Plaintiff is currently confined in a New York State 1

correctional facility. 

Plaintiff invokes the Equal Protection Clause as a basis 2

for relief. Defendants do not explicitly address this alternative

ground in their motion. But see pp. 12-14, infra (discussing 42

U.S.C. § 1985).

1

0UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------x

MICHAEL WALES,

 :

 Plaintiff, REPORT & RECOMMENDATION

 :

 -against- 06 Civ. 13684 (GEL)(MHD)

 :

THE CITY OF NEW YORK, et al.,

 :

 Defendants.

-------------------------------x 

TO THE HONORABLE GERARD E. LYNCH, U.S.D.J.:

Plaintiff Michael Wales is a former inmate in the Robert N.

Davoren Center (“RNDC”) at the Rikers Island prison complex. He 1

has filed this pro se lawsuit, under 42 U.S.C. §§ 1983 and 1985,

against the City of New York and six officials of the Department of

Correction (“DOC”), contending that defendants denied him a proper

Halal diet, as required by the tenets of his Muslim faith, and in

doing so deprived him of his First and Fourteenth Amendment right

to the free exercise of his religion.2

The individual defendants include the Head Cook and Supervisor

of Food Services (identified as Brathwaite), the Correction Captain

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 1 of 17
2

of Food Services (identified as Maxwell), the Chief of the facility

(identified as Thomas), DOC Commissioner Martin Horn, Warden Fidel

Gonzales and Grievance Coordinator James Robinson. They and the

City have moved to dismiss the complaint in its entirety on a

variety of grounds. They contend that plaintiff fails to state a

claim because the complaint demonstrates that he did not exhaust

his prison grievance remedies, as required by the Prison Litigation

Reform Act, 42 U.S.C. § 1997e(a); that plaintiff lacks standing to

assert his claims; that his complaint is defective because he does

not allege the personal responsibility of the individual defendants

for the wrongs about which he complains; that the individual

defendants are entitled to a qualified-immunity defense; and that

plaintiff fails to state a claim under 42 U.S.C. § 1985.

A. The Plaintiff’s Complaint

This lawsuit is one of more than twenty cases filed more or

less contemporaneously by current or former Muslim inmates at the

Rikers Island prison facilities. Those other inmates all complain

about the handling of food and related items at the prison dining

facilities and commissaries. In substance they all assert that the

New York City Department of Correction (“DOC”) has failed to

provide them with meals that comply with the Halal requirements of

their faith, and have thereby denied them the free exercise of

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 2 of 17
Unlike the other plaintiffs, Wales does not complain that 3

defendants failed to post a list of pork products at the prison

commissary. 

3

their religion, in violation of their First and Fourteenth

Amendment rights.

These lawsuits were originally filed pro se, and hence their

factual allegations lacked precision, although, fairly construed,

it was apparent that they were all complaining of essentially the

same practices. In the case of Mr. Wales, his allegations are

notably abbreviated, but seem consistent with the claims of the

other inmate plaintiffs in targeting certain practices in the

prison dining facility. Thus, he states that he “requested to be

provide[d] with a[] [d]iet that is [c]onsistent with my religious

[s]cr[u]ples[,] [a] NON-CROSS -CONTAMINATED/NON PORK DIET, which I

wasn’t.” (Compl. ¶ II(D)). He refers to the failure of the prison

to serve Halal meals on disposable trays, as required by a DOC

directive for both Halal and Kosher meals, and asserts that “there

is no way NYC DOC [] [c]an [c]laim that they are provid[ing] . . .

a[] Halal Meal if the [t]rays [w]e are eating from [a]re

contam[i]nated [or] [c]ross-[c]ontaminated with [p]ork.” (Id.). In

addition, he appears to say that the dining facility serves meat

from pots and pans marked Halal even though the meat is in fact not

Halal. (Id. at attached page). 

3

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 3 of 17
Indeed, we note that among the eyewitnesses identified by 4

plaintiff is Michael Donnel Wesley, who is also a plaintiff in

one of the parallel cases. (See Compl. at ¶ II(D)).

4

Wales further states that he filed a grievance with the prison

concerning the failure to serve proper Halal meals, and that he

received no response. He represents that he then pursued the matter

by sending letters to the Warden, the Commissioner, the various

levels of DOC grievance review (including the Inmate Grievance

Review Committee (“IGRC”) and the Central Office Review Committee

(“CORC”)), as well as to defendants Captain Maxwell, Head Cook and

Food Services Supervisor Brathwaite, and Grievance Coordinator

Robinson. According to plaintiff, he again received no response to

his written complaints. (Id. at ¶¶ IV(E)-(I)).

 

We read plaintiff’s allegations liberally in deference to his

pro se status, e.g., Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.

2006); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994), as

well as because defendants seek dismissal under Rule 12(b)(6).

E.g., Achtman v. Kirby, McInerney & Squire, LLC, 464 F.3d 328, 337

(2d Cir. 2006). We infer that he is asserting the same claims, and

in substance making the same allegations, as the more

articulate pro se plaintiffs concerning practices in this Rikers

dining facility. Moreover, we read his pleading in light of the 4

far more specific allegations made by the one plaintiff among this

group who subsequently obtained representation by pro bono counsel

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 4 of 17
According to the Wesley complaint, the DOC dining 5

facilities color-code the trays, with one color designating trays

for Halal food and another for non-Halal food. Wesley, 2008 WL

123812 at *1. This separation is apparently done to avoid what

would otherwise be possible contamination of the Halal food if it

were placed on trays that have previously been used to carry nonHalal food. The color-coding also identifies to serving personnel

whether the inmate wants Halal food. 

Wesley, and the other inmate plaintiffs -- though not Wales 6

-- also complain that the Rikers prison commissaries sell both

Halal and non-Halal food products without identifying which

products are in fact non-Halal, a failing that, according to

Wesley, leads to Muslim inmates unknowingly purchasing non-Halal

food products at the commissary and then placing those foods on

the dining hall food trays that are reserved for Halal foods,

thereby contaminating those trays for those inmates and for all

subsequent observant inmates who use the same trays. Wesley, 2008

WL 23812 at *1, 5. 

5

-- a set of allegations that are described in Wesley v. Muhammad,

2008 WL 123812 (S.D.N.Y. Jan. 10, 2008).

As explained in Wesley, the principal claims in these cases

concern the alleged failure of the prison facilities to adhere to

Islamic religious tenets in food preparation and cleanup. These

failings, which assertedly also violate a DOC directive, involve

stacking and washing together trays that are used to serve Halal

and non-Halal meals, thereby contaminating the trays reserved for

Halal food ; washing trays with soap that contains pork by- 5

products; use of cooking ingredients with pork by-products; and

failure to cook Halal meats thoroughly, as required by Halal rules.

Id. at *1, 11. See also Randolph v. City of New York Dep’t of

Correction, 2007 WL 2660282, *2 (S.D.N.Y. Sept. 7, 2007).6

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 5 of 17
As is the case in the parallel lawsuits by other Rikers 7

Island inmates, the only evidence proffered by defendants is a

copy of the DOC regulations that govern the procedures for filing

and pursuing inmate grievances. (See Decl. of Asst. Corp. Counsel

Kimberly Conway, executed May 11, 2007 at Ex. A). 

6

As for the role of the individual defendants in this case,

plaintiff does not explicitly allege that these defendants directed

the use of these practices, but he does allege in his complaint

that he informed all of the defendants of the problems he specifies

in his pleading, and that they ignored his complaints. (Compl. ¶

IV(G)(1)). He also asserts that the grievance coordinator was

included as a defendant because he refused to file plaintiff’s

grievance and refused to respond further to plaintiff. (Id. ¶ II(D)

at attached page).

B. Defendants’ Motion

Defendants press five grounds for dismissal of the complaint,

all predicated on what defendants contend are fatal deficiencies in

that pleading. First, they assert that the complaint fails to 7

state a claim because its allegations reflect that plaintiff did

not exhaust his prison grievance remedies. Second, they argue that

plaintiff lacks standing to assert his claims. Third, they claim

the his complaint does not adequately allege the personal

participation of defendant Chief Thomas in the wrongdoing about

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 6 of 17
Defendants here are represented by the same counsel as in 8

the other cases.

7

which he is complaining. Fourth, they assert that they are all

protected from liability by a qualified-immunity defense. Fifth,

they urge that the allegations of the complaint do not state a

claim under 42 U.S.C. § 1985. 

Plaintiff has not responded to defendants’ motion. 

ANALYSIS

We address defendants’ arguments in the order in which they

make them. Because most of these arguments repeat in large measure

the analysis that these and other defendants have made in a number

of previously decided dismissal motions in parallel Rikers Island

cases, we will shorten our discussion, incorporating by reference 8

or citation the assessments that we have made of these arguments in

the earlier decisions.

A. Exhaustion

In plaintiff’s complaint he alleges that he attempted to

utilize the prison grievance system to air the claims that he makes

here. He also says that the grievance coordinator refused to file

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 7 of 17
8

the grievance, and that he never received a response to it. He

further alleges that he followed up with letters to the IGRC, the

CORC, the Head Cook and Supervisor of Food Services, the Correction

Captain of Food Services, the warden of the facility and the DOC

Commissioner, apparently reiterating his complaints to each of

them, and that none ever responded to him. These allegations are

consistent with the assertions of the plaintiffs in the parallel

cases whose exhaustion status has also been challenged by

defendants and adjudicated by this court.

The short answer to defendants’ exhaustion argument, as we

have previously observed, is that a plaintiff is not obliged to

allege his compliance with the exhaustion requirements of the

Prison Litigation Reform Act, and that it is the defendants’ burden

both to plead this affirmative defense and to prove its

applicability. The somewhat longer answer is that in any event (a)

the allegations in Wales’s complaint to which defendants seem to

point as the basis for their argument do not clearly demonstrate

that plaintiff failed to comply with the exhaustion requirement,

and (b) if he complied incompletely, the complaint does not

preclude the application of one or more of the exceptions to

complete exhaustion recognized by the Second Circuit (if, for

example, corrections personnel prevented or interfered with an

inmate’s efforts to exhaust his remedies or simply ignored his

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 8 of 17
9

grievance). See, e.g., Abney v. McGinnis, 380 F.3d 663, 667 (2d

Cir. 2004). For further details of this analysis, we incorporate by

reference our discussion of these issues found in Wesley v.

Muhammad, 2008 WL 123812 at *3-4; Randolph v. City of New York

Dep’t of Correction, 2007 WL 2660282 at *4-9; and Robinson v. New

York City Dep’t of Correction, 06 Civ. 945 (GEL), Report &

Recommendation at 5-17 (S.D.N.Y. March 6, 2007).

B. Plaintiff’s Standing

Defendants next argue that plaintiff lacks standing to assert

his claims. The stated basis for this argument is defendants’

contention that plaintiff fails to allege “that he sustained a

personal injury.” (Def.’s Mem. of Law at 12). This argument is

truly mystifying. Plaintiff alleges that the defendants do not

serve proper Halal meals because of contamination of the food by

virtue of kitchen practices concerning the trays as well as the

service of non-Halal meats labeled as Halal. These allegations

obviously suffice to allege that plaintiff has been denied the

ability to eat proper Halal meals, which is a right guaranteed to

him under the First Amendment. See, e.g., Cruz v. Beto, 405 U.S.

319, 322 (1972); McEachin v. McGuinnis, 357 F.3d 197, 203 (2d Cir.

2003); Ford v. McGuinnis, 352 F.3d 582, 597 (2d Cir. 2003);

Benjamin v. Coughlin, 905 F.2d 571, 579 (2d Cir. 1990); Kahane v.

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 9 of 17
10

Carlson, 527 F.2d 492, 495-96 (2d Cir. 1975)). 

C. The Involvement of Defendant Chief Thomas

Defendants’ third argument focuses on only one of their

number, Facility Chief Thomas. They argue that the complaint fails

to allege his personal participation in the wrongdoing about which

Wales is complaining.

As we have noted in earlier decisions, a plaintiff is required

to plead and prove the involvement of each individually named

defendant in the constitutional torts for which he seeks relief.

See, e.g., Randolph, 2007 WL 2660282, at *10 (citing inter alia

Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007); Hendricks v.

Coughlin, 114 F.3d 390, 394 (2d Cir. 1997)). As for Chief Thomas,

although plaintiff does not state that he wrote him a letter, he

does state that he informed him of his grievance. (Compl. ¶

IV(G)(1)). In addition, he alleges that all of the defendants,

including Chief Thomas, “[r]efuse[d] to serve [m]e [m]y [m]eal[]s

on the disposa[ble] [t]rays[.] Their [p]olicy and [p]ractice of

serving [m]e [m]y Halal [m]eal[]s on [pre]wash[ed] [p]lastic

[t]rays is a[] [v]iolation [of] my First Amendment [rights], and

[m]y [r]eligious [d]ietary [l]aws.“ (Compl. ¶ II(D)). In view of

plaintiff’s pro se status, we must read these allegations with some

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 10 of 17
11

liberality, and they may fairly be interpreted as asserting that

Chief Thomas was personally involved in the determination not to

use disposable trays, which would presumably have obviated at least

the contamination problems implicated in the washing of trays

reserved for Halal meals. Under the circumstances, and given the

fairly minimal requirements of Fed. R. Civ. P. 8(a), see, e.g.,

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-15 (2002); Kassner

v. 2 Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007), nd

we conclude that the complaint adequately alleges the personal

responsibility of Chief Thomas for the wrongdoing at issue in this

case.

D. Immunity 

Defendants next seek to invoke a qualified-immunity defense on

behalf of all of the defendants, and in doing so rely solely on the

allegations of the complaint. Having looked to the pleadings in the

parallel Randolph and Wesley cases for clarification as to Wales’s

intended allegations, we conclude that the immunity defense cannot

be invoked based solely on the pleadings. 

The individual defendants all seem to occupy supervisory

positions. As noted in both Randolph and Wesley, settled Supreme

Court and Second Circuit precedent and the defendants’ presumptive

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 11 of 17
The defendants also allude to the existence of the DOC 9

directive mentioned by plaintiff, which lays out various

requirements to comply with Halal rules in preparing and serving

meals, and they seek to argue that the individual defendants

could reasonably have believed that it was not so mandatory as to

trigger a due-process right in Muslim inmates. (Def.’s Mem. of

Law at 16-17). The short answer to this contention is that

plaintiff is not asserting a due-process claim based on that

directive; rather, its principal significance is that it suggests

the knowledge or constructive knowledge by the defendants of the

religious requirements that the prison was required to comply

with under the Free-Exercise Clause of the First Amendment. See

Randolph, 2007 WL 2660282 at *16 n.18.

12

knowledge of Muslim dietary requirements should have made clear to

the Commissioner, the Warden and the other senior prison personnel

that cooking Halal foods with pork-based products, failing to cook

Halal meats thoroughly, stacking and washing Halal and non-Halal

trays together and using pork-based soap to wash Halal trays

violated the religious tenets of Muslim inmates and therefore

violated their right to the free exercise of their religion. See

Randolph, 2007 WL 2660282 at *14-16; Wesley, 2008 WL 123812 at *9-

12.9

E. Section 1985

Defendants’ last challenge is an attack on plaintiff’s

invocation of 42 U.S.C. § 1985 as a basis for relief. This argument

does not seek to challenge his citation of 42 U.S.C. § 1983.

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 12 of 17
13

To state a claim under section 1985(3), which we infer that

plaintiff is seeking to invoke, he must allege “(1) a conspiracy,

(2) for the purpose of depriving any person or class of persons of

equal protection of the laws . . . (3) an act in furtherance of the

conspiracy . . . (4) whereby a person is injured in his person or

property or deprived of a right or privilege of a citizen.” Iqbal,

490 F.3d at 176 (citing United Brotherhood of Carpenters & Joiners

of America, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)). “In

addition, the conspiracy must be motivated by some class-based

animus.” Id. Defendants contend, in an unilluminating one-sentence

argument, that the complaint fails under this standard because

plaintiff does not allege any class-based animus. (Def.’ Mem. of

Law at 17). 

In view of defendants’ narrow-gauged challenge to this claim,

we assume for present purposes that plaintiff satisfies the other

requisites for pleading a section 1985 claim (including the

existence of a conspiracy). As defendants point out, an allegation

that “some racial, or perhaps otherwise class-based, invidiously

discriminatory animus [lay] behind the conspirators’ action” is

required to state a claim under section 1985(3). Leblanc-Sternberg

v. Fletcher, 67 F.3d 412, 427 (2d Cir. 1995). Courts in this

circuit have repeatedly held that allegations of religious animus

satisfy that requirement. Iqbal, 490 F.3d at 177; LeblancCase 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 13 of 17
Other jurisdictions have held otherwise. E.g., World of 10

Faith Word Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 124

(5 Cir. 1996); Kinniburgh v. Burlington N. R.R. Co., 568 F. th

Supp. 655, 656-57 (D. Mont. 1983). 

 Plaintiff’s claim may, however, be barred by the 11

application of the intra-corporate conspiracy doctrine, which

holds that “two or more employees of a corporate entity are

generally legally incapable of conspiring with each other with

respect to matters within the scope of their employment[.]” Scott

v. Goord, 2004 WL 2403853 at *13 (S.D.N.Y. Oct. 27, 2004); see

also Malone v. City of N.Y., 2006 WL 2524197 at *11 (E.D.N.Y.

Aug. 30, 2006). Since defendants do not raise that doctrine, we

decline to decide its applicability at this juncture. 

14

Sternberg, 67 F.3d at 427; Jews for Jesus, Inc. v. Jewish Cmty.

Relations Council of N.Y., Inc., 968 F.2d 286, 291 (2d Cir. 1992).10

As for whether plaintiff pleads such animus, we again revert to the

point that he is an untutored pro se litigant whose allegations

must be read with some flexibility. In any event he points out that

the DOC directive requiring the use of disposable trays extends to

both Halal and Kosher meals, and plaintiffs in a number of the

parallel cases have observed that the prison does comply with that

directive for Jewish inmates. See, e.g., Robinson, 06 Civ. 945

(GEL), R&R at 2, 19, 25. From these allegations of fact, we may

infer that the defendants’ alleged refusal to comply with both the

directive and the Halal requirements that are embodied in it while

obeying it for Jewish inmates may be attributable to animus based

on religion. That should suffice as a matter of pleading to

safeguard plaintiff’s section 1985 claim.11

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 14 of 17
15

CONCLUSION

For the reasons noted, we recommend that defendants’ motion to

dismiss the complaint be denied.

Pursuant to Rule 72 of the Federal Rules of Civil Procedure,

the parties shall have ten (10) days from this date to file written

objections to this Report and Recommendation. Such objections shall

be filed with the Clerk of the Court and served on all adversaries,

with extra copies to be delivered to the chambers of the Honorable

Gerard E. Lynch, Room 910, and to the chambers of the undersigned,

Room 1670, 500 Pearl Street, New York, New York 10007. Failure to

file timely objections may constitute a waiver of those objections

both in the District Court and on later appeal to the United States

Court of Appeals. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72,

6(a), 6(e); Thomas v. Arn, 470 U.S. 140, 150-52 (1985); DeLeon v.

Strack, 234 F.3d 84, 86 (2d Cir. 2000) (citing Small v. Sec’y of

Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)).

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 15 of 17
16

Case 1:06-cv-13684-GEL-MHD Document 17 Filed 02/25/2008 Page 16 of 17