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Drug abuse liability
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Drug abuse liability is the degree to which a psychoactive drug has properties that facilitate people abusing it, becoming addicted or dependent on it. This may be because of their pharmacological and psychopharmacological properties or ritualist social aspects around their self administration. Highly addictive drugs have high drug abuse liability.
The addictive potency of drugs varies from substance to substance. Drugs such as codeine or alcohol, for instance, typically require many more exposures to addict their users than drugs such as heroin or cocaine.


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Refund policies for CPR certificationAmerican Academy of CPR and FirstAid, Inc. is currently the CPR certification provider with courses and exams authored by a practicing, board certified physician.
Our courses and certifications are accepted by many institutions and organizations throughout USA. Because our courses and exams are free, you and your organization have full access to view and evaluate the materials before purchasing any certificates.
However, if for any reason your American Academy of CPR and FirstAid, Inc. certification does not fulfill the requirements set forth by your organization, we will issue a full refund when you can confirm denial.
To request a refund, please send an email, fax, or post mail to American Academy of CPR and FirstAid, Inc. within 30 days of payment of your certificate. In your correspondence, please include:
- Your full name
- Email Address
- Mailing address
- Written proof of denial
If you cannot obtain written proof of rejection, please include contact information for the rejecting institution including name, name of the supervisor, phone number, and email address.

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Twelve Job...
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Monday April 9
Here is the listing of Job Fair events across Georgia in the coming days. Click on each link to find out more on a specific event.
Saturday March 30
Reidsville Annual Career/Health 10:00 AM to 1:00...


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BAGHDAD (AP) — The Latest on the battle in Iraq, now entering its fourth week, to retake the city of Mosul from the Islamic State group (all times local): 352 more words
Tags » The World Health Organization
Mommy Milkshare Event Set to Benefit Fabella Milk Bank
It's a well-known fact that breastfeeding is best for babies. The World Health Organization states why it is so on their website, and also emphasizes that breastfeeding benefits the mothers who choose to breastfeed their babies… 354 more words
UN health agency trumpets 'plain packaging' for tobacco
GENEVA (AP) — The UN health agency says "plain packaging" on tobacco products has shown to be an effective complement to health warnings, advertising restrictions, and curbs on misleading packaging to help save lives. 175 more words
Yellow Fever and Zika virus
On Thursday, May 18th The World Health Organization declared an emergency meeting about the Yellow Fever outbreak in Angola, where there has been 293 deaths and 2,267 suspected cases. 210 more words
United Nations Review Claims Monsanto's Glyphosate Not Carcinogenic
'In the ongoing battle over whether or not Monsanto's pesticides are a cancer risk to humans, the United Nations has found that glyphosate, an ingredient in Monsanto's Roundup weed killer, is not a cancer risk to humans. 84 more words
Spanish gold medalist believes she contracted Zika in Rio
SAO PAULO (AP) — Spanish Olympic gold medalist Marina Alabau says she got Zika while training in Brazil in December, suffering painful symptoms in an experience that the wind surfer said won't stop her from competing in the Games in August. 869 more words
Update on Zika virus
Who Owns the Zika Virus?
The World Health Organization (WHO) declared the Zika virus a global health emergency on Monday (February 1) without providing much detail on the disease. 553 more words


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Columbia, SC (July 17, 2007)- PalmettoPride is committed to the eradication of litter and the promotion of beautification in South Carolina. We will accomplish this by leading the effort to motivate and organize groups to clean up existing debris. Our focus is on four essential areas of concern: education, enforcement, awareness and pickup resulting in behavioral change.
PalmettoPride is a non-profit, 501c3 organization that is a true public/private partnership comprised of state agencies, concerned citizens, corporate sponsors, and community and civic organizations with the stated goal of encouraging "behavioral change" in our citizens about litter. This ultimate objective of changing behavior means stopping litter at its source – the people who do it.
Two of PalmettoPride's programs overlap with trees:
National Parks and Forest Program
PalmettoPride has partnered with the Department of Natural Resources, DHEC, the South Carolina Forestry Commission and other forces to pilot the National Parks and Forest program. It is designed to heighten enforcement efforts, bring volunteers together to clean up the hundreds of illegal dumpsites in the forests and parks of South Carolina. To build further awareness of the litter problem Litter Buster Hotline signs are also put in the target sites. A group of over 100 dedicated volunteers came together to clean up more than six tons of litter from illegal dumpsites in the Francis Marion National Forest. More cleanups are in the works.
PalmettoPride Tree Grants
The PalmettoPride Tree Grant program works in conjunction with the Community Pride Grant program. Grants are awarded in the form of trees.
PalmettoPride also works in the following ways:
* Education, which includes the programs: Litter Trashes Everyone, Challenge for the Environment Grants, Litter Curriculum, and Green Driver Program.
* Enforcement, which includes the programs: Zero Tolerance Weekend, Litter Enforcement Task Force, Litter Busters Toll-Free Hotline, and National Parks and Forest Program.
* Awareness, which includes the programs: Media Campaigns, Keep South Carolina Beautiful, Pride Week Blitz, Community Pride Grants, PalmettoPride Tree Grants, SC Education Lottery Clean$weep, SC Litter Control Association, Graffiti Hurts, and Commercial Waste Haulers.
* Pickup, which includes the programs: Prideways, Adopt-A-Highway, Great American Cleanup, Forests-Parks-and-Water, Commercial Waste Haulers, and Collegiate Recycling.
For more information, visit PalmettoPride.


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Brown v. Board of Education National Historic Site
Code: B0801 Author: Mary Maruca Publisher: Western National Parks Association ISBN: 9781583690307 Soft cover: 16 pages, 7 3/4" x 10"
Member Price: $0.85
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May 17th, 1954 marks the date of the Supreme Court decision in Brown v. Board of Education. Legally sanctioned segregation in public schools ended, forever changing the way Americans view equality. This book is a concise description of the historic decision, including an account of the legal groundwork laid by the NAACP and countless courageous individuals. Includes historic photos of people involved with the case. ^~Author: Mary Maruca ^~Publisher: Western National Parks Association ^~ISBN: 9781583690307 ^~Soft cover: 16 pages, 7 3/4" x 10"
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Chitra Puja Day
2 Responses to "Chitra Puja Day"
Sarasvathi Iswarapatham says:
March 22nd, 2011 at 5:53 am
Om Sivaya,Thank you Kathirswami.Very kind of you. Mikka Nandri Swami.Om
Jutika says:
March 23rd, 2011 at 12:15 pm
From Our Gurus' Teachings
- Gurudeva's Master Course Lesson of the Day
Bodhinatha's Latest Upadeshas:
"Clarifying Multiple Gods and Hindu Denominations" (October 10,2016)
"Temples with multiple deities can be confusing, especially for today's Hindu youth. For clarity, we need to bring forward a more precise understanding of the different Hindu denominations and how the different Gods are viewed from within each denomination. For spiritual advancement it is best to focus on one deity and get to the vibration that deity. When we hear teachings from various Hindus, it is important to understand and identify which denomination they are speaking from. This will avert confusion when that teaching gets contradicted in a different context where someone is talking about the same subject but from a different philosophical background."
Path to Siva, Chapter 7.
"The Many Facets of Saivite Hinduism" (November 9, 2016)
Bodhinatha reviews the main characteristic of Saivite philosophy and practice with an indepth focus on the four stages of religions evolution, chariya, kriya, yoga and jnana. He highlights how this shows that Saiva Siddhanta is unique and quite from the modern practice of Hinduism as Vedanta
Path to Siva, Chapter 8.
Click here to go to an index of all of Bodhinatha's and Gurudeva's online audio.
Archives are now available through 2001. Light colored days have no posts. 1998-2001 coming later.


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Social work in the communities in Gulu District Northern Uganda
- Gulu, Central Region, Uganda
Volunteer Opportunity posted by CADIP on June 18, 2016
More information and application: www.cadip.org
Call in USA: 646-657-2900; 617-841-0400; 310-882-7400
Call in Canada: 416-943-4900; 514-316-8500; 604-628-7400
With this project, we'll support a youth parent local organization in Gulu District, Northern Uganda. It was formed by a group of youth with an interest in creating employment opportunities for the generally underprivileged youth in the district. The aim is to empower youth in Gulu District and surrounding areas economically and socially through basic vocational and life skills training, health awareness creation, provision of support to persons living with disability and development of income generation projects.
The work includes social work in the communities where volunteers will be involved in the general care for the children, working in the local school where you will be involved in promotion of the education growth of the children both through classroom work and also practical work, you will also be involved in the children innovation and creativity activities that will also promote the education growth of the children. Volunteers will be involved in helping in organizational duties and home based work within the communities.
Duration of the project: 1 to 12 months. The program is running throughout the year.
Language: English
Accommodation: The volunteer will live in a host family within the community and this will provide you with the opportunity to learn more from the local people and also share in their daily way of life.
Location: The project is located in northern region which is about eight hours drive from Kampala city.
More information and enrollment: http://www.cadip.org/volunteering-in-uganda
Volunteer opportunities in other countries: www.cadip.org
Areas of focus:
Environment , Sports and recreation , International relations , Volunteering , Family , International cooperation , Poverty and hunger , Health and medicine , Community development , Education , , , , , , , ,
- Gulu, Central Region, Uganda
Duration:3 months or longer
International volunteer options:International volunteers welcome
Areas of focus:
Environment , Sports and recreation , International relations , Volunteering , Family , International cooperation , Poverty and hunger , Health and medicine , Community development , Education , , , , , , , ,


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Dena Bank recruitment 2016-17 notification coordinator posts – Dena Bank invites application for the position of BC coordinator vacancies. Apply before 30th September 2016.
Name of post:- BC coordinator
Eligibility:- Diploma, 10th class, BE, BCA, MCA, Degree
Job Location:- Chhattisgarh
Pay Scale:- Rs.15000/- Per Month
Last Date:- 30th September 2016
Total No. of Posts:-Not Specified
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How to apply:- Candidates may apply in prescribed application form along with photocopies of all relevant documents send to the Raipur zonal officer, 2nd floor, LIC investment building – II, behind LIC divisional office, JeevanBimaMarg, Pandri, Raipur:- 492004, Chhattisgarh on or before 30th September 2016.
Click here to view the advertisement
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Important Dates:-
- Last date for the submission of online application is 30th September 2016.
General Instruction:-
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- Applicant should ready to travel in remote / rural villages.
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1210 EMPIRE AVE Park City, UT 84060
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My Question Is:
Estimated Monthly Payment$5,051
- Photos
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- Share
- Virtual Tour
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- Status: Active
Listing courtesy of KW Park City Keller Williams Real Estate
This is a true urban-contemporary home designed to be in the mountains. Hank Louis, the visionary and award-winning architect at Design Build Bluff and Gigaplex, designed this smart Old Town home that's contemporary while standing the test of time. It blends modern with the mountain vibe with custom finishes throughout.
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Bath: Master, Disposal, Gas Log, Great Room, Range: Gas, Vaulted Ceilings, Granite Countertops
Basement Full, Walkout
Fireplaces 3
Heating: Forced Air, Gas: Radiant
Floor Type: Carpet, Hardwood, Tile
Exterior Features Include:
Balcony, Walkout
Acreage: 0.0400 Acres
Lot: Additional Land Available, Terrain: Grad Slope
Landscape Landscaping: Part
Roof: Asphalt Shingles
Exterior: Frame, Stone
Garage/Parking: Attached, Opener
Driveway Concrete
Carport Capacity: 1
Other Features Include:
Inclusions: Dryer, Range, Washer, Water Softener: Own
Amenities: Cable Tv Available
Water: Culinary
Utilities Gas: Connected, Power: Available, Sewer: Connected, Sewer: Public, Water: Connected
Taxes 4824
School District: South Summit
Information deemed reliable but not guaranteed accurate. Buyer to verify all information.The multiple listing information is provided by Wasatch Front Regional Multiple Listing Service, Inc. from a copyrighted compilation of listings. The compilation of listings and each individual listing are © 2014 Wasatch Front Regional Multiple Listing Service, Inc., All Rights Reserved. The information provided is for consumers, personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.


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Hotel Crown Palais Kokura
Select your stay dates to check availability at Hotel Crown Palais Kokura
Hotel Crown Palais Kokura
About the Hotel
Property Location
Located in Kitakyushu (Kokura), Hotel Crown Palais Kokura is minutes from Riverwalk Kitakyushu and Zenrin Map Museum. This hotel is within close proximity of Kokura Castle and Seicho Matsumoto Memorial.
Make yourself at home in one of the 90 air-conditioned rooms featuring refrigerators and minibars. Complimentary wired and wireless Internet access keeps you connected, and satellite programming provides entertainment. Private bathrooms with shower/tub combinations feature complimentary toiletries and bidets. Conveniences include coffee/tea makers and in-room massages, and you can also request irons/ironing boards.
Make use of convenient amenities such as complimentary wireless Internet access, wedding services, and tour/ticket assistance.
Satisfy your appetite at the hotel's restaurant, which serves breakfast, lunch, and dinner. Dining is also available at a coffee shop/café, and room service (during limited hours) is provided.
Business, Other Amenities
Featured amenities include complimentary high-speed (wired) Internet access, dry cleaning/laundry services, and a 24-hour front desk. Planning an event in Kitakyushu? This hotel features 495 square feet (46 square meters) of event facilities.
Hotel Facilities
- Free WiFi
- Wedding services
- Number of floors - 9
- Free wired high-speed Internet
- Tours/ticket assistance
- Conference space size (meters) - 46
- Restaurant
- Coffee shop or café
- Luggage storage
- Breakfast available (surcharge)
- Total number of rooms - 90
- Number of buildings/towers - 1
- Number of meeting rooms - 5
- Conference space size (feet) - 495
- Dry cleaning/laundry service
- 24-hour front desk
Room Facilities
- Hair dryer
- Coffee/tea maker
- Iron/ironing board (on request)
- Private bathroom
- Air conditioning
- Room service (limited hours)
- Shower/tub combination
- Free cribs/infant beds
- Free WiFi
- Bidet
- Satellite TV service
- Minibar
- Free toiletries
- Free wired high-speed Internet
- Bathrobes
- Television
- Refrigerator
- In-room massage available
Hotel Policy
Know Before You Go
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United States District Court, N.D. New York
March 6, 2015
PATRICK GUILLORY, Plaintiff,v.ROBERT WEBER, Cleric, Mid-State Correctional Facility; KURT ELLIS, Cleric, Mid-State Correctional Facility; KAREN MCDANIEL, Acting Superintendent of Programs, Mid-State Correctional Facility; NICK DEMMA, Acting Food Services Administrator, Mid-State Correctional Facility; THEDA KUPIEC, Senior Mailroom Supervisor, Mid-State Correctional Facility; NUNZIO DOLDO, Acting Superintendent, Gouverneur Correctional Facility; ROBERT PIRIE, Deputy Superintendent of Programs, Gouverneur Correctional Facility; DANIEL CRAWFORD, Deputy Superintendent of Security, Gouverneur Correctional Facility, Defendants.
PATRICK GUILLORY Pro se Plaintiff Clinton Correctional Facility Dannemora, NY.
ADRIENNE J. KERWIN, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Albany, NY, Attorney for Defendants.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
On February 12, 2011, [1] pro se Plaintiff Patrick Guillory, while incarcerated at Gouverneur Correctional Facility, commenced a civil rights action, pursuant to the Religious Land Use Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., and 42 U.S.C. § 1983 for alleged violations of his rights under the First and Fourteenth Amendment stemming from his confinement at both Gouverneur and Mid-State Correctional Facilities. See generally Dkt. No. 1, Compl. On August 18, 2014, Defendants moved for summary judgment. Dkt. No. 140. On September 5, 2014, Plaintiff filed his Response in opposition. Dkt. No. 147.[2] The following claims are presently before the Court:[3]
1. Retaliation claims against Mid-State Defendants Ellis, Demma, Weber, and McDaniel for the July 11th and July 19th incidents;
2. First Amendment free exercise claim against Mid-State Defendants Weber, Ellis, and McDaniel for the lack of Jewish service on July 11th;
3. First Amendment free exercise and RLUIPA claims against Mid-State Defendants McDaniel, Demma, and Weber for failing to provide him with a meal to break his fast on July 19th;
4. First Amendment free exercise and RLUIPA claims against Gouverneur Defendants Crawford, Doldo, and Pirie for the events that occurred during the Festival of Sukkot;
5. Fourteenth Amendment equal protection claim against Gouverneur Defendants Doldo, Pirie, and Crawford as well as Mid-State Defendants Ellis and Weber; and
6. Plaintiff's First Amendment and retaliation claims against Mid-State Defendant Kupiec.
A. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any, " that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard... they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopki ns, 14 F.3d 787, 790 (2d Cir. 1994), accord Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). Summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The following facts are undisputed.
B. Facts
1. Mid-State Correctional Facility
a. July 11, 2011
Plaintiff claims that he and other Jewish inmates were prevented from attending
Jewish services on July 11, 2011, while Christian and Wicca inmates were permitted to attend their respective religious services on that date. Compl. at ¶ 19. Facility chaplains are responsible for planning and scheduling religious events and services, but only for the particular religion that he or she practices. Dkt. No. 140-4, Kurt Ellis Decl., dated May 15, 2014, at ¶ 7. They are also responsible for documenting an inmate's request to attend such services, which includes arranging "call-outs." Id. at ¶¶ 7-8. A call-out is an authorization slip that permits inmates to attend religious functions. Id. at ¶ 9. Once a call-out is submitted by a facility chaplain, it must be approved by the Deputy Superintendent of Programs. Id. at ¶ 10.
Defendant Karen McDaniel is employed by the New York State Department of Corrections and Community Supervision ("DOCCS") as Mid-State's Acting Deputy Superintendent for Programs. Dkt. No. 140-6, Karen McDaniel Decl., dated May 15, 2014, at ¶ 1. On July 12, 2011, McDaniel received a letter from Plaintiff complaining that a call-out was not issued for Jewish service on July 11th. Id. at ¶ 10.
Defendant Kurt Ellis is the Protestant Chaplain at Mid-State, and, according to facility policy, is not responsible for arranging religious services for any other faith-based groups. Ellis Decl. at ¶¶ 1& 7. Rabbi Theodore Max is Mid-State's Chaplain for the Jewish faith.[4] Id. at ¶ 11. On July 11, 2011, Ellis informed Rabbi Max that, due to a clerical error in the call-out office, a call-out for Jewish service had been left off the call-out list and that Plaintiff was upset that Jewish service was not held. Id. at ¶ 19. On Ellis's suggestion, Rabbi Max provided Plaintiff with a private Jewish service on July 11, 2011. Id. at ¶¶ 21-22.
During all relevant times, Defendant Robert Weber was employed by DOCCS as Mid-State's Coordinating Chaplain. Dkt. No. 140-9, Robert Weber Decl., dated May 15, 2014, at ¶ 1. Weber states that Rabbi Max, in his capacity as the Jewish Chaplain, was responsible for preparing the call-out for Jewish service on July 11, 2011, but his records indicate that a call-out for Jewish service was not published on that date. Id. at ¶¶ 10-11.
b. July 19, 2011
On July 14, 2011, Defendants Weber and McDaniel received a memorandum from Catherine M. Jacobsen, DOCCS Acting Deputy Commissioner of Program Services, which outlined the protocol for the Jewish Fast of Tammuz. Weber Decl. at ¶ 13; McDaniel at ¶ 13. The memorandum states that "[a]ny Jewish inmate who chooses to participate in the fast will be excused from the Cold Alternative Diet[5] for all three meals" and "alternative procedures to distribute the evening meal should be implemented by the facility" because Jewish inmates "can not eat until after the sun has set" during the Fast of Tammuz. Dkt. No. 147-1, Pl.'s Resp. Ex., at p. 3, Jacobsen Mem., dated July 14, 2011.[6] Weber forwarded the memorandum to Rabbi Max and directed him to make the necessary meal accommodations for any Jewish inmate wishing to participate.Weber Decl. at ¶ 13. On July 19, 2011, Plaintiff did not receive a meal to break his fast. McDaniel at ¶ 20. On July 20, 2011, Defendant Weber "learned that [Plaintiff] did not receive a meal to break the Fast of Tammuz." Id. at ¶ 14.
Facility chaplains are also responsible for submitting event packets and the list of inmates wishing to participate in a particular fast or religious event that requires special dietary consideration. McDaniel Decl. at ¶ 16. Pursuant to DOCCS rules, event packets are to be submitted to McDaniel's office at least thirty days in advance of such events. Id. On July 19, 2011, McDaniel first became aware of Plaintiff's complaint that he was not provided with a meal to break his fast. Id. at ¶ 18. McDaniel was previously unaware that Jewish inmates were planning to participate in the Fast of Tammuz because she did not receive an event packet or a list of inmates wishing to participate in the fast from Rabbi Max. Id. at ¶ 17. On July 28, 2011, in response to Plaintiff'scomplaint, McDaniel informed Plaintiff that although Rabbi Max informed the mess hall staff of hisparticipation in the fast, he "did not clearly direct staff to provide food for [Plaintiff] to break the fast." Dkt. No. 1-1, Compl. Ex. at p. 8, Tammuz Compl. Mem., dated July 28, 2011;[7] McDaniel Decl. at ¶ 20. McDaniel further stated that he understood that Rabbi Max apologized to Plaintiff, and that "[t]his mistake took place due to problems with communication, not anti-Semitism." Compl. Ex. at p. 8, Tammuz Compl. Mem.
Defendant Nick Demma is the Acting Head Cook at Mid-State and oversees food service operations. Dkt. No. 140-2, Nick Demma Decl., dated May 23, 2014, at ¶¶ 1 & 5. On July 19, 2011, Demma was not tasked with any meal planning, preparation, nor service relating to the Fast of Tammuz nor did he receive a request to prepare a meal for Plaintiff. Id. at ¶¶ 8-9. Generally, such requests are sent to Demma from the coordinating chaplain in advance of scheduled special events. Id. at ¶ 9. Demma maintains that he did not intentionally fail to feed Plaintiff on July 19, 2011. Id. at ¶¶ 11-12.
c. August 22, 2011
On August 3, 2011, Plaintiff was transferred to Gouverneur Correctional Facility. Compl. at ¶ 52. Defendant Theda Kupiec is employed as Mid-State's Senior Mail Cerk. Dkt. No. 140-5, Theda Kupiec Decl., dated May 8, 2014, at ¶¶ 1-2. Defendant Kupiec's responsibilities include inspecting incoming mail pursuant to DOCCS Directives 4421 and 4422. Id. at ¶ 5. At Mid-State, all incoming mail that cannot be forwarded is torn in half and discarded. Id. at ¶ 6. On August 22, 2011, Kupiec tore Plaintiff's parcel of mail because Plaintiff was no longer housed at Mid-State and the mailing appeared to be advertisements. Id. at ¶¶ 7-8. However, after Kupiec tore the envelope in half, she realized that the contents of the mailing were not advertisements but test scores. Id. at ¶ 9. Upon realizing her mistake, Defendant Kupiec taped the mailing back together and forwarded it to Plaintiff along with an apology note explaining her mistake. Id. at ¶ 10; Compl. Ex. at p. 13, Kupiec's Apology, dated Aug. 22, 2011.
2. Gouverneur Correctional facility
a. October 12, 2011
Plaintiff received a memorandum from Rabbi Teresa Syder, [8] dated August 24, 2011, which stated:
From Wednesday dinner, 10/12, through Wednesday dinner, 10/19, during the festival of Sukkot, inmates participating in the festival meal plan have the option of eating their meals in the Sukkah (booth).... Please enter the Activities Building through the main door, sign in with the Activities Building Officer, who will then designate where you will wait until it is your turn to use the sukkah. Only one inmate at a time will use the sukkah to eat all or part of his meal.... Please indicate below whether you plan to use the sukkah during the festival of Sukkot.... [T]his will constitute a special sub-group of those who have signed to participate in the Sukkot meals.
Compl. Ex. at p. 14, Rabbi Snyder Mem., dated Aug. 24, 2011 (emphasis in original). On the form, Plaintiff indicated his intent to use the Sukkah booth during the Festival of Sukkot. Id. Inmates who signed up to participate in the Festival of Sukkot received a frozen Kosher dinner from the mess hall on October 12th and October 13th, which they should have been able to heat in the microwave, even if the inmate lost his microwave privilege. Dkt. No. 140-8, Rabbi Teresa Snyder Decl., dated May 20, 2014, at ¶¶ 9-10; Compl. Ex. at p. 23, Jewish Holy Day of Sukkot 2011 Mem., dated Oct. 5, 2011.
On October 12, 2011, the microwave, toaster, and hot pot were removed from Plaintiff's housing unit for a period of three days. Dkt. No. 140-3, Nunzio Doldo Decl., dated May 13, 2014, at ¶ 13. His housing unit lost its microwave privilege because an unidentified inmate violated that unit's policy by smoking cigarettes in the bathroom. Dkt. No. 140-1, Daniel Crawford Decl., dated May 14, 2014, at ¶ 16; Doldo Decl. at ¶¶ 13-14. Nevertheless inmates like Plaintiff, who lost their microwave privilege, were supposed to have access to a microwave to heat up their Kosher meals on October 12th and 13th. Synder Decl. at ¶ 12. However, Plaintiff was unable to heat his Kosher meal on October 12th because the microwave was removed from his housing unit, and a microwave was not provided in the Activities Building for inmates' use. Crawford Decl. at ¶¶ 16-17; Synder Decl. at ¶ 11.
Defendant Robert E. Pirie was the Deputy Superintendent of Program Services at Gouverneur at all relevant times. Dkt. No. 140-7, Robert E. Pirie Decl., dated May 13, 2014, at ¶ 1. Pirie's responsibilities did not include overseeing inmates' access to microwave ovens in their housing units nor was he in charge of staffing the Activities Building. Id. at ¶¶ 8-9. On October 13, 2011, Pirie received Plaintiff's letter, dated October 12, 2011, in which he complains that he was unable to microwave his Kosher dinner the previous night. Id. at ¶ 10. See id. at ¶ 10 & 14. Pirie provided a copy of the letter to Bruyere and Captain Rockwood, and requested that they investigate the matter and apprise him of the outcome.[9] Id. at ¶ 11. That same day, Bruyere advised Defendant Pirie that the matter was resolved. Id. at ¶ 12. Based on that information, on October 13, 2011, Pirie issued a memorandum to Plaintiff advising him that no further action was deemed necessary. Id. at ¶ 13.
b. October 13, 2011-October 16, 2011 & October 19, 2011
Plaintiff was unable to access the Activities Building during mealtimes from October 13, 2011 to October 16, 2011, and on October 19, 2011. Dkt. No. 140-10, Adrienne J. Kerwin Decl., Ex. A, Patrick Guillory Dep., dated Sept. 19, 2013, at p. 55. As a result, he could not reach the Sukkah booth on those days; however, he was able to access the Sukkah booth on October 12th, [10] 17th and 18th. See id.; Compl. at ¶¶ 67-68.
Plaintiff states that under Jewish law, he is mandated to eat his food in the Sukkah booth during the Sukkot holiday. Guillory Dep. at p. 99. According to Rabbi Synder, under Jewish law, there are circumstances where one may be excused from eating in the Sukkah booth, but under no circumstance does Jewish law require an inmate to abstain from eating due to his inability to access the Sukkah booth. Synder Decl. at ¶¶ 13-14.
Defendant Daniel Crawford is Gouverneur's Deputy Superintendent of Security. Crawford Decl. at ¶ 1. Plaintiff wrote a letter addressed to Defendants Pirie and Crawford regarding his inability to access to the Sukkah booth. Pirie Decl. at ¶ 14; Crawford Decl. at ¶ 7. In response to Plaintiff's complaint, which was received on October 17, 2011, Defendant Crawford held a meeting with the Watch Commander's Office to ensure that a correctional officer would be available at the Activities Building to accommodate those inmates who expressed interest in having their meals in the Sukkah booth during the Festival of Sukkot. Pirie Decl. at ¶ 15; Crawford Decl. at ¶¶ 8-9. Defendant Crawford is not responsible for assigning correctional officers to their post; that is within the purview of the chart sergeants. Crawford Decl. at ¶ 11.
During all relevant times, Defendant Nunzio Doldo was the Superintendent at Gouverneur. Doldo Decl. at ¶ 3. On October 14, 2011, via Plaintiff's letter, Defendant Doldo first became aware of Plaintiff's complaint that he could not access the Activities Building on October 13, 2011, and that the microwave was removed from his housing unit on October 12, 2011 . Id. at ¶ 7; Pl.'s Resp. Ex. at p. 199, Doldo Resp. to Second Set of Interrogs., dated Oct. 10, 2013. Plaintiff was unable to access the Sukkah booth on October 13th because correctional officers were not assigned to cover the Activities Building during mealtimes. Doldo Decl. at ¶ 8. The Activity Building is normally closed during mealtimes, and it was closed during mealtime on October 13th. Id. at ¶ 9. According to Defendant Doldo, this was unintentional and was not intended to discriminate against Plaintiff or any other Jewish inmate who was participating in the Festival of Sukkot. Id. Defendant Pirie states that it appears that procedural errors and miscommunication between various staff members led to the disruption of Jewish meal times during the Sukkot holiday. Pirie Decl. at ¶ 17. Pirie further states that the disruption to the Sukkot holiday was an error and not based on discrimination against Jewish inmates nor was it intended as a form of retaliation against the Plaintiff. Id. at ¶¶ 18-19.
C. First Amendment Free Exercise & RLUIPA
The First Amendment to the United States Constitution guarantees the right to free exercise of religion. U.S. CONST. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). The free exercise clause applies to prison inmates, subject to appropriate limiting factors. Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) ("Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause.") (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). To assess a free exercise claim, "a court must determine (1) whether the practice asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely held; (2) whether the challenged practice of the prison officials infringes upon the religious belief; and (3) whether the challenged practice of the prison officials furthers some legitimate penological objective." Farid v. Smith, 850 F.2d 917, 926 (1988) (citations omitted).
The principles which guide the analysis of a free exercise claim are similar to those applicable to an RLUIPA cause of action, although the two claims are analyzed under somewhat different frameworks. See Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006).
RLUIPA provides, in pertinent part, that
[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of a 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).
RLUIPA prohibits governmental entities subject to its reach from imposing a substantial burden on religion even where it stems from a generally applicable law, practice, or policy, but it places a higher burden on the defendants than does the First Amendment, which requires only that an infringement be "reasonably related to legitimate penological interests." Dove v. Broome Cnty. Corr. Facility, 2011 WL 1118452, at *10 (internal citations omitted). While the statute does not define "substantial burden, " the Second Circuit has assumed that "[s]ince substantial burden is a term of art in the Supreme Court's free exercise jurisprudence... Congress, by using it, planned to incorporate the cluster of ideas associated with the Court's use of it." Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007) (citations omitted). The Supreme Court has held that a substantial burden is one that "put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs." Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 717-18 (1981) (cited in Westchester Day Sch. v. Vill. of Mamaroneck ).
Plaintiff claims that Mid-State Defendants McDaniel, Weber, and Ellis prevented him and other Jewish inmates from attending Jewish service on July 11, 2011, in violation of his First Amendment right to freely exercise his religion. Defendants argue that these three Defendants were not personally involved in the July 11th incident. The Second Circuit has held that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted). Moreover, "the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy the prerequisite of personal involvement." Kinch v. Artuz, 1997 WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 F.3d at 874 & Wright v. Smith, 21 F.3d at 501) (furthercitations omitted). Thus, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
The Second Circuit has stated that a supervisory defendant may have been personally involved in a constitutional deprivation within the meaning of § 1983 if he: (1) directly participated in the alleged infraction; (2) after learning of the violation, failed to remedy the wrong; (3) created a policy or custom under which unconstitutional practices occurred or allowed such policy or custom to continue;(4) was grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d at 873 (citations omitted); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted). Pointedly, "mere linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)); see also Wright v. Smith, 21 F.3d at 501 (defendant may not be held liable simply because he holds a high position of authority).
Here, Jewish service was not held on July 11, 2011 because either Rabbi Max failed to arrange a call-out for such service or there was a clerical error in the call-out office. Ellis Decl. at ¶ 19; McDaniel Decl. at ¶ 11. Therefore, McDaniel, Weber, and Ellis should be dismissed from Plaintiff's free exercise claim because they are not responsible for submitting call-outs for Jewish services or Jewish events, nor are there any facts suggesting that they prevented Rabbi Max from submitting a call-out. In any event, Plaintiff's free exercise claim fails because the failure to call-out Jewish inmates for service on July 11th was an isolated incident. Gill v. DeFrank, 8 F.Appx. 35, 37 (2d Cir. 2001) (missing one religious service does not violate an inmate's First Amendment right to the free exercise of his religion); Troy v. Kuhlmann, 1999 WL 825622, at *15 (S.D.N.Y. Oct. 15, 1999). Moreover, Plaintiff, ultimately did receive religious service on July 11th as Rabbi Max provided him with a private service that evening.
Plaintiff asserts that his religious rights were violated under the First
Amendment and RLUIPA when Defendants Weber, McDaniel, and Demma failed to provide him with a meal on July 19, 2011, to break his fast. To be sure, Plaintiff meets the first element of this claim as he believes he is required to break his fast under Jewish law. Pl.'s Resp. in Opp'n, at p. 17. Although it does not appear that Mid-State has a policy of denying meals to those wishing to break their religious fast, "[a]n individualized decision to deny an inmate the ability to engage in religious exercise is analyzed in the same way as a prison regulation denying such exercise." Salahuddin v. Goord, 467 F.3d at 274 n.4 (citations omitted). However, "[c]ourts have generally held that incidents that are isolated, or few in number, involving a denial of religiously-mandated food, do not give rise to a First Amendment claim." Washington v. Afify, 968 F.Supp.2d 532, 538 (W.D.N.Y. 2013) (collecting cases). Thus, the failure to provide Plaintiff with a meal on July 19th to break his fast is insufficient to establish a free exercise claim or a claim under RLUIPA. Ward v. Goord, 2009 WL 102928, at *9 (N.D.N.Y. Jan. 13, 2009); B rown v. Graham, 2010 WL 6428251, at *16 (N.D.N.Y. Mar. 30, 2010) (finding that the withholding of a noon meal was de minimus and did not violate plaintiff's rights under the First Amendment nor RLUIPA). Therefore, the Court recommends granting Defendants' Motion for Summary Judgment pertaining to Plaintiff's July 19th free exercise and RLUIPA claims.
2. Gouverneur Correctional Facility
Plaintiff alleges that he did not have access to a microwave in order to heat his
Kosher meal on October 12, 2011[11] in observance of Sukkot. However, Plaintiff fails to demonstrate that Crawford, Doldo, or Pirie were personally involved with this incident. The microwave was removed from Plaintiff's housing unit because it was discovered that an inmate was smoking cigarettes in the bathroom. Defendants Crawford, Doldo, and Pirie did not direct the removal of the microwave. See Crawford Decl. at ¶¶ 15-18; Doldo Decl. at ¶¶ 7 & 14; Pirie Decl. at ¶¶ 9-11. Instead, the record reflects that Pirie, Doldo, and Crawford only learned about Plaintiff's inability to heat his Kosher meal after October 12th. Therefore, the Court recommends dismissing Pirie, Doldo, and Crawford from Plaintiff's October 12th free exercise and RLUIPA claims for lack of personal involvement.
b. October 13, 2011 to October 16, 2011 & October 19, 2011
Plaintiffadditionally contends that Defendants Crawford, Doldo, and Pirie violated RLUIPA and the Free Exercise Clause when they prevented his ab ility to access the Sukkah booth from October 13th through the 16th, and on the 19th. However, Defendants Crawford, Doldo, and Pirie were also not personally involved with Plaintiff's inability to reach the Sukkah booth. The record demonstrates that Crawford and Pirie first learned of Plaintiff's complaint regarding closure of the Activities Building on October 17th and resolved the matter on that date. As a result, the Court cannot impose supervisory liability for closures that occurred prior to the 17th. The Court also cannot impose supervisory liability for the October 19th closure because Crawford and Pirie remedied the issue on the 17th and were entitled to assume that their subordinates would follow their directives to keep the Activities Building open during mealtimes until the end of the Sukkot holiday. Turkmen v. Ashcroft, 915 F.Supp.2d 314, 340 (E.D.N.Y. 2013) (noting that the state defendants "were entitled to expect that their subordinates would implement their directions"). Thus, the Court recommends dismissing Crawford and Pirie from Plaintiff's free exercise and RLUIPA claims with respect to his inability to access the Sukkah booth.
The Court also finds that Superintendent Doldo was not personally involved with Plaintiff's inability to access the Sukkah booth. It is now well-settled in this Circuit that a defendant's supervisory status or his failure to respond to an inmate's letter of complaint is insufficient to render such defendant liable under § 1983. Rosales v. Kikendall, 677 F.Supp.2d 643, 650-51 (W.D.N.Y. 2010) (collecting cases). "The same is true if the only involvement of the supervisory official is to refer the inmate's complaint to the appropriate staff for investigation." Harnett v. Barr, 538 F.Supp.2d 511, 524 (N.D.N.Y. 2008). However, there are circumstances when a supervisory official "cannot insulate" himself from supervisory liability by failing to respond to a letter of complaint. I d. (quoting McKenna v. Wright, 386 F.2d 432, 437-38 (2d Cir. 2004), and discussing personal involvement when a supervisor is confronted with claims of an "ongoing" constitutional violation). Whether a supervisory official can be liable under the second Colon factor[12] - failing to remedy a wrong after learning of the violation - appears to turn on whether the complaint alleges an "ongoing" constitutional violation. Id. A supervisor will be "personally involved" if the complaint alleges an "ongoing" constitutional violation, the supervisor reviews the complaint, and it is a situation that he can remedy directly. Id. (quoting Hall v. Leclaire, 2007 WL 1470532 (S.D.N.Y. May 22, 2007)). On the other hand, if the violation has already occurred and is not ongoing, then "the official will not be found personally responsible for failing to remedy a violation." Id.
Here, Superintendent Doldo was unaware of an ongoing constitutional violation. Instead, it is uncontested that on October 14, 2011, Superintendent Doldo learned about the October 12th microwave incident and Plaintiff's inability to enter the Activities Building the previous day.[13] There are no other facts suggesting that Doldo was aware of an ongoing issue with access to the Activities Building during mealtimes. And in fact, Plaintiff was able to enter the Activities Building on October 12th. Therefore, his failure to respond to or act on Plaintiff's letter of complaint, which, at the time, appeared to refer to a previous and isolated error, is insufficient to find him personally involved in the mishaps that took place during the Festival of Sukkot. For this reason, the Court recommends dismissing Superintendent Doldo from Plaintiff's free exercise and RLUIPA claims.
D. First Amendment Free Flow of Non-Legal Mail
It is clear that a prisoner's First Amendment rights are implicated when the "free flow of incoming and outgoing mail" is hindered. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). However, the right to the free flow of mail does not provide for the unfettered free flow of mail. Reasonable restrictions to the free flow of mail are allowed, provided the restrictions "further[] one or more of the substantial governmental interests of security, order, and rehabilitation... and must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Id. (quoting Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986)). "To establish a claim for interference with regular, non-legal mail in violation of the First Amendment, an inmate must show a pattern and practice of interference that is not justified by any legitimate penological concern.'" Singleton v. Williams, 2014 WL 2095024, at *3 (S.D.N.Y. May 20, 2014) (citation omitted). The Second Circuit has stated that an "isolated incident of mail tampering is usually insufficient to establish a constitutional violation." Id. (quoting Davis v. Goord, 320 F.3d at 351).
Here, Plaintiff fails to demonstrate a pattern and practice of interference with his incoming, non-legal mail. Although Plaintiff alleges that Defendant Kupiec destroyed an envelope sent from the Postmaster on July 29, 2011, Kupiec states that "this claim is false." Kupiec Decl. at ¶ 12. Nonetheless, even assuming that July 29th and August 22nd were instances of mail interference, it is insufficient to show a pattern and practice of interference with Plaintiff's mail. Cancel v. Goord, 2001 WL 303713, at *6-7 (finding that neither one instance of interference with incoming, non-legal mail nor two instances of mail interference with incoming, legal mail amount to a pattern and practice of mail interference). As a result, the Court recommends dismissing Plaintiff's claim of interference with his incoming, non-legal mail.
E. Retaliation
The Second Circuit has made it clear that an inmate has a substantive due process right not to be subjected to retaliation for the exercise of a constitutional right, such as petitioning the government for redress of grievances. Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir. 1988). Claims of retaliation, like those asserted by Plaintiff, find their roots in the First Amendment. Central to such claims is the notion that in a prison setting, corrections officials may not take actions which would have a chilling effect upon an inmate's exercise of First Amendment rights. Gill v. Pidlypchak, 389 F.3d 379, 381-83 (2d Cir. 2004).
Because of the relative ease with which claims of retaliation can be invoked, courts should examine such claims "with skepticism and particular care." Colon v. Coughlin, 58 F.3d at 872 (citation omitted); Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkewicz v. Sorema N.A., 534 U.S. 506 (2002) ("[V]irtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act." (citation omitted)); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
To state a First Amendment claim for retaliation, an inmate must demonstrate (1) he or she was engaged in constitutionally protected activity, (2) the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action in that the alleged conduct was substantially motivated by the protected activity. Gill v. Pidlypchak, 389 F.3d at 380 (citing Dawes v. Walker, 239 F.3d at 492); see also Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002).
The plaintiff bears the initial burden in showing that the defendant's actions were improperly motivated. "Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (citing Dawes v. Walker, 239 F.3d at 493). Otherwise, the retaliatory act is " de minimis and therefore outside the ambit of constitutional protection." Dawes v. Walker, 239 F.3d at 493.
In situations where the defendant's actions are the result of both retaliatory and legitimate reasons, the burden shifts to the defendants to show that they would have taken the same action absent the retaliatory motive. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing, inter alia, Mount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977) & Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994)).
1. July 29, 2011
Plaintiff alleges that on July 29, 2011, Kupiec read his correspondence and destroyed the original envelope in retaliation for submitting a grievance which related to the lack of religious service on July 11, 2011. Compl. at ¶¶ 42-43. There is no dispute that a grievance is protected speech and that intentionally interfering with a inmate's mail is an adverse action. However, there is no evidence that Kupiec tampered with Plaintiff's mail and, even assuming that Kupiec interfered with Plaintiff's mail on July 29th, there is no basis to infer that Kupiec retaliated against Plaintiff for submitting a grievance that did not name Kupiec. Roseboro v. Gillespie, 791 F.Supp.2d 353, 369 (S.D.N.Y. 2011) (collecting cases for the proposition that a plaintiff fails to demonstrate a causal connection when a defendant is not personally named in a grievance or a complaint). Thus, the Court recommends dismissing this claim.
2. August 22, 2011
Plaintiff also alleges that on August 22, 2011, Defendant Kupiec tore an envelope containing test scores in retaliation for filing a federal action on May 31, 2011, in which Plaintiff names Kupiec as a defendant. To be sure, Plaintiff's May 2011 federal action constitutes protected speech. And, while it is true that Kupiec ripped Plaintiff's test scores, Kupiec, upon realizing her mistake, reassembled the contents of that mailing and forwarded it to the Plaintiff along with an apology note. Such conduct cannot be characterized as an adverse action. As noted above, "[o]nly retaliatory con duct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Davis v. Goord, 320 F.3d at 353 (citing Dawes v. Walker, 239 F.3d at 493). Thus, the Court recommends dismissing Kupiec from this action.
3. July 11, 2011
The Court also recommends dismissing Plaintiff's retaliation claim against Protestant Chaplain Ellis.[14] Plaintiff meets his initial burden as he sufficiently demonstrates that Ellis failed to submit a call-out slip, which prevented Plaintiff from attending Jewish service on July 11th, and, notably, this adverse action took place just forty-one days after Plaintiff filed a federal action in which Ellis was named as a defendant. Nonetheless, Plaintiff's retaliation claim fails as the record amply shows that Chaplain Ellis was not in charge of submitting call-outs for Jewish inmates or responsible for scheduling Jewish events or services. Thus, it is abundantly clear that Chaplain Ellis "would have taken exactly the same action absent the improper motive." Scott v. Coughlin, 344 F.3d at 288.
4. July 19, 2011
Plaintiff also alleges that Defendants Demma, Weber, and McDaniel failed to provide him with a meal to break his fast on July 19th in retaliation for filing a grievance on July 12th in which he complains about the July 11th incident. Compl. at ¶¶ 33-36. The record demonstrates, however, that McDaniel was not responsible for ensuring that Jewish inmates be provided with a meal to break their fasts, nor did Demma receive any request or special instructions to prepare a meal for the Plaintiff to break his fast. As a result, the Court finds McDaniel and Demma would have taken the same actions absent a retaliatory motive. With respect to Weber, Plaintiff fails to demonstrate that Weber took any adverse action against him. Instead, the record demonstrates that he instructed Rabbi Max to make the necessary meal accommmodation in accordance with the July 14, 2011 memorandum. For these reasons, the Court recommends dismissing Plaintiff's retaliation claim against Defendants McDaniel, Demma, and Weber.
F. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment states that no person shall be denied "the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause mandates state actors to treat similarly situated people alike. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (cited in Verdal v. Frantz, 2002 WL 31309175, at *3 n.5 (N.D.N.Y. July 31, 2002)). To state an equal protection claim, a claimant "must prove purposeful discrimination... directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (quoted in Verdal v. Frantz ). To do so, it is imperative that a plaintiff demonstrate that similarly situated persons have been treated differently. Gagliardi v. Vill.of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) (citing to Cleburne v. Cleburne Living Ctr . ). Furthermore, religion, like race or alienage, is an inherently suspect classification. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (cited in Leocata ex rel. Gilbride v. Wilson Coker, 343 F.Supp.2d 144, 150 (D. Conn. 2004)); see also Am. Atheists, Inc. v. Port Auth. of NY & NJ, 936 F.Supp.2d 321, 338 (S.D.N.Y. 2013) aff'd, 760 F.3d 227 (2d Cir. 2014) ("If claimants can demonstrate such intentional discrimination on the basis of religion, the government action is subject to strict judicial scrutiny.") (citation and internal quotation marks omitted).
Here, Plaintiff fails to demonstrate that Jewish inmates were treated differently from other similarly situated individuals. The record demonstrates that Jewish inmates did not have service on July 11th because a call-out was not submitted pursuant to a policy that applies to all faith-based groups in the facility. Because Plaintiff has not demonstrated that other religious groups were permitted to have religious service without submitting a call-out slip, Plaintiff cannot show that Jewish inmates were treated any differently from other groups. Likewise, Plaintiff fails to show that non-Jewish inmates were permitted to have access to the Activities Building during mealtimes while Jewish inmates were excluded from such access. Therefore, the Court recommends dismissing Plaintiff's Fourteen Amendment Equal Protection claim.
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants' Motion for Summary Judgment (Dkt. No. 140) be GRANTED in its entirety and that the case be DISMISSED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a).
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APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
Robert King was found guilty in a non-jury trial of the offense of armed robbery and was sentenced to the penitentiary for a term of 5 to 15 years. He contends that his guilt was not proved beyond a reasonable doubt and that his sentence was excessive.
Arnold Nasby, a route salesman for the Centennial Laundry, testified that about 6 a.m. on July 11, 1973, he was walking out of a customer location at 238 North Pine Street in Chicago when an automobile containing three youths stopped, about 25 feet from him. The driver (later identified as Robert King) and the youth seated in the front passenger seat (identified as Willie Taylor) got out of the car with guns and approached Nasby. The third youth, a juvenile, remained in the rear seat of the car. King placed a shotgun to Nasby's stomach, told him to remain quiet and announced a holdup. Taylor, armed with a pistol, circled Nasby, searched his pockets from the rear and removed his money and keys. King and Taylor then returned to the car and assumed their prior seating positions. As the car proceeded in reverse along Pine Street, Nasby wrote down a description of the car and its license number. The car then proceeded forward toward Nasby who heard King tell Taylor to "shoot him." There were parked cars between the robbers' car and Nasby, and he threw himself to the ground. No shots were fired. Nasby called the police and gave them a description of the car and its occupants.
Nasby further testified that the morning was sunny and that he observed the defendant face to face for several minutes. He viewed a lineup on the day following the robbery, but identified no one. He viewed a second lineup on July 14 and at that time identified King and Taylor as the two assailants. He testified that he identified them from their faces, their hair and their clothing, which was the same as they had worn on the morning of the robbery and which he described as including brown T-shirts with bare midriffs. The witness was questioned on cross-examination concerning a prior out-of-court statement, wherein he said he was approached by three youths, and a prior in-court statement which indicated that King was holding the pistol during the robbery. Nasby, however, did not recall making either statement.
Officer Michael Gallagher testified that he and his partner took a statement from Nasby at the scene of the crime which included descriptions of the car and the assailants. The car was registered to John Williams of a North Kostner address and a search of that area failed to disclose the automobile. The vehicle had not been reported stolen. Gallagher was later called as a defense witness and testified that his report showed that the complaining witness had told him that he had been approached by three youths during the robbery but he had no independent recollection of that statement without reference to the report of which he was not the sole author.
Investigator John McMahon of the Chicago Police Department testified that he went to the vicinity of the North Kostner address on the evening of the robbery to search for the suspect car. He observed it parked in an alley; the five persons in the car fled from the police. McMahon chased the two who had been in the front seat and apprehended the occupant of the passenger side. He called to the occupant of the driver's seat to stop; that person stopped momentarily, turned and looked at the officer from a distance of about 25 feet before continuing his flight. McMahon identified that person as Robert King. On July 14 McMahon again observed King and three others seated in an automobile in the area and placed him and Willie Taylor under arrest. The officer testified that King and Taylor wore the same clothing when arrested that they wore at the July 14 lineup, as portrayed in photographs of the lineup. Nasby also identified the photographs and the record suggests that his description of the robbers' clothing matched that worn by them at the time of their arrest and lineup.
King testified in his own behalf and raised the defense of alibi. He stated that he had been at home and in bed at 6 a.m. on July 11, 1973, and that his mother and brothers were present when he awoke at 8 or 8:30 a.m. and that he had told this to the arresting officers. He claimed that he wore a blue T-shirt when arrested, as did his friend Willie Taylor. There was a stipulation that in rebuttal the arresting officer would deny that King told him of the alibi.
The defendant's mother testified that she could not say where he was at 6 a.m. on July 11, but that he should have been home in bed. She could not recall anything special about that date to remind her of his whereabouts.
The trial court reviewed the evidence in great detail and commented that the testimony of the complaining witness was clear, convincing and unswerving, and that it was corroborated by his initial identification to the officers and by the defendant's subsequent association with the suspect car. It was disclosed during the hearing in aggravation and mitigation that King, 18 years of age at the trial and 17 years of age on the date of the incident, had no prior criminal record, that he had been employed and that he had come from a broken home. The court noted the severity of the offense; that the defendant was armed with a shotgun and twice threatened the victim with harm. The court stated that, but for the defendant's youth, it would have adopted the State's recommendation of 8 to 24 years instead of imposing a sentence of 5 to 15 years.
• 1 The foregoing summary of the evidence requires rejection of the defendant's contention that his guilt was not proved beyond a reasonable doubt. His identification as one of the robbers was, as the trial court noted, direct, consistent and convincing. (People v. Lee (1975), 27 Ill. App.3d 712, 327 N.E.2d 574.) It is for the trier of fact to resolve alleged omissions and discrepancies in a complaining witness' testimony. (People v. Winston (1975), 28 Ill. App.3d 237, 328 N.E.2d 49.) The cases cited by the defendant involve questionable identifications and are therefore not applicable to the instant case. We discern no basis to disturb the trial court's determination of guilt.
• 2 The defendant's contention that the sentence imposed is excessive is also without merit. The trial court noted the seriousness of the offense, including the fact that the victim was threatened with a shotgun and that the defendant directed his companion to shoot the victim as the latter was writing down the information that ultimately led to the defendant's arrest. Further, the circumstances disclose a premeditated and well-planned robbery. The defendant and his companions were riding on the streets at 6 a.m. armed with a shotgun and a pistol. He and Taylor alighted from the car at the same time and, as the defendant confronted their victim with a shotgun and announced a holdup, Taylor placed his pistol in the victim's back and commenced taking his property.
The sentence for armed robbery provided by statute is a minimum of 4 years and a maximum of any number of years in excess thereof. (Ill. Rev. Stat. 1973, ch. 38, pars. 18-2(b) and 1005-8-1.) The sentence imposed was within the limits prescribed by the statute and was within the trial court's discretion under the circumstances of this case.
The judgment is affirmed.
Judgment affirmed.
McNAMARA and McGLOON, JJ., concur.
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ONTARIO, Calif. — Pro's Ranch Markets has set its long-term sights on Texas, with particular attention to the Dallas and San Antonio marketplaces, Mike Provenzano, chairman and chief executive officer, told SN.
Pro's operates 12 stores in the West, though it has agreed to sell its four smallest stores in Southern California to Vallarta Supermarkets so it can concentrate on expansion in the Southwest. Of the eight stores that will remain, six are in Phoenix, one is in Albuquerque, N.M., and one is in El Paso, Texas.
"We sold the four California stores because we saw more opportunities elsewhere," Provenzano said.
The company has four other locations under construction: two more in Phoenix, one more in El Paso and one in Las Cruces, N.M. "But our goal is to get into some of the larger cities in Texas, including Dallas and San Antonio," Provenzano said.
"We've already looked around those cities — enough to know what's available for purchase or acquisition — but when we decide to expand to Dallas or San Antonio will depend on the economy and the illegal immigration issue. Right now we're just taking it one day at a time."
While Provenzano declined to pinpoint his overall sales levels, industry estimates put the volume for the 12 Pro's stores at approximately $425 million. He told SN he expects to make up the lost volume at the four new stores he plans to open over the next year.
Of the stores being sold, three are 35,000 square feet, while the other is 25,000 square feet — all smaller than his newer stores, which encompass a range of 45,000 to 60,000 square feet.
Pro's caters to a Hispanic clientele. Earlier this year it was forced to let more than 300 employees at its Phoenix stores go because they were found to be working without proper work authorization documentation.
Pro's announced plans late last month to sell its four stores in California's Central Valley — two in Bakersfield and one each in Delano and Arvin — to Sylmar, Calif.-based Vallarta, which operates 29 stores in Southern California, including seven in the Central Valley. Industry observers estimate Vallarta's volume at $475 million.
John Marquis, chief financial officer for Vallarta, said both chains operate similar stores. Although the four stores being acquired are a little smaller than Vallarta's norm, "they fit nicely within our footprint," he told SN.
The deal is expected to be finalized early next month, Marquis said, and Vallarta plans to close the four stores for a day before reopening under its own banner.
Provenzano said he put the stores up for bids and chose Vallarta as the buyer from among offers by several Hispanic operators for two reasons: "First, it was important that we sell to another member of Unified [Grocers, the Los Angeles-based member-owned cooperative] to keep the volume within the company. It was also important that the stores go to someone I can trust to take care of our employees."
Provenzano said he expects there may be opportunities for his company to come back into California at some time, "but when we come back, we really want to focus on Los Angeles."
Pro's has operated the four Central Valley stores for just over 10 years. Provenzano said he acquired the stores in Delano and Arvin from Safeway, one in Bakersfield from Lucky and the other Bakersfield store from an independent operator.
As he expands in Arizona, New Mexico and Texas, "all I see is Wal-Mart," Provenzano said, "and from what I've seen in Phoenix and El Paso, Wal-Mart seems to be totally realigning its supercenters to look like the kind of stores we operate, with bakeries, hot foods and cremerias."