal Standard.

Summary judgment should be granted if, viewing the facts in the lights most

favorable to the nonmoving party, there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Moller v. North Shore Univ. Hosp., 12

F.3d 13, 15 (2d Cir. 1993). A fact is material if it affects the outcome of the suit under

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

moving party bears the initial burden of demonstrating the absence of a genuine issue of

1

material fact. See Celotex, 477 U.S. at 323. The moving party may satisfy that burden by "showing - that is pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," then summary judgment is appropriate. Celotex, 477 U.S. at 323. Once the moving party has made a sufficient showing, "[t]he non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." Golden Pacific Bancom. v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004) (quoting D' Arnico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998». "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Even if the parties dispute material facts, summary judgment must be granted "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Golden Pacific Bancorp, 375 F.3d at 200 (2d Cir. 2004) (internal citations and quotation marks omitted). A party may not create a genuine issue of material fact by presenting contradictory or unsupported statements. See Securities & Exchange Comm'n v. Research Automation ~, 585 F.2d 31,33 (2d Cir. 1978). Nor may he rest on the "mere allegations or denials" contained in his pleadings. Goenaga, 51 F.3d at 18. See also Ying Jing Gan v.
2

New York, 996 F.2d 522,532 (2d Cir. 1993) (holding that party may not rely on conclusory statement). II. Background.
Plaintiff Gordon Bock ("Bock") brings this claim pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.c. § 2000cc, et seq. ("RLUIPA"). See Complaint. He alleges that during his incarceration at Northwest State Correctional Facility ("NWSCF") and Northern State Correctional Facility ("NSCF") between October 12, 2004 and May 10,2005, Defendants denied him "minor accommodations" that would have allowed him "to observe the Jewish religion in a meaningful manner without jeopardizing security or disrupting facility operations." See Complaint; Exhibit 1 at 9:4 - 10:18. Specifically, Bock claims that Defendants denied his requests that he be provided certain food and religious items so that he could practice his religion, particularly the Hanukkah, Purim, and Passover festivals. See Exhibit 9 at Exhibit A and Exhibit 3 at interrog. 11. Defendant Steven Gold was the Commissioner of the Vermont Department of Corrections during Bock's incarceration until February 2005. See Exhibit 4 at interrog. 2.1 He has not been employed by the Department since that time. See id. Defendant Janice Ryan was the Deputy Commissioner of the Department during Bock's incarceration. See Exhibit 5 at interrog. 1. Her tenure as Deputy Commissioner ended on September 15,2006 and she is no longer employed by the Department. See id. at interrog. 2. Defendant Stuart Gladding was the Corrections Services Manager and Superintendent of NSCF during Bock's incarceration. See Exhibit
1 Defendants' responses to Plaintiff's interrogatories and requests for production of documents (Exhibits 48) each contained two identical sets of documents identified as Exhibits 1 and 2. Defendants have only reproduced one set of those documents in Exhibit 4 to this motion so as not to add unnecessary paperwork to this motion.
3

6 at interrog. 2. Defendant Susan Blair was the Superintendent of NWSCF during Bock's incarceration. See Exhibit 7 at interrog. 2. Her tenure as Superintendent of NWSCF ended on December 31, 2006 and she is no longer employed by the Department. Defendant David Turner was a Corrections Living Unit Supervisor at NWSCF during Bock's incarcerations. See Exhibit 8 at interrog. 2. Bock was incarcerated at NWSCF during Hanukkah and Purim. See Exhibit 1 at 10:7-9 and Exhibit 9 at Exhibit B. He was incarcerated at NSCF during Passover. See Exhibit 1 at 10:14-15 and Exhibit 9 at Exhibit B. III. Defendants are entitled to summary judgment on Bock's § 1983 official
capacity claims for monetary damages because the Eleventh Amendment bars such claims. Defendants are entitled to summary judgment on Bock's § 1983 claim for monetary damages against them in their official capacities because such a suit is barred by sovereign immunity. Under the doctrine of sovereign immunity, the Eleventh Amendment of the United States Constitution bars suits by private citizens against a state or its agencies in federal court unless the state has waived its immunity or Congress has properly abrogated that immunity. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,98-99 (1984); Seminole Tribe v. Florida, 517 U.S. 44,45 (1996). The protection of the Eleventh Amendment also extends to suits for monetary damages against state officers sued in their official capacities. See Brandon v. Holt, 469 U.S. 464, 471 (1985). Moreover, the Supreme Court has held that, just as states and state agencies are not "persons" under § 1983, state officers acting in their official capacities are not "persons" within the meaning of the statute since they assume the identity of the government that employs them. See Hafer v. Melo, 502 U.S. 21, 27 (1991).
4

With respect to this case, it is clear that neither Vermont nor Congress has waived the sovereign immunity that protects Defendants from a damage action brought against them in their official capacities. There is no indication in 42 U.S.c. § 1983 that Congress intended to abrogate state sovereign immunity, and the Supreme Court has specifically held that Congress did not intend to override well-established immunities such as state sovereign immunity when it enacted § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 67 (1989). It is equally clear that Vermont has not waived its sovereign immunity under § 1983. See 12 V.S.A. § 5601(g) (Vermont Tort Claims Act reserves Eleventh Amendment immunity for all claims not explicitly waived). Therefore, Bock's § 1983 claim for monetary damages against Defendants in their official capacities should be dismissed. IV. Sovereign immunity precludes Bock from recovering monetary damages on
his RLUIPA claims against Defendants in their official capacities. Defendants are also entitled to summary judgment on Bock's RLUIPA claim for monetary damages against them in their official capacities because such a suit is barred by sovereign immunity. As discussed in Section III, supra, neither Vermont nor Congress has waived the sovereign immunity that protects Defendants from a damage action brought against them in their official capacities. Although it does not appear that the Second Circuit has addressed the issue of whether the Eleventh Amendment bars a RLUIPA claim for monetary damages against a state officer sued in his official capacity, numerous courts that have addressed the issue have concluded that the Eleventh Amendment bars such an action. See Orafan v. Goord, 2003 WL 21972735, at *6 (N.D.N.Y. Aug. 11,2003) (Magistrate's Report and Recommendation) (noting that court previously dismissed Plaintiffs' RLUIPA claim for monetary damages against a state
5

officers sued in official capacities because such claim is barred by Eleventh Amendment); Rowe v. Davis, 373 F.Supp.2d 822,825 (N.D.lnd. 2005) (dismissing RLUIPA claim against Indiana Department of Corrections pursuant to Eleventh Amendment); Daker v. Ferrero, 2006 WL 346440, at *8, n.5 (N.D.Ga. Feb. 13, 2006) (noting that Eleventh Amendment bars claims for damages against defendants in their official capacities under RLUIPA). It is clear that Vermont has not waived its sovereign immunity under § 1983. See 12 V.S.A. § 5601(g) (Vermont Tort Claims Act reserves Eleventh Amendment immunity for all claims not explicitly waived).
Moreover, Congress did not, in its exercise of its spending power, condition its grant of funds to the states on their consent to waive immunity from suit under RLUIPA. The "mere receipt of federal funds [does not] establish that a State has consented to suit in federal court." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246-47 (1985). Rather, Congress must demonstrate a clear intent to require a state to waive its immunity in exchange for its receipt of federal funds and it must express that intent "unambiguously" Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 (1981), using "unmistakably clear language", MCI Telecommunications Corp. v. lllinois Commerce Comm'n, 183 F.3d 558,563 (7th Cir. 1999). The Supreme Court has instructed federal courts to "find waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonably construction." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 678 (1999) (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)). See also Lane v. Pena, 518 U.S. 187, 192 (1996) (the general rule is that a sovereign immunity waiver "will be strictly construed ... in favor of the sovereign").
6

RLUIPA contains no such explicit language. Although RLUIPA applies where a "program or activity" receives federal funds, 42 U.S.c. § 2000cc-l(b)(l), and additionally creates a cause of action against state and local governments and their officials for "appropriate relief," 42 U.S.C. § 2000cc-2(a), nothing in RLUIPA explicitly ties the two provisions together or explicitly declares that states cannot assert sovereign immunity. Therefore, Bock's RLUIPA claim for monetary damages against Defendants in their official capacities is barred by the Eleventh Amendment and should be dismissed.
v. Bock's claim for injunctive relief is moot because he has been released from
the correctional facilities where the Defendants from whom he seeks injunctive relief worked and he has not demonstrated the threat of irreparable harm or the likelihood of success on the merits of his claim. Bock requests injunctive relief "barring D.O.C. from further denying or limiting Plaintiff's exercise of his religion... " See Complaint. He has not named the Department as a party to this action. See id. Thus, he is not entitled to the requested relief. However, he has sued each Defendant in his or her official capacity as Department employees. Thus, construed liberally, he asserts claims for injunctive relief against each Defendant in his or her official capacity. The Second Circuit has held that an inmate's request for injunctive relief against correctional staff or conditions of confinement at a particular correctional institution becomes moot when the inmate is discharged or transferred to a different correctional institution. See Mawhinney v. Henderson, 542 F.2d 1,2 (2d Cir. 1976). See also Salahuddin v. Goord, 467 F.3d 263,273 (2d Cir. 2006); Young v. Coughlin, 866 F2d 567,568 n. 1 (2d Cir. 1989); Martin-Trigona v. Shiff, 702 F.2d 380,386 (2d Cir. 1983). Other courts concur with this result. See,~, McAlpine v. Thompson, 187 F.3d 1213, 1215 (lOth Cir. 1999) (noting that an inmate's claim for prospective injunctive relief
7

<.
regarding conditions of confinement is rendered moot upon his release from confinement).
Defendant Steven Gold is no longer Commissioner of the Department, nor is he employed by the Department in a different position. See Exhibit 4 at interrog. 2. His tenure with the Department ended in February 2005. See id. Accordingly, he cannot provide the relief requested. Therefore, Bock's request for injunctive relief against Defendant Gold is moot.
Similarly, Defendant Janice Ryan is no longer Deputy Commissioner of the Department and is not employed by the Department in a different capacity. See Exhibit 5 at interrog. 2. Her tenure with the Department ended on September 15, 2006. See id. Accordingly, she cannot provide the relief requested. Therefore, Bock's request for injunctive relief against Defendant Ryan is moot.
Defendant Susan Blair is no longer the Superintendent of NWSCF and is not employed by the Department in a different capacity. Her tenure with the Department ended on December 31,2006. Bock was incarcerated at NWSCF from October 22,2004 until April 15, 2005. See Exhibit 1 at 9:8 -10:9. He was then transferred to NSCF where he remained incarcerated until his release on May 10,2005. See id. at 10:10-15. He has not been incarcerated since his release on May 10, 2005. See id. at 10:16-21. Because Bock has not been incarcerated at NWSCF for nearly two years and the Department no longer employs Defendant Blair, his claim for injunctive relief against Defendant Blair is moot. See Mawhinney, 542 F.2d at 2.
Defendant David Turner is a Corrections Living Unit Supervisor at NWSCF. See Exhibit 8 at interrog. 1; Complaint at <j[ 3(d). Since Bock has not been incarcerated at
8

NWSCF for more than one and one-half years, his claim for injunctive relief against Defendant Turner is moot. See Mawhinney, 542 F.2d at 2.
Defendant Stuart Gladding is the Superintendent of NSCF. See complaint at <][ 3(e). Bock was incarcerated at NSCF from April 15, 2005 until May 10,2005. See Exhibit 1 at 10:10-18. He was released from incarceration on May 10, 2005 and has not been incarcerated at time since that date. See id. at 10:16-21. Since Bock has not been incarcerated at NSCF for more than one and one-half years, his claim for injunctive relief against Defendant Gladding is moot. See Mawhinney, 542 F.2d at 2.
Furthermore, at his deposition Bock testified that he does not have any knowledge that any of the Defendants have burdened or prevented him from practicing his religion since his release from incarceration. See Exhibit 1 at 187:23 -199:11. Bock also stated in his responses to Defendant Gold's discovery that he does not intend to commit any act that may violate a condition or requirement by which he must abide. See Exhibit 3 at interrog. 13. Indeed, Bock has not been incarcerated since his release on May 10,2005. See id. at 10: 16-21. "[A] party seeking a preliminary injunction must establish that (1) absent injunctive relief, it will suffer an irreparable injury and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and the balance of hardships tips in favor of the movant." Hickerson v. City of New York, 146 F.3d 99,103 (2d Cir. 1998). A party moving for a mandatory injunction that alters the status quo by commanding a positive act must meet a higher standard, however. Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995). That is, in addition to demonstrating irreparable harm, "[t]he moving party must make a clear or substantial showing of a likelihood of success" on the
9

merits, Jolly v. Coughlin, 76 F.3d 468,473 (2d Cir. 1996) (internal quotation marks omitted), a standard especially appropriate when a preliminary injunction is sought against government. Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006). "To satisfy the irreparable harm requirement, plaintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm." See Freedom Holding, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (citation and internal quotation marks omitted). Bock has not alleged that he will suffer irreparable injury absent the requested injunctive relief, nor has he come forward with any evidence demonstrating such. Indeed, he claims that he does not intend to commit any act that may violate a condition or requirement by which he must abide as a condition of his release from confinement. Moreover, he testified at his deposition that he does not have any knowledge that the Defendants have prevented or burdened his practice of his religion since his release from incarceration. See Exhibit 1 at 188:2-5. Thus, the likelihood that he will be re-incarcerated at NWSCF or NSCF and that Defendants will deny of limit his exercise of his religious beliefs is speculative, at best. Accordingly, he has not demonstrated a clear or substantial showing of a likelihood of success on his claim for injunctive relief.
Three of the Defendants against whom Bock asserts a claim for injunctive relief are no longer employees of the Department. With regard to the two Defendants who are still employed by the Department, Bock has not been incarcerated at the correctional facilities where they work for nearly two years. Indeed, Bock has not been incarcerated
10

'.
in any correctional facility for nearly two years. Therefore, Bock's claim for injunctive relief against Defendants is moot and that claim should be dismissed. VI. Defendant Gold is entitled to summary judgment on Bock's § 1983 and
RLUIPA claims against him in his individual capacity because Defendant Gold was not personally involved in the alleged violations. Bock sues Defendant Gold in his individual capacity and seeks compensatory and punitive damages for Defendant Gold's alleged denial of Bock's First Amendment right to exercise his asserted religious beliefs and for allegedly burdening Bock's free exercise of religion protected by RLUIPA. See Complaint. Bock alleges that Defendant Gold "had ultimate authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order." See id. at <)[ 6(a). His § 1983 and RLUIPA claims against Defendant Gold fail because he has not produced any evidence that shows that Defendant Gold was involved in, much less aware of, the alleged violation of his free exercise rights. The uncontroverted evidence establishes that Defendant Gold was not aware that Bock was requesting accommodations to observe his religion and did not participate in the decisions regarding those requests. It is well established that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991) (quotation marks and citation omitted). Accord Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). Similarly, the personal involvement of a state official sued in his individual capacity is a prerequisite to a plaintiff's recovery of damages from the official in a RLUIPA action. See Lee v. Wenderlich, 2006 WL 2711671, *10 (W.D.N.Y.
11

Sept. 21, 2006). Personal liability cannot be imposed on a state official under a theory of respondeat superior. See Black v. Coughlin II, 76 F.3d 72, 74 (2d Cir. 1996). A plaintiff must allege a "tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260,263 (2d Cir. 1986). Mere "linkage in the prison chain of command" is insufficient to implicate a state commissioner of corrections in a § 1983 claim. Ayers v. Coughlin, 780 F.2d 205,210 (2d Cir. 1985).
In his discovery to Bock, Defendant Gold asked him to "[s]et forth every fact that supports your contention that, as alleged in Paragraph 6 of the Complaint, that each of the defendants had authority to approve the requested accommodations and chose not to do so." See Exhibit 2 at interrog. 18. Bock responded as follows: "Defendant Gold, who is of Jewish descent and can be presumed to have familiarity with such matters as matzo and Passover seders, was the commissioner and thus had ultimate authority over the entire Department of Corrections." See id. Defendant Gold further requested that Bock "[s]et forth every fact that you contend supports your request for compensatory damages." See id. at interrog. 19. Bock responded as follows: "Defendants acted in violation of Vermont state statute, several of their own written policies and directives, the federal law known as RLUIPA and by virtue of their violation of RLUIPA, 42 USC 1983." See id. He subsequently amended his answer and stated that Defendants caused him psychological distress, mental anguish and trauma "[b]y their violations of federal law, state law and their own D.D.C. policies and directives[.]" See Exhibit 3 at interrog. 19. Finally, Defendant Gold requested that Bock "[s]et forth every fact that you contend supports your request for punitive damages." See Exhibit 2 at interrog. 20. Bock responded as follows: "See answer to preceding interrogatory." See id. He subsequently
12

amended his answer and stated that Defendants were repeatedly made aware of my religious needs on numerous occasions and failed to take any action and deliberately denied his requests for religious accommodations. See Exhibit 3 at interrog. 20.
At Bock's deposition, Defendants inquired whether Defendant Gold was aware that he was seeking accommodations to practice his religion. See Exhibit 1 at 86: 17-18. Bock responded, "pending discovery I don't know." Id. at 86:19. Defendants also asked Bock what Defendant Gold should have done in order not violate Bock's First Amendment free exercise rights. See Exhibit 1 at 135: 10-12. Bock responded that Defendant Gold should have granted his requests for accommodations to practice his religion. See id. at 135: 13-21. However, when asked if he or anyone else communicated these request to Defendant Gold, Bock testified that he does not know, but hopes that discovery will reveal the answer. See id. at 136:2-22. In his interrogatories to Defendant Gold, Bock requested that he list everything you did about, including whatever manner you responded to, Plaintiff's requests for DOC accommodation for religious observances. See Exhibit 4 at interrog. 19. Defendant Gold answered as follows: "Plaintiff did not communicate to me any requests that the Department of Corrections or I provide him accommodations to observe his religion. No employee of the Department of Corrections communicated to me any requests made by Plaintiff to observe his religion. Therefore, I did not have knowledge that Plaintiff was requesting accommodations to observe his religion. Accordingly, I did not do anything about any requests Plaintiff made for accommodations to observe his religion." See id. Indeed, Bock conceded at his deposition that he doesn't know if Defendant Gold was aware that he was seeking accommodations to practice his religion. See Exhibit 1 at 86: 13 - 87:6. He further
13

testified that he doesn't recall if he communicated his requests for accommodations to Defendant Gold and doesn't know if anyone did. See id. at 136:2-19.
It is undisputed that Defendant Gold was not aware that Bock was requesting accommodations to observe his religion and did not participate in the decisions regarding those requests. Bock has failed to come forward with any evidence that establishes Defendant Gold was personally involved in the alleged First Amendment and RLUIPA violations. Instead, he has only offered mere conclusory allegations that Defendant Gold violated his rights. Therefore, Defendant Gold is entitled to summary judgment on Bock's § 1983 and RLUIPA claims against him in his individual capacity. VII. Defendant Ryan is entitled to summary judgment on Bock's § 1983 and
RLUIPA claims against her in her individual capacity because Defendant Ryan was not personally involved in the alleged violations. Bock sues Defendant Ryan in her individual capacity and seeks compensatory and punitive damages for her alleged denial of Bock's First Amendment right to exercise his asserted religious beliefs and for allegedly burdening Bock's free exercise of religion protected by RLUIPA. See Complaint. Bock alleges that Defendant Ryan "had authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order." See id. at <J[ 6(b). His § 1983 and RLUIPA claims against Defendant Ryan fail because he has not produced any evidence that shows that Defendant Ryan was involved in, much less aware of, the alleged violation of his free exercise rights. In fact, the uncontroverted evidence establishes that Defendant Ryan was not aware that Bock was requesting accommodations to observe his religion and did not participate in the decisions regarding those requests.
14

In Defendant Gold's discovery to Bock, he asked him to "[s]et forth every fact that supports your contention that, as alleged in Paragraph 6 of the Complaint, that each of the defendants had authority to approve the requested accommodations and chose not to do so." See Exhibit 2 at interrog. 18. Bock responded as follows: "Defendant Ryan, a member of the Sisters of Mercy order who can be presumed to have familiarity with the general benefits of religiosity and faith, was the deputy commissioner under Gold." See id. Defendant Gold further requested that Bock "[s]et forth every fact that you contend supports your request for compensatory damages." See id. at interrog. 19. Bock responded as follows: "Defendants acted in violation of Vermont state statute, several of their own written policies and directives, the federal law known as RLUIPA and by virtue of their violation of RLUIPA, 42 USC 1983." See id. He subsequently amended his answer and stated that Defendants caused him psychological distress, mental anguish and trauma "[b]y their violations of federal law, state law and their own D.O.C. policies and directives[.]" See Exhibit 3 at interrog. 19. Finally, Defendant Gold requested that Bock "[s]et forth every fact that you contend supports your request for punitive damages." See Exhibit 2 at interrog. 20. Bock responded as follows: "See answer to preceding interrogatory." See id. He subsequently amended his answer and stated that Defendants were repeatedly made aware of my religious needs on numerous occasions and failed to take any action and deliberately denied his requests for religious accommodations. See Exhibit 3 at interrog. 20.
At Bock's deposition, Bock testified that that he did not verbally request that Defendant Ryan provide him accommodations to enable him to practice his religion. See Exhibit 1 at 51:24 - 52:5. He further testified that he does not know whether his requests
15

were communicated to Defendant Ryan. See id. at 52:9-11. He also testified that he doesn't know if Defendant Ryan was aware that he requested accommodations to enable him to practice his religion. See id. at 87:4-6. In his interrogatories to Defendant Ryan, Bock requested that she list everything you did about, including whatever manner you responded to, Plaintiff's requests for DOC accommodation for religious observances. See Exhibit 5 at interrog. 19. Defendant Ryan answered as follows: "Plaintiff did not communicate to me any requests that the Department of Corrections or I provide him accommodations to observe his religion. No employee of the Department of Corrections communicated to me any requests made by Plaintiff to observe his religion. Therefore, I did not have knowledge that Plaintiff was requesting accommodations to observe his religion. Accordingly, I did not do anything about any requests Plaintiff made for accommodations to observe his religion." See id.
It is undisputed that Defendant Ryan was not aware that Bock was requesting accommodations to observe his religion and did not participate in the decisions regarding those requests. Bock has failed to come forward with any evidence that establishes Defendant Ryan was personally involved in the alleged First Amendment and RLUIPA violations. Instead, he has only offered mere conclusory allegations that Defendant Ryan violated his rights. Therefore, Defendant Ryan is entitled to summary judgment on Bock's § 1983 and RLUIPA claims against her in her individual capacity. VIII. Defendant Gladding is entitled to summary judgment on Bock's § 1983 and
RLUIPA claims against him in his individual capacity because Defendant Gladding was not personally involved in the alleged violations. Bock sues Defendant Gladding in his individual capacity and seeks compensatory and punitive damages for Defendant Gladding's alleged denial of Bock's First
16

Amendment right to exercise his asserted religious beliefs and for allegedly burdening Bock's free exercise of religion protected by RLUIPA. See Complaint. Bock alleges that Defendant Gladding "had authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order." See id. at <]I 6(e). His § 1983 and RLUIPA claims against Defendant Gladding fail because he has not produced any evidence that shows that Defendant Gladding was involved in, much less aware of, the alleged violation of his free exercise rights. In fact, the uncontroverted evidence establishes that Defendant Gladding was not aware that Bock requested the accommodations to observe his religion that he complains of in this lawsuit and did not participate in the decisions regarding those requests.
In Defendant Gold's discovery to Bock, he asked him to "[s]et forth every fact that supports your contention that, as alleged in Paragraph 6 of the Complaint, that each of the defendants had authority to approve the requested accommodations and chose not to do so." See Exhibit 2 at interrog. 18. Bock responded as follows: "Defendant Gladding was superintendent at NSCF during Plaintiff's imprisonment there and thus the person with ultimate authority over everything that transpired at the facility." See id. at interrog. 18. Defendant Gold further requested that Bock "[s]et forth every fact that you contend supports your request for compensatory damages." See id. at interrog. 19. Bock responded as follows: "Defendants acted in violation of Vermont state statute, several of their own written policies and directives, the federal law known as RLUIPA and by virtue of their violation of RLUIPA, 42 USC 1983." See id. 19. He subsequently amended his answer and stated that Defendants caused him psychological distress, mental anguish and
17

trauma "[b]y their violations of federal law, state law and their own D.O.C. policies and directives[.]" See Exhibit 3 at interrog. 19. Finally, Defendant Gold requested that Bock "[s]et forth every fact that you contend supports your request for punitive damages." See Exhibit 2 at interrog. 20. Bock responded as follows: "See answer to preceding interrogatory." See id. at interrog. 20. He subsequently amended his answer and stated that Defendants were repeatedly made aware of my religious needs on numerous occasions and failed to take any action and deliberately denied his requests for religious accommodations. See Exhibit 3 at interrog. 20.
Bock testified at his deposition that he does not know whether his requests for accommodations that he complains of in this lawsuit were communicated to Defendant Gladding. See Exhibit 1 at 52:6-13. He further testified that the only request for accommodations that Defendant Gladding could have granted was his request with regard to Passover because that is the only request that is germane to Bock's incarceration at NSCF, where Defendant Gladding is superintendent. See id. at 133:3-6; 146:14-19. Finally, Bock stated that he does not know that Defendant Gladding chose not to grant his request, as he alleged in his Complaint, "pending further discovery." See id. at 133:7-13.
In his interrogatories to Defendant Gladding, Bock requested that he list everything you did about, including whatever manner you responded to, Plaintiff's requests for DOC accommodation for religious observances. See Exhibit 6 at interrog. 19. Defendant Gladding answered as follows: "After I received the letter Plaintiff wrote to me requesting that he be permitted to wear a yarmulke, I referred the request to David Martinson to address." See id. Bock also requested that Defendant Gladding set forth the names of all persons involved in the decisions specific to Plaintiff's requests for
18

religious accommodation, or who should have been involved, between October 2004 and May 2005. See id. at interrog. 23. Defendant Gladding responded "Chris Barton, David Martinson, Brian Reed, David Turner, Brian Bilodeau, Mark Russell, and Robert Arkley were involved in the decisions specific to Plaintiff's requests for religious accommodation." See id. Thus, it is undisputed that Defendant Gladding was not, nor should have been, personally involved in the response to Bock's request for accommodations to observe his religion. Bock has failed to come forward with any evidence that establishes Defendant Gladding was personally involved in the alleged First Amendment and RLUIPA violations. Instead, he has only offered mere conclusory allegations that Defendant Gladding violated his rights. Therefore, Defendant Gladding is entitled to summary judgment on Bock's § 1983 and RLUIPA claims against him in his individual capacity. IX. Defendant Blair is entitled to summary judgment on Bock's § 1983 and
RLUIPA claims against her in her individual capacity because Defendant Blair was not personally involved in the alleged violations. Bock sues Defendant Blair in her individual capacity and seeks compensatory and punitive damages for Defendant Blair's alleged denial of Bock's First Amendment right to exercise his asserted religious beliefs and for allegedly burdening Bock's free exercise of religion protected by RLUIPA. See Complaint. Bock alleges that Defendant Blair "had authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order." See id. at <)[ 6(c). His § 1983 and RLUIPA claims against Defendant Blair fail because he has not produced any evidence that shows that Defendant Blair was involved in the alleged
19

 
 violation of his free exercise rights. Indeed, the uncontroverted evidence establishes that Defendant Blair did not participate in the decisions regarding those requests.
In Defendant Gold's discovery to Bock, he asked him to "[s]et forth every fact that supports your contention that, as alleged in Paragraph 6 of the Complaint, that each of the defendants had authority to approve the requested accommodations and chose not to do so." See Exhibit 2 at interrog. 18. Bock responded as follows: "Defendant Blair was the superintendent at NWSCF during Plaintiff's imprisonment there and thus the person with ultimate authority over everything that transpired at the facility." See id. at interrog. 18. Defendant Gold further requested that Bock "[s]et forth every fact that you contend supports your request for compensatory damages." See id. at interrog. 19. Bock responded as follows: "Defendants acted in violation of Vermont state statute, several of their own written policies and directives, the federal law known as RLUIPA and by virtue of their violation of RLUIPA, 42 USC 1983." See id. 19. He subsequently amended his answer and stated that Defendants caused him psychological distress, mental anguish and trauma "[b]y their violations of federal law, state law and their own D.O.C. policies and directives[.]" See Exhibit 3 at interrog. 19. Finally, Defendant Gold requested that Bock "[s]et forth every fact that you contend supports your request for punitive damages." See Exhibit 2 at interrog. 20. Bock responded as follows: "See answer to preceding interrogatory." See id. at interrog. 20. He subsequently amended his answer and stated that Defendants were repeatedly made aware of my religious needs on numerous occasions and failed to take any action and deliberately denied his requests for religious accommodations. See Exhibit 3 at interrog. 20.
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In his interrogatories to Defendant Blair, Bock requested that she list everything she did about, including whatever manner you responded to, Plaintiff's requests for DOC accommodation for religious observances. See Exhibit 7 at interrog. 19. Defendant Blair answered as follows: "I do not recall receiving from Plaintiff requests for accommodation for religious observances. If I did, I would have referred them to David Turner to investigate and respond." See id. Bock also requested that Defendant Blair set forth the names of all persons involved in the decisions specific to Plaintiff's requests for religious accommodation, or who should have been involved, between October 2004 and May 2005. See id. at interrog. 23. Defendant Blair responded "Chris Barton, David Martinson, Brian Reed, David Turner, Brian Bilodeau, Mark Russell, and Robert Arkley were involved in the decisions specific to Plaintiff's requests for religious accommodation." See id. Thus, it is undisputed that Defendant Blair was not, nor should have been, personally involved in the response to Bock's request for accommodations to observe his religion. Bock has failed to come forward with any evidence that establishes Defendant Blair was personally involved in the alleged First Amendment and RLUIPA violations. Instead, he has only offered mere conclusory allegations that Defendant Blair violated his rights. Therefore, Defendant Blair is entitled to summary judgment on Bock's § 1983 and RLUIPA claims against her in her individual capacity. X. Defendants are entitled to summary judgment on Bock's RLUIPA claims
against them in their individual capacities because RLUIPA does not authorize the recovery of damages from state employees in their individual capacities. A threshold issue is in the analysis of Bock's RLUIPA claim is whether that statute imposes liability for damages against government officials in their individual capacities. RLUIPA provides, in relevant part, that:
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No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, 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. 42 U.S.c. § 2000cc-1(a) (emphasis added). It further provides that, "A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.c. § 2000cc-2(a) (emphasis added). RLUIPA applies to government programs or activities that received Federal financial assistance. 42 U.S.C. § 2000cc-1(b)(1). Thus, the statute's proscriptive language addresses conduct by "government," not individuals, and, similarly, the statute's relief provision provides for judicial relief against "a government," not individuals. Courts interpreting this statutory language have concluded that it permits claims against a governmental entity, but not against an individual officer, except in his or her official capacity. See Boles v. Neet, 402 F.Supp.2d 1237, 1240 (D.Colo. 2005) (citing Hale 0 Kaula Church v. Maui Planning Comm'n, 229 F.Supp.2d 1056,1067 (D.Haw. 2002) ("RLUIPA provides a cause of action against 'governments' and does not appear to allow causes of action against individuals."); Morris-EI v. Menei, 2006 WL 1455592, at *3 (W.D.Pa. 2006) (noting that RLUIPA does not authorize damages against individual defendants, but only "appropriate relief against a government"); Rowe v. Davis, 373 F.Supp.2d 822,828 (N.D.lnd. 2005) (RLUIPA claim may proceed against correctional officer or his successor in an official capacity basis); Gooden v. Crain, 405 F.Supp.2d 714, 723 ("RLVIPA does not contemplate recovering damages from individuals); Smith v. Haley, 401 F.Supp.2d 1240, 1246 (M.D.Ala. 2005) (expressing doubt as to whether
22

RLUIPA authorizes individual damages); and Kay v. Friel, 2007 WL 295556 at *4 (D.Utah 2007) ("Defendants are not amendable to suit in their individual capacities under RLUIPA").
Defendants, in their individual capacities, are not parties to the Department of Corrections' acceptance of funds from the federal government in exchange for implementation of federal legislation. Thus, RLUIPA does not provide for individual liability. Indeed, the Second Circuit has found that other spending clause legislation is inapplicable to individual defendants. See Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (neither Rehabilitation Act nor Americans with Disabilities Act, 42 U.S.c. § 12132, provide for individual capacity suits against state officials); see also Parkinson v. Goord, 116 F.Supp.2d 390,399 (W.D.N.Y. 2000) (Larimer, Ch. J.) (same for claims under Americans with Disabilities Act). Therefore, Defendants are entitled to judgment as a matter of law on Bock's RLUIPA individual capacity claims for monetary damages. XI. Defendant Turner is entitled to qualified immunity regarding Bock's
RLUIPA and First Amendment claims. As discussed in Sections VI-IX, supra, Defendants Gold, Ryan, Gladding and Blair entitled to summary judgment because they were not personally involved in the alleged denial of Bock's request for accommodations to exercise his religious beliefs. In regard to Defendant Turner, Bock was incarcerated at NWSCF where Defendant Turner works during Hanukkah and Purim, but not Passover. See Exhibit 1 at 10:7-18 and Exhibit 9 at Exhibit B. Bock was incarcerated at NSCF during Passover and Defendant Turner did not have the authority to grant Bock's request that NSCF provide him accommodations to practice his religion. See Exhibit 10. Bock admits that he was able
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to make his own dietary provisions for Hanukkah. See Exhibit 1 at 15:2-19 and Exhibit 9 at Exhibit F (April 8,2005 Grievance Form #1). He also requested that a Rabbi be permitted to bring a dreidel and menorah when he visited Bock for Hannukah. See Exhibit 9 at Exhibit A (Gordon Bock memo to Brian Reed). Defendant Turner approved Bock's request that the Rabbi bring a dreidel. See Exhibit 8 at Exhibit 1 (David Turner memo to Gordon Bock) and interrog. 22. He denied Bock's request that Rabbi bring a menorah because NWSCF does not allow lights or matches in the facility. See Exhibit 8 at Exhibit 1 (David Turner memo to Gordon Bock). However, Defendant Turner indicated that NWSCF would permit the Rabbi to bring an electric or battery operated menorah, provided that it is checked by security staff upon entering and the Rabbi takes it with him when he leaves. See Exhibit 8 at Exhibit 1 (David Turner memo to Gordon Bock) and interrog. 22. In regard to Plaintiff's request that the Rabbi bring in food associated with Purim, Defendant Turner denied that request because the introduction of food items from outside NWSCF poses a threat to the security of the facility. See Exhibit 8 at Exhibit 1 (David Turner memo to Gordon Bock) and interrog. 22.
The doctrine of qualified immunity shields public officials performing discretionary official functions "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 344-45 (1986). Ruling on the qualified-immunity defense requires a two-step inquiry. First, the court must consider whether the plaintiffs factual allegations, both those unchallenged and those as to which
24

the record creates a genuine dispute, "show the [official's] conduct violated a constitutional [or statutory] right." Saucier v. Katz, 533 U.S. 194,201 (2001) (citing Stegert v. Gilley, 500 U.S. 226, 232 (1991)). When determining whether a right has been clearly established, the Second Circuit considers "(1) whether the right in question was defined with reasonable specificity; (2) whether the decisional law of the Supreme Court and the applicable circuit court supported the existence of the right in question; and (3) whether under preexisting law a reasonable defendant would have understood that his or her acts were unlawful." Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 793 (2d Cir. 2002) (citing Jermosen v. Smith, 945 F.2d 547,550 (2d Cir. 1991)). If the assumed facts do not establish a violation, the defendant must be granted summary judgment. Id. On the other hand, if violation of a right can be shown, "the next, sequential step is to ask whether the right was clearly established," id., and, if it was, whether "the evidence is such that, even when it is viewed in the light most favorable to the plaintiff[ ] and with all permissible inferences drawn in [his] favor, no rational jury could fail to conclude that it was objectively reasonable for the defendant[ ] to believe that [he][was] acting in a fashion that did not violate a clearly established right," In re State Police Litig., 88 F.3d 111,123 (2d Cir. 1996).
Assuming that Defendant Turner's denial of Bock's request that a Rabbi bring him a menorah at Hanukkah and special food items at Purim violated Bock's right to have a Rabbi bring him those items, a rational jury could conclude that Defendant Turner believed he was acting in a manner that did not violate Bock's rights under RLUIPA or the First Amendment. It is self-evident that allowing the introduction of incendiary devices, such as matches or lighter to light candles on a menorah, into a correctional
25

facility creates a risk to the safety and security of that facility. Moreover, prohibiting the introduction of food into a prison by individuals not employed there furthers the Department's interest in maintaining security and the safety of staff and inmates at the prison because contraband could be hidden in such food. Conduct expressly aimed at protecting prison security is "legitimate" beyond question and is in fact "central to all other correctional goals." Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (quoting Pell v. Procunier, 417 U.S. 817, 823 (1973)). Thus, a rational jury could conclude that Defendant Turner believed he was he was acting in a fashion that violated Bock's rights because he acted to maintain the safety and security of NWSCF. Therefore, Defendant Turner is entitled to qualified immunity and summary judgment. XII. Bock's claim for punitive damages fails because Defendants Gold, Ryan,
Gladding and Blair did not participate in the decisions regarding Bock's request for accommodations and Bock has not produced any evidence showing that Defendant Turner was motivated by evil motive or callous indifference to Bock's rights. Bock request punitive damages for Defendants' alleged unlawful conduct. See Complaint. In order to establish a claim for punitive damages, he must establish that Defendants' conduct was motivated by an evil motive or intent or involved reckless or callous indifference to his federally protected rights. Disorbo v. Hoy, 343 F.3d 172, 186 (2d Cir. 2003) (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625 (1983)). His proof must show malicious intent or deliberate indifference to the federally protected rights that are implicated. See Smith, 461 U.S. at 56, 103 S.Ct. at 1640. Rule 56(e) provides that a party opposing a properly supported motion for summary judgment may not rest upon "mere allegation ... , but must set forth specific facts showing that there is a genuine issue for triaL .. This is true even where the evidence is likely to be within the
26

possession of the defendant [e.g. the defendant's state of mind], as long as the plaintiff has had a full opportunity to conduct discovery". Anderson, 477 U.S. at 256-57. Bock has not set forth any facts showing that Defendants acted with evil motive or intent or reckless or callous indifference to his rights, much less produced evidence of such motivation or conduct.
In Defendant Steven Gold's First Set of Interrogatories and Requests for Production of Documents, Defendant Gold requested that Plaintiff "[s]et forth every fact that you contend supports your request for punitive damages." See Exhibit 2 at interrog. 20. Plaintiff responded by referring to his answer to the preceding interrogatory, which states "Defendants acted in violation of Vermont state statute, several of their own written policies and directives, the federal law known as RLUIPA and by virtue of their violation of RLUIPA, 42 USC 1983." See id. at interrog. 19-20. In January 2007, Plaintiff revised his previous response to interrogatory 20 and claimed "Defendants were repeatedly made aware of my religious needs and requests on numerous occasions[.]" See Exhibit 3 at interrog. 20. He claims Defendants failed to take any action and deliberately denied his requests. See id. Bock asserts that Defendants failure to comply with his requests "leads to the inevitable conclusion that Defendants' actions were knowing, deliberate, willful and malicious." See id. However, he does not offer any facts or evidence that show that Defendants acted with malice or deliberate indifference. Far from hard evidence showing that Defendants acted with malice or deliberate indiffence to Bock's federally protected rights, his responses are little more than conclusory allegations, conjecture, and speculation.
27

.. ,
Bock conceded at his deposition that he does not even know what Defendant Gold, Ryan, or Gladding did to burden the practice of his religion. See Exhibit 1 at 29:5 - 33:4; 38: 15 - 43: 15. Moreover, neither Bock nor any Department employee informed Defendants Gold and Ryan that Bock was seeking accommodations to practice his religion. See Exhibit 4 at interrog. 16-19 and Exhibit 5 at inerrog. 16-19. Bock conceded at his deposition that he doesn't know if Defendants Gold or Ryan were aware that he was seeking accommodations to practice his religion. See Exhibit 1 at 86:13 - 87:6. Bock further testified that he doesn't recall if he communicated his requests for accommodations to Defendant Gold and doesn't know if anyone did. See id. at 136:2-19. He also testified that he does not have any knowledge that Defendant Ryan chose not to grant his request for accommodations, despite explicitly alleging in his Complaint that she did so. See id. at 122:6-9 and Complaint at <]I 6(b). The only request for accommodations that was communicated to Defendant Gladding was Bock's request to wear a yarmulke. See Exhibit 6 at interrog. 16-19. That request was granted. See Exhibit 1 at 90:9-13. Bock also testified that he does not know why Defendant Blair did not grant his request for accommodations. See Exhibit 1 at 125: 12-22. Furthermore, Defendants Gold, Ryan, Gladding, and Blair were not involved with the decisions regarding Bock's request for accommodations. See Exhibits 4,5,6, and 7 at interrog. 23. Defendants Gold, Ryan, Gladding and Blair did not deny Bock's request for accommodations to practice his religion. Accordingly, they could not have acted with evil motive or intent or reckless or callous indifference to Bock's federally protected rights by denying his requests for accommodations because they did not deny his request, nor were they even aware of the requests.
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With respect to Defendant Turner, he granted numerous of Bock's requests for accommodations, such as allowing a Rabbi to visit him, allowing the Rabbi to bring tefillin, a dreidel and electric or battery-operated menorah with him when he visited Bock. See Exhibit 8 at Exhibit 1 (David Turner memo to Gordon Bock) and interrog. 22. Bock conceded at his deposition that he was able to make his own provisions for Hanukkah. See Exhibit 1 at 15:2-19 and Exhibit 9 at Exhibit F (April 8,2005 Grievance Form #1). The only other holiday that occurred while Bock was incarcerated at NWSCF was Purim. See Exhibit 1 at 10:7-9 and Exhibit 9 at Exhibit B. Defendant Turner did not grant Bock's request that a Rabbi bring in a menorah and food associated with Purim because it could pose a threat to the security of the facility. See id. Far from showing malicious intent or deliberate indifference to Bock's federally protected rights, this establishes that Defendant Turner's decision was based upon concerns for the safety of the staff and inmates at NWSCF.
Defendants are entitled to summary judgment on Bock's claims for punitive damages because the undisputed evidence establishes that Defendants Gold, Ryan, Gladding and Blair did deny Bock's request for accommodations to practice his religion that is the subject of this lawsuit. Accordingly, they did not with evil motive or intent or reckless or callous indifference to Bock"s rights. Moreover, Defendant Turner's denial of Bock's request that a Rabbi bring hIm food associated with Purim was based upon the threat to the security of the facility that such action would pose. Ensuring the safety of a correctional facility is not an evil motive, nor does it constitute reckless or callous indifferenc'e to Bock's rights. Therefore, Defendant Turner is also entitled to summary judgment on Bock's claims for punitive damages.
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......

WHEREFORE, Defendants requests that this Honorable Court enter summary
judgment in their favor.
DATED at Waterbury, Vermont this 27th day of February 2007.
WILLIAM H. SORRELL ATTORNEY GENERAL
By: Kurt A. Kuehl Assistant Attorney General Vermont Attorney General's Office 103 South Main Street Waterbury, VT 05671-0701 Counsel for Defendants

30

 
 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT

Gordon Bock, Plaintiff,
v.
Steven Gold, Janice Ryan, Susan Blair, David Turner, and Stuart Gladding,
Defendants.

: : : : : File No. 1:05-CV-151 : : : : :

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (Paper 57)
Plaintiff Gordon Bock has filed this action against Defendants Steven Gold, Janice Ryan, Susan Blair, David Turner, and Stuart Gladding, in their individual and official capacities, as employees of the Vermont Department of Corrections. Bock alleges that the Defendants violated his civil rights while he was an inmate in the Vermont prison system by denying him the ability to practice his religion. Bock’s claims are brought pursuant to both 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act(“RLUIPA”) 42 U.S.C. § 2000cc et seq. He seeks injunctive relief as well as compensatory and punitive damages. The case is currently before the

1

Court on the Defendants’ motion for summary judgment. Background
Unless otherwise indicated, the following facts are undisputed.
Bock was incarcerated at the Northwest State Correctional Facility (“Northwest”) between October 22, 2004 and April 15, 2005. (Paper 58, ¶ 1). He was transferred to Northern State Correctional Facility (“Northern State”) on April 15, 2005 and remained there until his release on May 10, 2005. (Id. at ¶ 3). He has not been incarcerated since his release.
The Jewish holidays of Hanukkah and Purim occurred while Bock was incarcerated at Northwest. (Paper 58, ¶ 2). Bock alleges that he requested numerous religious accommodations for these two holidays, such as visitation by a rabbi, a menorah, and special foods brought in from outside the prison. (Id. at ¶ 43). Some of these requests were granted, at least in part, and some were denied. (Id. at ¶¶ 43-45). While Bock was allowed to prepare his own food at the prison, he was not allowed to bring in outside food. (Id. at ¶¶ 44-45). Bock was allowed visitation by a rabbi, but was only allowed to have an electric menorah while the
2

rabbi was there. (Id. at ¶ 43). The Defendants cited safety and security concerns for denying Bock’s requests.
Passover occurred during Bock’s incarceration at Northern State. (Paper 58, ¶ 4). Bock requested, inter alia, special foods to be brought in so he could meet the dietary restrictions of Passover. (Paper 66-2, ¶¶ 2-3). No food was provided for Bock’s Passover observance. (Paper 66-11, ¶ 1).
The Department of Corrections has a written policy that requires certain allowances and procedures for inmate religious observances. Department policy requires that prior to barring any equipment, substances, or observances of a religion, the Superintendent of the facility shall submit a report to the Commissioner for approval. Vermont Department of Corrections Policy 380 § 4.5.1. (Paper 66-4, 2). No report about the denial of Bock’s requests was ever submitted to or approved by the Commissioner.
During the period at issue, Defendant Gold was the Commissioner of the Department of Corrections. (Paper 58, ¶¶ 6-7). Defendant Ryan was the Deputy Commissioner of the Department of Corrections. (Id. at ¶¶ 8-9). Defendant Blair was the Superintendent of Northwest. (Id. at ¶¶ 11-
3

12). Defendant Turner was a Corrections Living Unit Supervisor at Northwest. (Id. at ¶ 13). Defendant Gladding was the Corrections Service Manager and Superintendent of Northern State. (Id. at ¶ 10).
Summary Judgment Standard The Court will grant summary judgment if no genuine issue of material fact exists, and, based on undisputed facts, the moving party is entitled to judgment as a matter of law. Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006)(citing D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)). In deciding whether there is a genuine issue of material fact the Court must resolve all ambiguities and draw all inferences in the light most favorable to the nonmoving party. Id. (citing Ford v. McGinnis, 352 F.3d 582, 287 (2d Cir. 2003)).
Discussion I. Injunctive Relief
Bock was released from state custody on May 10, 2005 and has since been released from probation. He is no longer under the control of the Department of Corrections. The parties agree that the issue of injunctive relief is now moot. Therefore, I recommend that any claim for injunctive
4

relief be dismissed as moot. II. 42 U.S.C. § 1983
Bock brings an action against Defendants under 42 U.S.C. § 1983 for deprivation of his religious rights. Section 1983 creates a cause of action against those who deprive any person of their rights under the Constitution or Federal law. Maine v. Thiboutot, 448 U.S. 1, 4-6 (1980).
A. Sovereign Immunity Defendants argue that they are immune from suit under §
1983 in their official capacities under the Eleventh Amendment of the United States Constitution.
Sovereign immunity extends to state officials in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Therefore, the Defendants are immune from suit under § 1983 in their official capacities unless the immunity has been waived. See id.
Bock argues that the Defendants waived Eleventh Amendment immunity by failing to assert it in their Answer. The first affirmative defense listed in the Answer is “Sovereign immunity”. (Paper 10, 3). While Defendants did not explicitly spell out Eleventh Amendment immunity, the Supreme Court has said that Eleventh Amendment immunity is
5

often referred to as sovereign immunity even if it is a misnomer. Alden v. Maine, 527 U.S. 706, 712-13 (1999). While there may be a technical distinction between sovereign immunity and Eleventh Amendment immunity, it is not a distinction that would fail to inform the Plaintiff that it was raised or would cause Plaintiff prejudice. It has therefore not been waived.
Bock also argues that the Vermont Tort Claims Act, 12 V.S.A. § 5601, has waived Eleventh Amendment immunity. This argument lacks merit. Section 5601(g) explicitly states that, “Nothing in this chapter waives the rights of the state under the Eleventh Amendment of the United States Constitution.” Furthermore, Vermont’s waiver of sovereign immunity in its own courts under § 5601 is not a waiver of Eleventh Amendment immunity in federal court. Richards v. State’s Attorneys Office, 40 F. Supp. 2d 534, 537-38 (D. Vt. 1999). Therefore, the Defendants are immune from suit under § 1983 in their official capacities.
Eleventh Amendment immunity does not extend to suit against Defendants in their individual capacities and those claims are unaffected. They are discussed below.
B. Personal Involvement
6

Defendants Gold, Ryan, Gladding, and Blair claim that they are entitled to summary judgment on the claims against them in their individual capacities because they had no personal involvement in the alleged violations.
Personal involvement is required for an award of damages under § 1983. Moffit v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("It is well settled in this Circuit that personal involvement of a defendant in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983."). While "respondeat superior cannot form the basis for a § 1983 claim," Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998), the personal involvement of a supervisory defendant in a § 1983 claim may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or
7

(5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. See Hernandez v. Keane, 341 F. 3d 137, 144 (2d Cir. 2003); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Bock concedes that defendants Gold and Ryan in their positions as Commissioner and Deputy Commissioner were not personally involved in any violation as they had no knowledge of Bock’s requests for religious accommodations. Therefore, there can be no claim for damages under § 1983 against Gold or Ryan.
Defendant Gladding claims that he was not aware of Gold’s requests for accommodation and therefore was not personally involved in any violation. Bock argues that Gladding should have received Bock’s written request for Passover accommodations or seen a notation about accommodations requests in Bock’s file when Bock was transferred to Northern State.
While Bock has produced no direct evidence showing that Gladding was aware of his requests, it would be reasonable to infer from the evidence that Gladding learned of his request. Bock’s written request for Passover accommodations
8

was sent to Chris Barton, a subordinate of Gladding, and there was a notation in Bock’s file when he was transferred to Northern State about accommodations. This evidence combined with the Department’s policy of reporting all religious accommodations requests to the Commissioner before denying them, creates a reasonable inference that Gladding had such knowledge. Gladding may be personally involved by knowing of the violation and failing to remedy the wrong. Therefore, I recommend that summary judgment not be granted because there is a genuine factual dispute over Gladding’s personal involvement.
Defendant Blair claims that there is insufficient evidence to show that she was personally involved in any violation. Bock alleges that he informed Blair of his requests for accommodations repeatedly. Blair claims that she does not recall being made aware of any requests. This conflicting testimony creates a genuine dispute on the issue of Blair’s personal involvement and summary judgment is inappropriate on this issue. III. RLUIPA
Bock also brings an action against Defendants pursuant to RLUIPA, 42 U.S.C. § 2000cc et seq. RLUIPA prohibits the
9

government from imposing substantial and unjustified burdens on the religious exercise of prisoners. 42 U.S.C. § 2000cc1(a). RLUIPA defines religious exercise as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000-5(7)(A). RLUIPA provides that “a person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 44 U.S.C. § 2000cc-2(a). Defendants argue that “appropriate relief” does not include monetary damages and therefore RLUIPA does not create any cause of action for damages. Bock claims that Congress intended “appropriate relief” to include monetary damages and, without that possibility, the protections of RLUIPA are weakened.
While the Second Circuit has not decided this issue, many courts have addressed the issue with differing results. See Smith v. Allen, 502 F.3d 1255, 1270 (11th Cir. 2007)(“To put it mildly, ‘there is a division of authority’ on this question.”). In Madison v. Virginia, 474 F.3d 118, 131-32 (4th Cir. 2006), the court held that Congress did not intend to abrogate a state’s Eleventh Amendment immunity from damages claims under RLUIPA. The court decided that
10

“appropriate relief” is an open-ended term, indicating that Congress had not unequivocally extended a waiver of immunity to monetary claims. Id. Thus, the court concluded that plaintiffs were barred from bringing damages claims against states under RLUIPA. Id. at 133.
Some courts have rejected the reasoning of Madison. In Smith v. Allen, the court reasoned that in the absence of guidance from Congress with respect to remedies, the availability of all appropriate remedies should be presumed. 502 F.3d at 1270-71 (citing Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 68-69 (1992)). The court found that “appropriate relief” provided no guidance and therefore presumed that monetary damages were available under RLUIPA. Id.
The court in Daker v. Ferrero, 475 F. Supp. 2d 1325 (N.D. Ga. 2007), provides a thorough overview of the views on RLUIPA damages taken by the federal courts. Id. at 133537. The court addressed whether under the canon of constitutional avoidance RLUIPA authorizes monetary damages against defendants in their individual capacities. Id. at 1333-47. The constitutional avoidance canon states that when a statute is susceptible to two possible constructions,
11

and one raises serious constitutional questions, the other construction must be adopted. Id. at 1334 (citing Jones v. United States, 526 U.S. 227, 239 (1999) and Clark v. Martinez, 543 U.S. 371 (2005)). Dakar found that RLUIPA was susceptible to at least two possible constructions because of the uncertainty of RLUIPA jurisprudence and the ambiguity of the term “appropriate relief”. Id. at 1335-37. The court concluded that serious constitutional questions would arise if RLUIPA was interpreted to authorize damages against private individuals. Id. at 1338-47. The court analyzed the constitutionality of RLUIPA damages under the Spending Clause and the Commerce Clause. Id. The court held that it was constitutionally questionable for Spending Clause legislation to authorize suits against private individuals who are not parties to the metaphorical federal funding contract between Congress and the State. Id. at 1339-42. Under the Commerce Clause, the court held there would be a serious question about the constitutionality of individual damages under RLUIPA because it is questionable whether RLUIPA regulates activity that substantially effects interstate commerce in any way. Id. at 1342-47.
In the present case the Court finds the reasoning of
12

Madison and Dakar to be persuasive. To create a claim for damages under RLUIPA against a state or its employees in their official capacities “the waiver of sovereign immunity must extend unambiguously to such monetary claims.” Lane v. Pena, 518 U.S. 187, 192 (1996). Unlike 42 U.S.C. § 1983 which explicitly creates “an action at law”, RLUIPA only creates an action for “appropriate relief” which is at best an ambiguous extension to monetary claims. Therefore, RLUIPA does not create a claim for monetary damages against the defendants in their official capacities.
Upon holding that the language “appropriate relief against a government” does not include damages against the state or its officials, it would be inconsistent to find that the language includes damages against an individual but not against a government. Following the reasoning of Dakar it would also raise serious constitutional questions to find that RLUIPA allows for damages against the individual.
While Bock urges a broader reading of RLUIPA, its language does not support it. While some courts have held that “appropriate relief” should be construed broadly, see, e.g., Smith v. Allen, 502 F.3d at 1270-71, to do so would violate the constitutional limits placed on Congress. Bock
13

argues that short term prisoners such as himself will be left without a remedy if damages are not allowed under RLUIPA because actions for injunctive relief will become moot once they are released. This proposition does not alter the analysis of the constitutional limits placed on Congress.
RLUIPA does not create an action for damages against state employees in either capacity. Summary judgment is appropriate for the defendants on the RLUIPA claims. IV. Qualified Immunity
Defendant Turner argues that he is entitled to qualified immunity because he was acting reasonably to maintain the safety and security of Northwest. The doctrine of qualified immunity shields governmental officials from liability for conduct taken within the scope of their official duties, as long as “‘their conduct does not violate a clearly established constitutional right of which a reasonable person would have known.’” Huminski v. Corsones, 386 F.3d 116, 143 (2d Cir. 2004) (quoting Shechter v. Comptroller of the City of New York, 79 F.3d 265, 268 (2d Cir. 1996)). "Clearly established means that (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second
14

Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful." Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (quoting Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003)).
Bock argues that the Department’s own internal policy clearly established his rights to practice his religion, and therefore it was unreasonable for Defendants to believe his rights were being protected. Department policy requires facilities to make “reasonable efforts” to allow inmates to practice their religion and make “every effort” to seek an alternative practice before barring a practice which presents a safety risk. Vermont Department of Corrections Policy 380 §§ 4.2, 4.5. Department policy takes the protection of religious freedom so seriously that the Commissioner must approve any denial of religious accommodations. Id. § 4.5.1. It is reasonable to infer that Turner knew of the policy and knew that denying Bock’s requests for religious accommodations violated his rights. The issue of qualified immunity therefore cannot be decided at this stage. V. Punitive Damages
15

Finally, Defendants argue that there is no evidence of malice, so Bock’s claim for punitive damages under § 1983 should be dismissed. Punitive damages may be awarded when a defendant’s conduct is motivated by malice or when it involves reckless or callous indifference to the rights of others. New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d Cir. 2006). A claimant must show a positive element of conscious wrongdoing to be awarded punitive damages. Id.
The Court finds that Bock has produced enough evidence to make a reasonable inference of malice. No report on Bock’s requests was ever sent to the Commissioner before they were denied, as required by Department policy. This allows for a reasonable inference of callous indifference to Bock’s rights. Bock has also alleged that inmates of other religions were allowed more accommodations than he was, such as Christmas lights being allowed where an electric menorah was not. Denying accommodations based on which religion the inmate is could demonstrate conscious wrongdoing. These disputes are sufficient to deny summary judgment on punitive damages at this stage.
16

Conclusion For the foregoing reasons I recommend that Defendants’ motion for summary judgment be GRANTED IN PART and DENIED IN PART. I recommend that all of Bock’s claims against defendants Gold and Ryan be DISMISSED. I recommend that all of Bock’s claims under RLUIPA be DISMISSED. I recommend that all of Bock’s claims against the defendants in their official capacities be DISMISSED. I recommend that Bock’s claim for injunctive relief be DISMISSED. Dated at Burlington, in the District of Vermont, this 28th day of November, 2007.
/S/ Jerome J. Niedermeier___ Jerome J. Niedermeier United States Magistrate Judge
Any party may object to this Report and Recommendation within 10 days after service by filing with the clerk of the court and serving on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. Failure to file objections within the specified time waives the right to appeal the District Court's order. See Local Rules 72.1, 72.3, 73.1; 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b), 6(a) and 6(e).
17

 
 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT

GORDON BOCK, Plaintiff
v.
SUSAN BLAIR, DAVID TURNER and STUART GLADDING,
Defendants

: : : : File No. 1:05-CV-151 : : : :

ORDER OF DISMISSAL The Court having been advised by Early Neutral Evaluator’s Report filed March 20, 2008 (Paper 84) that the above-entitled action has been settled, IT IS ORDERED THAT this action is hereby dismissed without costs, with the right to petition to reopen the action, upon good cause shown within 60 days, if settlement is not consummated. IT IS FURTHER ORDERED that the Clerk of Court serve copies of this order electronically, or by United States mail or facsimile, upon attorneys of record for the parties appearing in this case. Dated at Brattleboro, in the District of Vermont, this 21st day of March, 2008.

/s/ J. Garvan Murtha J. Garvan Murtha United States District Judge

 
 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT

U.S. DISTRICT CO!J1~' DISTRICT OF ilERMe
FJL E[)
2008 MAR 2 ( AM 8: 43

GORDON BOCK,

)

Plaintiff

)

)

)

v.

)

)

STEVEN GOLD, JANICE RYAN,

)

SUSAN BLAIR, DAVID TURNER

)

and STUART GLADDING,

)

acting in official and individual capacity )

Defendants

)

BY File No. 1:05-CV-151

STIPULATION TO DISMISS WITH PREJUDICE

Now come the parties, by and through their respective attorneys and stipulate and agree as follows:

1.

The State of Vermont will pay Plaintiffthe sum of $25,000 within 30

days of this date, in full settlement of all of the Plaintiffs claims,

including without limitation, his claims for attorneys' fees.

2.

The State of Vermont, Department of Corrections acknowledges that

the Aleph Institute of Surfside Florida is an appropriate provider of

kosher food and Jewish religious articles for Jewish inmates in

Department facilities pursuant to the Department's policies on Religious

Observances.

3.

The Plaintiff agrees to exchange for the settlement check a release for

the benefit of The State of Vermont and each of the named Defendants.

The claims that the Plaintiff has advanced or could advance by a proper

amendment of the complaints in Bock v. Gold, Docket Number 1:05 -

CV -149 and Bock v. Gold, Docket Numbers 186-3-05WnCv and

Supreme Court Docket #2006-276 shall be excluded from this release.

4.

The parties agree that the above captioned action shall be dismissed

with prejudice.

Dated at Burlington, Vermont this 19th Day of March, 2008.
Gor nBock ~
By: Barry Ka e, Esq. His Attorney

Dated at Burlington, Vermont this 19th Day of March, 2008.

STEVEN GOLD and all Defendants
By: rI'-·i y·' >{/- i
. Kurt A. Kuehl, Esq. Assistant Attorney General

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT

GORDON BOCK,

)

Plaintiff,

)

)

v.

)

)

STEVENGOLD,JANICERYAN,

)

SUSAN BLAIR, DAVID TURNER,

)

STUART GLADDING,

)

acting in official and individual capacity, )

Defendants.

)

File No. 1:05-CV-151

CERTIFICATE OF SERVICE

This certifies that on the 20th day of March 2008, I served copies of the

Stipulation to Dismiss With Prejudice and this Certificate of Service in the above-

captioned matter by mailing true and conformed copies thereof in sealed envelopes, via

U.S. Mail, first-class postage prepaid, to the following:

Aaron H. Hauptman, Esq. 575 Grand Street, Suite E-501 New York, NY 10002

Barry Kade, Esq. P.O. Box 55 Montgomery, VT 05470

Kurt A. Kuehl Assistant Attorney General Attorney General's Office 103 South Main Street, Ladd Hall Waterbury, VT 05671-0701 (802) 241-2288

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Gordon Bock,

:

Plaintiff,

:

:

v.

:

:

Steven Gold, Janice Ryan,

:

Susan Blair, David Turner, :

and Stuart Gladding,

:

Defendants.

:

______________________________:

File No. 1:05-CV-151

RULING ON MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (Paper 77)

Now pending before the Court are Magistrate Judge

Niedermeier’s Report and Recommendation of November 28, 2007

(Paper 77) and Plaintiff’s Objections (Paper 78). Upon de novo

review, the Court concludes there is no merit to the arguments

raised in Plaintiff’s objections to the dismissal of his claims

under the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. § 2000cc et. seq.

The language of RLUIPA allows for “appropriate relief

against a government.” 44 U.S.C. § 2000cc-2(a). The issue before

the Magistrate Judge and before the Court is whether “appropriate

relief” extends to claims for monetary damages. As Judge

Niedermeier points out, the Second Circuit has not ruled on this

issue and there is a difference of opinion in those circuits that

have considered the question. The Report and Recommendation

cites two examples of such differing views: in Madison v.

Virginia, 474 F.3d 118, 133 (4th Cir. 2006), the court concluded

plaintiffs were barred from bringing damages claims against states under RLUIPA; and Smith v. Allen, 502 F.3d. 1255, 1275 (11th Cir. 2007), in which the court presumed that “appropriate relief” allowed for monetary damages against a defendant in his or her official capacity.
Because RLUIPA does not create an action for damages against state employees in either their official or individual capacities, Judge Niedermeier recommends granting Defendants’ motion for summary judgment. (Paper 77 at 14). The Report and Recommendation relies on both Madison and a district court case, Daker v. Ferrero, 475 F. Supp. 2d 1325 (N.D. Ga. 2007), vacated on other grounds, 506 F. Supp. 2d 1295 (N.D. Ga. 2007).
Plaintiff claims the Magistrate Judge’s reliance on Daker is misplaced for two reasons. As a district court decision from the Eleventh Circuit, Daker was later superseded by Smith v. Allen. Additionally, since Daker involves claims for monetary damages under RLUIPA against officials in their individual capacities, it cannot “. . . be the basis for finding that monetary damages are not available against the defendants in their official capacities.” (Paper 78 at 7).
Plaintiff misconstrues Judge Niedermeier’s reasoning. Judge Niedermeier did not rely on Daker in deciding whether RLUIPA allows for monetary damages against defendants in their official capacities. The Report and Recommendation states: “In the
2

present case, the Court finds the reasoning of Madison and Daker to be persuasive.” (Paper 77 at 12-13). Judge Niedermeier relied on Madison in evaluating the claims against defendants in their official capacities and on Daker only for the purposes of assessing those claims against defendants in their individual capacities. In fact, Smith v. Allen supports the reasoning of Daker: “section 3 of RLUIPA-a provision that derives from Congress’ Spending Power-cannot be construed as creating a private action against individual defendants for monetary damages.” 502 F.3d at 1275.
Accordingly, the Report and Recommendation is AFFIRMED, APPROVED and ADOPTED as to Paper 57. See 28 U.S.C. § 636(b)(1). Defendants’ Motion for Summary Judgment (Paper 57) is GRANTED IN PART and DENIED IN PART. Bock’s claim for injunctive relief is DISMISSED as moot. All of Bock’s claims under 42 U.S.C. § 1983 against the defendants in their official capacities are DISMISSED. All of Bock’s claims against defendants Gold and Ryan are DISMISSED. All of Bock’s claims under RLUIPA are dismissed.
It appears the remaining § 1983 claims are against defendants Blair, Turner and Gladding in their individual capacities, including punitive damages.
The parties shall promptly select an ENE evaluator and arrange an ENE session to be conducted not later than April 1, 2008. They shall inform the Court, in writing, on or before
3

February 22, 2008, of the name of the evaluator and the date of the ENE session. This case shall be ready for trial on May 1, 2008.
SO ORDERED. Dated at Brattleboro, in the District of Vermont, this 7th day of February, 2008.
/s/ J. Garvan Murtha J. Garvan Murtha United States District Judge
4

 
 · .~

Case 1:05-cv-00151-jgm Document 4 Filed 06/07/05 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF VERMONT

U. S. DISTRICT COURl
DISTRICT OF "~RiVlQNT
f.h I FILED
BY ID'I'S
DEPUTY CLERK

)

Gordon Bock,

)

Plaintiff

)

v.

) CIVIL RIGHTS

Steven Gold,

) COMPLAINT

Janice Ryan,

) PURSUANT TO

Susan Blair,

) 42 U.S.C. 1983 AND THE

David Turner and

) RELIGIOUS LAND

Stuart Gladding,

.,,,}.,,',,.... USE·~AND

all employed by the ) INSTITUTIONALIZED

Vermont Department ) PERSONS ACT

of Corrections,

) (R.L.U.I.P.A.),

and each acting in

) 42 U.S.C. 2000bb et seq.

official and individual .)

capacity,

)

Civil Case No. I ~ 05- C-V.... ISI

Defendants

)

Plain~iff in the above-captioned action alleges as follows:

JURISDICTION

1. This is a civil action seeking relief and damages te·oefend and

protect the rights guaranteed by 'the Constitution of the' United States.

This action is brought pursuant to 42 U.S.C. 1983 and42 U.S.C.

2000bb et seq.. The Court has jurisdiction over this action pursuant

to 28 U.S.C. 1331, 28 U.S.C. 1343(3), 28 U.S.C. 1343(4) and 28

U.S.C. 2 2 0 1 . '

,

PARTIES:

2. Plaintiff Gordon Bock, Post:Office Box No. 484, Montpelier, VT 05601-0484

3. Defendant a) Steven Gold, Commissioner, Department of Corrections (hereinafter "D.O.C."), State of Vermont, 103 South Main Street, Waterbury VT 05671-1001

, .

Case 1:05-cv-00151-jgm Document 4 Filed 06/07/05 Page 2 of 4

bock v. 20ld et alia. sec. 1983 and rluipa. pa2e two of four
Defendant b) Janice Ryan, Deputy Commissioner, D.O.C., 103 South Main Street, Waterbury, VT 05671-1001
Defendant c) Susan Blair, D.O.C. Superintendent, Northwest State Correctional Facility, Swanton, VT 05488
Defendant, d) David Turner, D.O.C. Casework Supervisor/Superintendent's Designee, Northwest State Correctional Facility, Swanton, VT 05488
Defendant e) Stuart Gladding, D.O.C. Superintendent, Northern State Correctional Facility, Newport, VT 05855
PLACE OF-PRESENT "CONFINEMENT
4. a. There is a prisoner grievance procedure in place at all three facilities where the Vermont D.O.C. placed Plaintiff in confinement, 2004-2005.
b. Plaintiff throughly presented all pertinent facts to theD.O.C. and thoroughly exhausted every avenue of D.O.C. administrative grievance procedures, all to no avail'inasmuch as Defendants continued to violate repeatedly Plaintiffs First Amendment right to practice his religion, which is Judaism.
c. In addition to exhausting every possible avenue in the D.O.C. grievance procedure~ Plaintiff wrote numerous times to the Commissioner, the Deputy Commissioner and the other coDefendants, all to no avail. '
d.Plaintiff presented to each and every one of the Defendants his concerns 'about the continued'violations of Plaintiffs First Amendment right to practice his religion, and none of the Defendants took affirmative action.
PREVIOUS LAWSUITS
5. Having thoroughly exhausted all,D.O.C. administrative grievance procedures over six months for a slew of anti-Semitic episodes
directed against him at the st. Albans facility, Plaintiff upon
learning of an ongoing scheme by three fellow inmates to enlist a fourth inmate to seize his yarmulke (Jewish skullcap), defecate in it and sneak it back into Plaintiffs cell did file a

. ,

Case 1:05-cv-00151-jgm Document 4 Filed 06/07/05 Page 3 of 4

bock v. Kold et alia. sec. 1983 and rluipa. paKe three of four
request for a hate-crime injunction* under Title 13 of the Vermont Statutes.
FACTS
6. Plaintiff alleges that the named Defendants did for the duration of his seven months of imprisonment from 2004 to 2005 repeatedly violate the D.O.C.'s own policies on religious practice in its institutions whilst depriving Plaintiff of the opportunity to practice the Jewish religion through minor requested accommodations, to wit: a) Steven Gold had ultimate '-autli:t5t'ity"tti"'apP1t)Ve-mihof requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order. b) Janice Ryan had authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order. c) Susan Blair had authority to ·approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose' not to so order. d) David Tumerhad authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and inste'act; chose not to so order. e) Stuart Gladding had authority to approve minor requested accommodations in furtherance of affording Plaintiff the opportunity to practice his religion, and instead chose not to so order.
7.
CAUSES OF ACTION
NUMEROUS VIOLATIONS OF 42tJ.S.C. 1983 through repeated and flagrant failure to act in furtherance of Plaintiffs constitutionally guaranteed civil rights under Amendment I of the United States Constitution by ignoring Plaintiffs numerous requests for minor accommodations in furtherance ofhis goal to observe the Jewish religion in a meaningful manner without jeopardizing security or disrupting facility operations.
* (Cf., although.the specific incident is more ancillary than integralto the instant action, inasmuch as it
does not signify the D.O.C.'s obstinate blockage ofPlaintiffs'Pirst Amendment right to practice his religion, Bock v. Hofmann et alia. Washington County Superior Court, Docket No. 181-3-04 WnCv, J. Katz presiding.)

· .

Case 1:05-cv-00151-jgm Document 4 Filed 06/07/05 Page 4 of 4

bock v. I:old et alia. sec. 1983 and rluipa. last of four pal:es
NUMEROUS VIOLATIONS OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT (R.L.U.I.P.A.), 42 U.S.C. 2000bb et seq., by ignoring Plaintiffs numerous requests for minor accommodations in furtherance of his goal to observe the Jewish religion in a meaningful manner without jeopardizing security or disrupting facility operations.
8. Plaintiff demands a trial by jury.
PRAYER FOR RELIEF
WHEREFORE, PLAINTIFF PRAYS for this Court to grant the following relief: • Accept jurisdiction in this matter; • Allow Plaintiff to proceed "in forma pauperis," and to transmit to
Plaintiff the appropriate forms for same; • Allow Plaintiff leave to amend; • Issue injunctive relief barring D.O.C. from further denying or
limiting Plaintiffs exercise of his religion, Iudaism,as such denials or limits will likely continpe ~s a means of coercion and retribution whilst Plaintiff remains supervised by Barre CCSC, especially to punishPlilintiff for having brought suit; • Award Plaintiff both compensatory and punitive damages as the Jury may decide; • Schedule a preliminary hearing in this matter; • Order other such other relief as the Court deems just and proper.
I DECLARE under penalty of perjury that the foregoing is true and correct on this the 11 th day of May 2005 at Northfield, Vermont:

copy to: D.O.C. legal division, Waterbury, VT

 
 CLOSED, ENE3, ENEF
U.S. District Court District of Vermont (Brattleboro) CIVIL DOCKET FOR CASE #: 1:05−cv−00151−jgm

Bock v. Gold et al Assigned to: Judge J. Garvan Murtha Cause: 42:1983 Prisoner Civil Rights
Plaintiff Gordon Bock

Date Filed: 06/03/2005 Date Terminated: 03/21/2008 Jury Demand: Plaintiff Nature of Suit: 555 Habeas Corpus (Prison Condition) Jurisdiction: Federal Question
represented by Aaron H. Hauptman 575 Grand Street Suite No. E−501 New York, NY 10002 (917) 613−9429 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry Kade Barry Kade, Attorney at Law P.O. Box 55 Montgomery, VT 05470−0055 (802) 933−2490 Email: kadeb@sover.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Steven Gold Commissioner, Department of Correctiosn TERMINATED: 02/07/2008
Defendant Janice Ryan Deputy Commissioner, Department of Corrections TERMINATED: 02/07/2008
Defendant Susan Blair Department of Corrections, Superintendent
Defendant David Turner Department of Corrections, Caseworker
Defendant

represented by Kurt A. Kuehl Vermont Attorney General's Office 103 South Main Street Waterbury, VT 05671−0701 (802) 241−2288 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kurt A. Kuehl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kurt A. Kuehl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kurt A. Kuehl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Gladding Department of Corrections, Superintendent
ENE Evaluator ENE Evaluator TERMINATED: 03/20/2008

represented by Kurt A. Kuehl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard T. Cassidy Hoff Curtis 100 Main Street P.O. Box 1124 Burlington, VT 05402−1124 (802) 864−6400 Fax: (802) 860−1565 Email: rcassidy@hoffcurtis.com TERMINATED: 03/20/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/03/2005
06/03/2005 06/07/2005 06/07/2005
08/02/2005 08/02/2005 08/02/2005 08/02/2005 08/02/2005 08/05/2005 08/08/2005 09/08/2005
09/19/2005
09/21/2005

# Docket Text
1 MOTION for Leave to Proceed in forma pauperis by Gordon Bock. Responses due by 6/17/2005. Note: 3 additional days will be allowed for mailing in accordance with L.R. 6.1. (Attachments: # Complaint)(jlh, ) Additional attachment(s) added on 6/6/2005 (jse, ). (Entered: 06/03/2005)
2 AFFIDAVIT of Gordon Bock in re: 1 MOTION for Leave to Proceed in forma pauperis by Gordon Bock. (jlh, ) (Entered: 06/03/2005)
3 ORDER granting 1 Motion for Leave to Proceed in forma pauperis. Signed by Judge Jerome J. Niedermeier on 6/7/2005. (jlh, ) (Entered: 06/08/2005)
4 COMPLAINT against Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding filed by Gordon Bock. Waivers issued. LR 73.1 Form Issued.(jlh, ) (Entered: 06/08/2005)
5 RETURN OF SERVICE Executed. Steven Gold served on 7/29/2005, answer due 8/18/2005. (jlh, ) (Entered: 08/02/2005)
6 RETURN OF SERVICE Executed. Susan Blair served on 7/29/2005, answer due 8/18/2005. (jlh, ) (Entered: 08/02/2005)
7 RETURN OF SERVICE Executed. Janice Ryan served on 7/29/2005, answer due 8/18/2005. (jlh, ) (Entered: 08/02/2005)
8 RETURN OF SERVICE Executed. Stuart Gladding served on 7/29/2005, answer due 8/18/2005. (jlh, ) (Entered: 08/02/2005)
9 RETURN OF SERVICE Executed. David Turner served on 7/29/2005, answer due 8/18/2005. (jlh, ) (Entered: 08/02/2005)
10 ANSWER to Complaint by Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding.(jlh, ) (Entered: 08/05/2005)
11 CERTIFICATE OF SERVICE by Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding in re 10 Answer to Complaint (jlh, ) (Entered: 08/08/2005)
12 ORDER: parties are to comply with Local Rule 26.1(b)(1) within 10 days of the date of this order. Signed by Judge Jerome J. Niedermeier on 9/8/2005. (jlh, ) (Entered: 09/08/2005)
RECEIVED (proposed) Stipulated Discovery Schedule/Order by Gordon Bock, Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding.(law) (Entered: 09/19/2005)
13 STIPULATED DISCOVERY SCHEDULE/ORDER; Discovery due by 4/1/2006. Motions due by 5/1/2006. Early Neutral Evaluation shall be conducted on or before 12/2/2005. Ready for Trial by 6/1/2006. Signed by Judge Jerome J. Niedermeier on

12/30/2005
01/30/2006 01/31/2006 02/14/2006 03/06/2006 04/28/2006
05/16/2006 05/16/2006 05/18/2006 05/24/2006
05/24/2006
05/25/2006 05/26/2006 05/30/2006
06/02/2006 06/02/2006 06/02/2006

9/20/2005. (jlh, ) (Entered: 09/21/2005)
14 AFFIDAVIT of Expert Witness Rabbi Menachem M. Katz by Gordon Bock. Exhibit D (Institutional Handbook of Jewish Practice and Procedure)is a bound book and can not be scanned, original is available and on file at the clerk's office. (jlh, ) Modified on 1/3/2006 (jse, ). Modified on 1/3/2006 (jse, ). (Entered: 12/30/2005)
15 CERTIFICATE OF SERVICE − First Set of Interrogatories and Requests for Production of Documents by Pltf Gordon Bock.(kac, ) (Entered: 01/30/2006)
16 CERTIFICATE OF SERVICE − First Set of Interrogatories and Requests for Production of Documents by Steven Gold.(gmg, ) (Entered: 01/31/2006)
17 Notice of Deposition of Gordon Bock by Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding.(gmg, ) (Entered: 02/14/2006)
18 DISCOVERY CERTIFICATE − First Set of Requests for Admissions by Gordon Bock.(wjf, ) (Entered: 03/06/2006)
19 MOTION for Extension of Time for dfts to file a motion for summary judgment by Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding. Responses due by 5/12/2006. Note: 3 additional days will be allowed for mailing. See 2005 Amendment to Fed. R. Civ. P. 6e, effective Dec. 1, 2005. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(law) (Entered: 04/28/2006)
20 ORDER granting 19 Motion to Extend Time . Signed by Judge Jerome J. Niedermeier on 05/16/06. (This is a text only Order.) (mld) (Entered: 05/16/2006)
Reset Scheduling Order Deadlines: Motions due by 7/1/2006 per Doc 20 (jjj, ) (Entered: 05/16/2006)
21 REPLY to 19 MOTION for Extension of Time for dfts to file a motion for summary judgment filed by Gordon Bock. (law) (Entered: 05/18/2006)
22 AMENDED REPLY to 19 MOTION to Extension of Time for dfts to file a motion for summary judgment filed by Gordon Bock. (Attachments: #(1) attachment 1; #(2) attachment A; #(3) attachment B; #(4) Certificate of Service). Next Entry same image.(gmg, ) (Entered: 05/24/2006)
23 MOTION to Admit Plaintiff's Requests for Admissions, First Set (FRCP 36); MOTION for the Court to Quash Subpoena of Plaintiff's Counseling Records under FRE 403 and FRCP 26(b)(1). Responses due by 6/8/2006. Note: 3 additional days will be allowed for mailing. See 2005 Amendment to Fed. R. Civ. P. 6e, effective Dec. 1, 2005. (Attachments: #(1) attachment 1; #(2) attachment A; #(3)attachment B; #(4) Certificate of Service). This image same as previous entry.(gmg, ) (Entered: 05/24/2006)
24 LETTER from Gordon Bock stating he agreed to extending deadline to a 5/1/06 extension for defendants to answer plaintiff's requests for admissions. (gmg, ) (Entered: 05/25/2006)
25 DEFENDANT'S OPPOSITION to 23 MOTION to Admit Plaintiff's Requests for Admissions First Set (FRCP 36) filed by Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding. (gmg, ) (Entered: 05/26/2006)
26 OPPOSITION to 23 MOTION to Quash Subpoena of Plaintiff's Counseling Records Under F.R.E. 403 and FRCP 26(b)(1) filed by Steven Gold, Janice Ryan, Susan Blair, David Turner. (Attachments: # 1 Exhibit A part 1 of 3# 2 Exhibit A part 2 of 3# 3 Exhibit B part 3 of 3)(gmg, ) Modified on 5/31/2006 (jse, ). (Entered: 05/30/2006)
27 CERTIFICATE OF SERVICE − Answers to Requests for Admissions, First Set by David Turner.(gmg, ) (Entered: 06/02/2006)
28 CERTIFICATE OF SERVICE − Answers to Requests for Admissions, First Set by Janice Ryan.(gmg, ) (Entered: 06/02/2006)
29 CERTIFICATE OF SERVICE − Answers to Requests for Admissions, First Set by Stuart Gladding.(gmg, ) (Entered: 06/02/2006)

06/02/2006 06/02/2006 06/13/2006
06/29/2006 07/21/2006
07/21/2006 08/04/2006 08/10/2006 08/10/2006
08/10/2006 08/11/2006 10/02/2006 10/02/2006 10/09/2006 10/10/2006 10/11/2006 10/11/2006 10/11/2006

30 CERTIFICATE OF SERVICE − Answers to Requests for Admissions, First Set by Susan Blair.(gmg, ) (Entered: 06/02/2006)
31 CERTIFICATE OF SERVICE − Answers to Requests for Admissions, First Set by Steven Gold.(gmg, ) (Entered: 06/02/2006)
32 ORDER denying 23 Bock's motion to admit the items set forth in his request for admissions is DENIED. Bock's motion to quash is also DENIED, subject to reconsideration if Bock informs the defendants and the Court that he is not seeking damages for emotional harm, and that he will not raise the issue of emotional harm at any future stage in this case. Signed by Judge Jerome J. Niedermeier on 6/13/06. (jjj, ) (Entered: 06/13/2006)
33 REPLY to 32 Order denying 23 Bock's motion to admit the items set forth in his request for admissions and denying Motion to Quash, by Gordon Bock. (jlh) (Entered: 06/29/2006)
34 JOINT MOTION to Amend 13 Stipulated Discovery Schedule / Order by Gordon Bock, Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding. (Attachments: # 1 Redlined Discovery Schedule# 2 Proposed Discovery Schedule)(wjf, ) (Entered: 07/21/2006)
35 ORDERED case no longer referred to Magistrate Judge . Signed by Judge Jerome J. Niedermeier on 7/21/2006. Copy provided to non NEF'd parties. (jlh) (Entered: 07/21/2006)
36 STIPULATED DISCOVERY SCHEDULE/ORDER; Discovery due by 8/1/2006. Motions due by 9/1/2006. Ready for Trial by 11/1/2006. Signed by Judge J. Garvan Murtha on 8/4/2006. Cys to counsel.(kak, ) (Entered: 08/04/2006)
37 NOTICE of Appearance by Barry Kade on behalf of Gordon Bock (jlh) (Entered: 08/10/2006)
38 MOTION for Appearance Pro Hac Vice of Aaron H. Hauptman, Esq. by Gordon Bock. Responses due by 8/24/2006. Note: 3 additional days will be allowed for mailing. See 2005 Amendment to Fed. R. Civ. P. 6e, effective Dec. 1, 2005. (jlh) (Entered: 08/10/2006)
39 AFFIDAVIT of Aaron H. Hauptman, Esq. in support of 38 MOTION to Appear Pro Hac Vice. (jlh) (Entered: 08/10/2006)
40 ORDER granting 38 Motion for Admission Pro Hac Vice re: Aaron H. Hauptman, Esq. for plaintiff. Signed by Judge J. Garvan Murtha on 8/11/2006. (This is a text only Order.) (kbl, ) (Entered: 08/11/2006)
41 JOINT MOTION to Amend 36 Stipulated Discovery Schedule / Order by Gordon Bock, Steven Gold, Janice Ryan, Susan Blair, David Turner and Stuart Gladding. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(kak) (Entered: 10/02/2006)
42 RECEIVED (proposed) Stipulated Discovery Schedule/Order by Gordon Bock, Steven Gold, Janice Ryan, Susan Blair, David Turner and Stuart Gladding.(kak) (Entered: 10/02/2006)
43 ORDER granting 41 Joint Motion to Amend Stipulated Discovery Schedule/Order. Signed by Judge J. Garvan Murtha on 10/9/2006. (This is a text only Order.) (kbl, ) (Entered: 10/09/2006)
44 AMENDED STIPULATED DISCOVERY SCHEDULE/ORDER; Motions due by 11/6/2006. Ready for Trial by 1/8/2007. Signed by Judge J. Garvan Murtha on 10/9/2006. Cy to counsel.(wjf) (Entered: 10/10/2006)
45 DISCOVERY CERTIFICATE − Answers to First Set of Interrogatories and Requests for Production of Documents by Stuart Gladding.(wjf) (Entered: 10/11/2006)
46 DISCOVERY CERTIFICATE − Answers to First Set of Interrogatories and Requests for Production of Documents by Susan Blair.(wjf) (Entered: 10/11/2006)
47 DISCOVERY CERTIFICATE − Answers to First Set of Interrogatories and Requests for Production of Documents by Steven Gold.(wjf) (Entered: 10/11/2006)

10/11/2006 10/11/2006 11/06/2006 11/27/2006 12/13/2006 01/04/2007 01/05/2007 02/01/2007
02/01/2007 02/28/2007 02/28/2007
03/27/2007 03/28/2007 04/26/2007 05/03/2007

48 DISCOVERY CERTIFICATE − Answers to First Set of Interrogatories and Requests for Production of Documents by Janice Ryan.(wjf) (Entered: 10/11/2006)
49 DISCOVERY CERTIFICATE − Answers to First Set of Interrogatories and Requests for Production of Documents by David Turner.(wjf) (Entered: 10/11/2006)
50 MOTION to Extend Time to File Motions for Summary Judgment by Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding.(wjf) (Entered: 11/06/2006)
51 ORDER granting absent objection 50 Dfts' Motion to Enlarge Time to File Motions for Summary Judgment. All motions for summary judgment shall be filed by 1/5/2007. Signed by Judge J. Garvan Murtha on 11/27/2006. (This is a text only Order.) (kbl, ) (Entered: 11/27/2006)
52 MOTION to Compel Responses to First Set of Interrogatories and Requests for Production of Documents by Steven Gold. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(wjf) (Entered: 12/13/2006)
53 MOTION to Enlarge Time to File Motion for Summary Judgment by Steven Gold, Janice Ryan, Susan Blair, David Turner and Stuart Gladding.(kak) (Entered: 01/05/2007)
54 RESPONSE in Opposition re 52 MOTION to Compel filed by Gordon Bock. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Certificate of Service)(Kade, Barry) (Entered: 01/05/2007)
55 ORDER denying as moot 52 Motion to Compel, in view of pltf's recently filed supplemental discovery response appended to 54 Response in Opposition. The motion is denied without prejudice in the event dft finds the responses arguably deficient. Signed by Judge J. Garvan Murtha on 2/1/2007. (This is a text only Order.) (kbl) (Entered: 02/01/2007)
56 ORDER granting 53 Motion to Enlarge Time to File Motion for Summary Judgment. Dfts shall file their motion for summary judgment, if any, on or before 3/1/2007. Signed by Judge J. Garvan Murtha on 2/1/2007. (This is a text only Order.) (kbl, ) (Entered: 02/01/2007)
57 MOTION for Summary Judgment by Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding. (Attachments: # 1 Motion for Summary Judgment (2 of 2))(wjf). (Entered: 03/01/2007)
58 STATEMENT OF UNDISPUTED FACTS by Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding re: 57 MOTION for Summary Judgment. (Attachments: # 1 Exhibit 1 (1 of 2)# 2 Exhibit 1 (2 of 2)# 3 Exhibit 2# 4 Exhibit 3 (1 of 2)# 5 Exhibit 3 (2 of 2)# 6 Exhibit 4# 7 Exhibit 4, Part 1 (1 of 3)# 8 Exhibit 4, Part 1 (2 of 3)# 9 Exhibit 4, Part 1 (3 of 3)# 10 Exhibit 4, Part 2 (1 of 4)# 11 Exhibit 4, Part 2 (2 of 4)# 12 Exhibit 4, Part 2 (3 of 4)# 13 Exhibit 4, Part 2 (4 of 4)# 14 Exhibit 5# 15 Exhibit 6# 16 Exhibit 7# 17 Exhibit 8# 18 Exhibit 9 (1 of 2)# 19 Exhibit 9 (2 of 2))(wjf, ) (Entered: 03/01/2007)
59 STIPULATED MOTION for Extension of Time to File Response re 57 MOTION for Summary Judgment by Gordon Bock. (Attachments: # 1 Certificate of Service# 2 Text of Proposed Order)(Kade, Barry) (Entered: 03/27/2007)
60 ORDER granting 59 Motion for Extension of Time to File Response re 57 MOTION for Summary Judgment. Plaintiff's response shall be filed on or before 4/26/2007. Signed by Judge J. Garvan Murtha on 3/28/2007. (This is a text only Order.) (kbl, ) (Entered: 03/28/2007)
RECEIVED Stipulation re: Additional Time to Respond to 57 Motion for Summary Judgment by Gordon Bock, Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding. (law) (Entered: 04/26/2007)
61 STIPULATION AND ORDER to Extend Time to 5/15/2007 to respond to Defts' 57 Motion for Summary Judgment. Signed by Judge J. Garvan Murtha on 05/3/2007. (wjf) (Entered: 05/03/2007)

05/15/2007 05/17/2007 05/22/2007 05/24/2007 05/31/2007
06/01/2007 06/01/2007 06/01/2007 08/07/2007 08/24/2007 09/05/2007 09/05/2007 09/06/2007 09/13/2007 10/10/2007
10/10/2007

62 STIPULATED MOTION for Extension of Time to File Response to 57 MOTION for Summary Judgment by Gordon Bock, Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding.(Kade, Barry) Filers added 5/15/2007. (jmm) (Entered: 05/15/2007)
63 ORDER granting 62 Stipulated Motion for Extension of Time to File Response/Reply re 57 MOTION for Summary Judgment. Pltf's response shall be filed by 5/22/2007. Signed by Judge J. Garvan Murtha on 5/17/2007. (This is a text only Order.) (kbl, ) (Entered: 05/17/2007)
64 STIPULATED MOTION for Extension of Time to 5/31/2007 to File Response to 57 MOTION for Summary Judgment by Gordon Bock, Steven Gold, Janice Ryan, Susan Blair, David Turner, Stuart Gladding.(Kade, Barry) Text clarified, filers added 5/23/2007. (jmm) (Entered: 05/22/2007)
65 ORDER granting 64 Stipulated Motion to Extend Time to Respond re 57 MOTION for Summary Judgment. Pltf's response shall be filed on or before 5/31/2007. No further extensions will be granted. Signed by Judge J. Garvan Murtha on 5/24/2007. (This is a text only Order.) (kbl, ) (Entered: 05/24/2007)
66 RESPONSE in Opposition to 57 MOTION for Summary Judgment filed by Gordon Bock. (Attachments: # 1 Statement of Additional Undisputed Facts# 2 Gold Admissions# 3 DOC Policy 380# 4 Plaintiff's Affidavit# 5 Blair Admissions# 6 Braasch Affidavit# 7 Defendants' Request to Produce# 8 Katz Affidavit# 9 Aleph Inst letter# 10 Statement of Facts # 11 Plaintiff's Exhibit 8#)(Kade, Barry) Text clarified, attachments 10 and 11 added 6/1/2007. (jmm) (Entered: 05/31/2007)
67 *** This entry was e−filed erroneously and has been removed. The image, Statement of Facts, is now attached to 66 . (6/1/2007) (jmm) (Entered: 06/01/2007)
68 *** This entry was e−filed erroneously and has been removed. The image, Plaintiff's Exhibit 8, is now attached to 66 . (6/1/2007) (jmm) (Entered: 06/01/2007)
69 CERTIFICATE OF SERVICE by Gordon Bock re 66 Response to Motion for Summary Judgment, (Kade, Barry) (Entered: 06/01/2007)
70 ORDER REFERRING CASE to Magistrate Judge Jerome J. Niedermeier. Signed by Judge J. Garvan Murtha on 08/07/2007. (wjf) (Entered: 08/07/2007)
71 NOTICE of Hearing on Motion 57 Motion for Summary Judgment : Motion Hearing set for 9/5/2007 10:00 AM in Burlington Courtroom 440 before Hon. Jerome J. Niedermeier. (jjj) (Entered: 08/24/2007)
72 CONSENTED−TO MOTION to Continue Hearing re: 57 Motion for Summary Judgment by Gordon Bock. (Attachments: # 1 Stipulation)(Kade, Barry) (Text clarified 9/6/2007)(jmm) (Entered: 09/05/2007)
73 CERTIFICATE OF SERVICE re: 72 MOTION to Continue Hearing re: 57 Motion for Summary Judgment by Gordon Bock. (Kade, Barry) (Text clarified, links added 9/6/2007)(jmm) (Entered: 09/05/2007)
74 ORDER granting 72 Consented to Motion to Continue Hearing. Signed by Judge Jerome J. Niedermeier on 09/06/07. (This is a text only Order.) (mld) (Entered: 09/06/2007)
75 NOTICE of Hearing on Motion 57 Motion for Summary Judgment. Motion Hearing set for 10/10/2007 10:00 AM in Burlington Courtroom 440 before Hon. Jerome J. Niedermeier. (jjj) (Entered: 09/13/2007)
76 MINUTE ENTRY for proceedings held before Judge Jerome J. Niedermeier. Motion Hearing held on 10/10/2007 re 57 Motion for Summary Judgment filed by Steven Gold, Janice Ryan, Stuart Gladding, Susan Blair, David Turner. Aaron Hauptman, Esq. and Barry Kade, Esq. present for pltf; Kurt Kuehl, Esq. present for defts. ORDERED: Motion taken under advisement. (Court Reporter: taped) (jjj) (Entered: 10/15/2007)
Motions Taken Under Advisement: 57 Motion for Summary Judgment (jjj) (Entered: 10/15/2007)

11/28/2007
12/10/2007 12/13/2007 02/07/2008
02/21/2008 02/21/2008 03/14/2008 03/20/2008 03/21/2008 03/21/2008

77 REPORT AND RECOMMENDATION recommending that the Defendants' 57 Motion for Summary Judgment be GRANTED IN PART and DENIED IN PART. It is recommended that all of Bock's claims against defendants Gold and Ryan be DISMISSED, that all of Bock's claims under RLUIPA be DISMISSED, that all of Bock's claims against the defendants in their official capacities be DISMISSED, and that Bock's claim for injunctive relief be DISMISSED. Objections to RRdue by 12/17/2007. Signed by Judge Jerome J. Niedermeier on 11/28/2007. (jlh) (Entered: 11/28/2007)
78 OBJECTION by Gordon Bock to 77 Report and Recommendation re: 57 Motion for Summary Judgment. (Kade, Barry) (Entered: 12/10/2007)
79 ERRATA by Gordon Bock re: 78 Objection to Report and Recommendation re: 57 Motion for Summary Judgment. (Kade, Barry) (Entered: 12/13/2007)
80 RULING AFFIRMING, APPROVING and ADOPTING MAGISTRATE JUDGE'S 77 REPORT AND RECOMMENDATION: Dfts' 57 Motion for Summary Judgment is GRANTED in part and DENIED in part. Pltf's claim for injunctive relief is DISMISSED as moot. Pltf's claims under 42 U.S.C § 1983 against dfts in their official capacities are DISMISSED. All of pltf's claims against dfts Gold and Ryan are DISMISSED. All of pltf's claims under RLUIPA are DISMISSED. The parties shall select an ENE evaluator and arrange an ENE session to be conducted not later than 4/1/2008. They shall inform the Court, in writing, on or before 2/22/2008, of the name of the evaluator and the date of the ENE session. This case shall be ready for trial on 5/1/2008. Signed by Judge J. Garvan Murtha 2/7/2008. (kak) (Entered: 02/07/2008)
81 ENE Evaluator Selection Response by Gordon Bock(Kade, Barry) (Entered: 02/21/2008)
82 ENE Evaluator Richard T. Cassidy assigned. Early Neutral Evaluation set for 3/19/2008 at 09:00 AM.(law) (Entered: 02/21/2008)
83 ORDER: The matters referred to Judge Niedermeier, having been disposed of, this matter is returned to Judge Murtha for placement on the trial calendar after May 1, 2008. Signed by Judge Jerome J. Niedermeier on 3/13/2008. (jlh) (Entered: 03/14/2008)
84 REPORT of Early Neutral Evaluation by ENE Evaluator: full settlement. (Cassidy, Richard) Modified on 3/21/2008 (jmm). (Entered: 03/20/2008)
85 ORDER OF DISMISSAL: This action is hereby dismissed without costs, with the right to petition to reopen the action, upon good cause shown within 60 days, if settlement is not consummated. Signed by Judge J. Garvan Murtha on 3/21/2008. (kak) (Entered: 03/21/2008)
86 STIPULATION of Dismissal with Prejudice by Gordon Bock, Susan Blair, David Turner, Stuart Gladding. (wjf) (Entered: 03/21/2008)