Bryant v. Miller

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THOMAS BRYANT,

Plaintiff, No. 18-CV-10198 (KMK)

v. OPINION & ORDER

MICHAEL CAPRA, Superintendent; MS. HICKSON,

Defendants.

Appearances:

Thomas Bryant

Ossining, NY

Pro Se Plaintiff

Jonathan James Wilson, Esq.

Maria Barous Hartofilis, Esq.

New York State Office of The Attorney General

New York, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Thomas Bryant (“Plaintiff”), currently an inmate at Sing Sing Correctional Facility

(“Sing Sing”), brings this pro se Action, pursuant to 42 U.S.C. § 1983 and the Religious Land

Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc-1, et seq., against

Michael Capra (“Capra”) and Ms. Hickson (“Hickson”) (collectively, “Defendants”), alleging

that Defendants violated Plaintiff’s constitutional rights when they purportedly prohibited

Plaintiff from wearing his dreadlocks up with nothing securing them while in the prison yard.

(See Third Am. Compl. (“TAC”) (Dkt. No. 54).) Before the Court is Defendants’ Motion To

Dismiss the TAC (the “Motion”). (See Not. of Mot. (Dkt. No. 65).) For following reasons, the

Motion is granted.

I. Background

A. Factual Background

The following facts are taken from Plaintiff’s TAC and exhibits, (TAC), and from

Plaintiff’s Opposition and Sur-Reply briefs, (Mem. of Law in Supp. of Pl.’s Opp’n (“Pl.’s

Mem”) (Dkt. No. 69); Sur-Reply Mem. of Law. in Supp. of Pl.’s Opp’n (“Pl.’s Sur-Reply”) (Dkt.

No. 72)).1 They are assumed true for purposes of resolving the instant Motion.

At all relevant times, Plaintiff was incarcerated at Sing Sing. (TAC 1).2 Plaintiff is an

atheist whose beliefs are sincerely held; “his practices are centered on remaining free from

religious beliefs and practices.” (Id. at 2.) Plaintiff has floor-length dreadlocks, which he has

been growing for 25 years. (Id.)

On June 13, 2018, while Plaintiff was playing basketball at Sing Sing, Hickson

approached him and said that he could not “have his hair up with nothing securing it unless it

was with a religious hair covering.” (Id. (alteration omitted).) Plaintiff construed this as an

order presenting him with a choice: either (1) “take his dreadlocks out [of] the wrapped fashion

he had secured them in,” or (2) “if he wanted to wear them like that[,] [they] had to have a

religious hair covering,” such as a Rastafarian crown or tsalot-kob. (Id. at 2–3.) According to

Plaintiff, this order was limited to the prison yard, as Plaintiff continues to wear his dreadlocks in

a wrapped fashion “when moving throughout the facility,” including while assisting at a TED X

event with several prominent guests in attendance. (Id. 5–6; Pl.’s Mem. 9.) Pursuant to New

1 “[T]he mandate to read the papers of pro se litigants generously makes it appropriate to

consider [P]laintiff’s additional materials, such as his opposition memorandum.” Gadson v.

Goord, No. 96-CV-7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997) (citing Gil v.

Mooney, 824 F.2d 192, 195 (2d Cir.1987)).

2 In referencing the TAC and its exhibits, the Court refers to the ECF-generated page

number in the upper right-hand corner.

York Department of Corrections and Community Supervision (“DOCCS”) institutional rule

106.10, this was an “order[] of [d]epartmental personnel,” which Plaintiff was required to “obey

. . . promptly and without argument.” (TAC 3, 15.) Plaintiff alleges that this order violated

DOCCS Directive 4202, which prohibits imposing burdens on the ability of prisoners to worship

as they please, (id. at 3, 18), and was issued pursuant to an “unwritten provision” that Plaintiff

may wear his dreadlocks up only if he wears a religious hair covering, (id. at 7).

The same day, Plaintiff wrote a grievance, requesting “an exemption from Hickson’s

order that would enable him to wrap his dreadlocks up without a religious hair covering while in

the yard.” (Id. at 3.) This grievance alerted Hickson that “her actions were detrimental to

[P]laintiff’s well[-]being.” (Pl.’s Mem. 15.) Non-party Q. Quick, the Inmate Grievance

Supervisor, investigated Plaintiff’s grievance. (TAC 3.) On July 10, 2018, the Inmate Grievance

Resolution Committee (“IRGC”) decided, consistent with DOCCS Directive 4914, that

“[i]nmates wearing below shoulder length dreadlocks must tie them back in a pony tail with

barrette, rubber band, or other fastening device approved by the Superintendent.” (Id.; see also

id. at 23.) The IRGC did not otherwise address Hickson’s order. (Id. at 23.) Plaintiff appealed

the IRGC decision to Capra, and Capra “rubberstamped [the] IRGC’s decision.” (Id. at 3–4; see

also id. at 25.) Plaintiff unsuccessfully appealed the IRGC’s and Capra’s decisions to the

Central Office Review Committee (“CORC”). (Id. at 4; see also id. at 26.)

Because his dreadlocks are “too long for a ponytail,” the hair ties approved pursuant to

Directive 4914 would not prevent Plaintiff’s hair from touching the ground. (Pl.’s Mem. 3.)

Deprived by Hickson’s and Capra’s orders of a clean and hygienic manner consistent with his

atheistic beliefs to protect his long hair, Plaintiff has not gone outside to the yard for exercise,

fresh air, or recreation for “26 months and counting.” (Pl.’s Sur-Reply 4; see also TAC 5, 7.)

This has caused Plaintiff “to suffer serious physical (a substantial amount of weight loss, aches

and pains to his joints, fatigue, and muscle . . . atrophy), mental (suicidal ideation, mood swings,

stress, and depression), and emotional injuries (sadness and frustration).” (TAC 5; see also id. at

6–7.) In addition, Plaintiff suffers from pre-existing injuries and severe mental and personality

disorders, and exercise and recreational activities are recommended as part of his treatment plan.

(Pl.’s Mem. 16.) It is unsafe for Plaintiff to exercise in his cell because it is small, poorly

ventilated, and contains a variety of furnishings fixed to the wall and floor. (Id. at 16–17.)

Further, Plaintiff does not have access to a gym. (TAC 9; see also Pl.’s Mem. at 17.)

Plaintiff alleges that Hickson’s and Capra’s enforcement of the unwritten exemption for

religious hair coverings violates the Free Exercise and Establishment Clauses of the First

Amendment to the U.S. Constitution, and burdens his ability to worship as he pleases in violation

of RLUIPA. (TAC 7–8.) He alleges that the same violates the Equal Protection Clause, because

it treats religious inmates with dreadlocks differently from non-religious inmates with

dreadlocks. (Id. at 8.) Finally, Plaintiff alleges that his inability to exercise and resulting injuries

violate his Eighth Amendment right to be free from cruel and unusual punishment. (Id. at 6–7.)

Plaintiff seeks declaratory judgment that Defendants’ acts are unconstitutional, an

injunction permitting him to wear his hair wrapped up in the yard with no religious covering, and

$20,000 in compensatory damages and $20,000 in punitive damages against each Defendant

pursuant to 41 U.S.C. § 1983. (Id. at 8–9.)

B. Procedural Background

Because the Court discussed the procedural background in its previous Opinion and

Order (the “January Opinion”), (see Op. & Order (“Jan. Op.”) 4–5 (Dkt. No. 49)), the Court

describes the procedural history of this case beginning with the January Opinion. On January 30,

2020, the Court issued an Opinion & Order dismissing Plaintiff’s SAC without prejudice. (See

Jan. Op. 25; see also Am. Compl. (“SAC”) (Dkt. No. 33-1).) Plaintiff was given 30 days to file a

third amended complaint. (Jan Op. 25.) Because the January Opinion was inadvertently not

mailed to Plaintiff, the Court on March 3, 2020 issued an Order (1) directing the Clerk of Court

to mail the January Opinion to Plaintiff, and (2) providing Plaintiff until April 3, 2020 to file a

third amended complaint. (Dkt. No. 50.) In a letter dated March 25, 2020, Plaintiff

acknowledged receipt of the Court’s March 3 Order, stated that he still had not received the

January Opinion, and requested an extension of time to file a third amended complaint. (Dkt.

No. 51.) On March 31, 2020, the Court granted Plaintiff’s request, (Dkt. No. 53), and Plaintiff’s

TAC was dated April 30, 2020 and filed on May 18, 2020, (TAC). On June 1, 2020, Defendants

wrote a letter requesting a briefing schedule for a motion to dismiss. (Dkt. No. 55.) On June 12,

2020, the Court ordered a briefing schedule. (Dkt. No. 56.) On July 17, 2020, Defendants

submitted their Motion To Dismiss. (See Not. of Mot.; Defs.’ Mem. of Law in Supp. of Mot.

(“Defs.’ Mem.”) (Dkt. No. 66).) Plaintiff’s opposition papers were dated August 25, 2020 and

filed on August 31, 2020. (Pl.’s Mem.; see also Dkt. No. 68.) On September 14, 2020,

Defendants submitted a reply. (Reply Mem. of Law in Further Supp. of Defs.’ Mot. (“Defs.’

Reply”) (Dkt. No. 70).) Plaintiff’s sur-reply was dated September 24, 2020 and filed on

September 29, 2020. (Pl.’s Sur-Reply.)

II. Discussion

Defendants argue that Plaintiff has not alleged their personal involvement, (Defs.’ Mem.

6–8), that Plaintiff has not alleged a First Amendment claim, (id. at 8–13), that Plaintiff has not

alleged an Equal Protection claim, (id. at 13–14), that Plaintiff has not alleged an Eighth

Amendment claim, (id. at 14 – 17), that Defendants are entitled to qualified immunity, (id. at 17–

19), and that Plaintiff’s claims should be dismissed with prejudice, (id. at 19). The Court

addresses each argument to the extent necessary.

A. Standard of Review

The Supreme Court has held that although a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions

devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Rather, a

complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the allegations in the complaint,” id. at

563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its

face,” id. at 570, if a plaintiff has not “nudged [his] claim[] across the line from conceivable to

plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining

whether a complaint states a plausible claim for relief will . . . be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense. But where

the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to

relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at

678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading

regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions.”).

“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the

factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam), and “draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T&M Prot.

Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,

699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a

district court must confine its consideration to facts stated on the face of the complaint, in

documents appended to the complaint or incorporated in the complaint by reference, and to

matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d

99, 107 (2d Cir. 1999) (quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d

306, 317 (S.D.N.Y. 2016) (same). However, when the complaint is from a pro se plaintiff, the

Court may consider “materials outside the complaint to the extent that they are consistent with

the allegations in the complaint.” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at

*4 n.3 (S.D.N.Y. Aug. 2, 2013) (quotation marks omitted), including, “documents that a pro se

litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at

*4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted), statements by the plaintiff “submitted in

response to [a] defendant’s request for a pre-motion conference,” Jones v. Fed. Bureau of

Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), “documents

either in [the] plaintiff[’]s possession or of which [the] plaintiff[] had knowledge and relied on in

bringing suit,” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation

marks omitted), and “his opposition memorandum,” Gadson, 1997 WL 714878, at *1 n.2.

Where, as here, a plaintiff proceeds pro se, the court must “construe[] [his] [complaint]

liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of

Am., 723 F.3d 399, 403 (2d Cir. 2013) (quotation marks omitted). However, “the liberal

treatment afforded to pro se litigants does not exempt a pro se party from compliance with

relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559

(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,

605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding

procedural rules and to comply with them.” (italics and quotation marks omitted)).

B. Analysis

Plaintiff’s TAC fails to address many of the deficiencies identified in the January

Opinion.3 For example, with respect to his RLUIPA and Free Exercise Clause claims, the Court

concluded that Plaintiff “failed to plausibly allege that any [free exercise] rights were

substantially burdened.” (Jan. Op. 11.) This was in part because Plaintiff had “not demonstrated

that his desire to wrap his hair atop his head . . . is connected to his atheistic beliefs.” (Id. at 12

(quoting Bryant v. Miller, No. 18-CV-494, 2019 WL 5273210, at *7 (N.D.N.Y. June 18, 2019),

adopted by 2019 WL 4267376 (N.D.N.Y. Sept. 10, 2019), appeal dismissed 2020 WL 1545856

(2d Cir. Feb. 26, 2020)).) Here, in his TAC and opposition papers, Plaintiff still does not allege

that wearing his hair up with no hair covering or a non-religious hair covering is part of his

3 The TAC does remedy some of the deficiencies identified in the January Opinion. For

example, regarding the Establishment Clause claim, in the SAC Plaintiff did not allege that he

had “sought to obtain approval for a secular head covering and been denied due to his non-

religious status.” (Jan. Op. 14.) In the TAC, by contrast, Plaintiff alleges that he “petitioned

CORC to . . . allow him to . . . wear a non-religious hair covering, or to wear his dreadlocks up

without any covering, but was denied.” (TAC 7.)

practice of atheism.4 (See generally TAC.) With respect to his Establishment Clause claim, the

Court found that “Directive 4914’s attempt to accommodate religions that require head covers

does not violate the Establishment Clause,” (Jan. Op. 14), and that Plaintiff’s claim is “properly

anchored in the Free Exercise Clause,” (id. at 15 (quoting Brown v. Griffin, No. 18-CV-5439,

2019 WL 4688641, at *7 n.4 (S.D.N.Y. Sept. 25, 2019))). Plaintiff’s TAC and opposition papers

contain no new allegations that change this conclusion. The Court found the SAC Equal

Protection claim “derivative and duplicative” of Plaintiff’s First Amendment claim, and held that

Plaintiff is not “similarly situated” to inmates that cover their dreadlocks for religious reasons.

(Jan. Op. 17 (citing Barnes v. Fidele, 760 F. Supp. 2d 296, 302 (W.D.N.Y. 2011)).) The TAC is

subject to dismissal for the same reasons. Finally, with respect to his Eighth Amendment claim,

the Court found no allegation that “Plaintiff’s lack of access to the exercise yard occurred

through anything other than his own inaction.” (Id. at 24.) Here, because he has not alleged a

4 While Plaintiff does allege that the allowable alternatives are impracticable due to the

length of his dreadlocks, (see Pl.’s Mem. 3), he does not allege that floor-length dreadlocks are

part of his practice of atheism. The absence of any alleged religious basis for Plaintiff’s

dreadlocks distinguishes this case from Amaker v. Goord, where the court found that requiring an

inmate to either cut his hair or forgo his religious affiliation substantially burdened his religious

practice. No. 06-CV-490, 2007 WL 4560596, at *6 (W.D.N.Y. Mar. 9, 2007), report and

recommendation adopted, 2007 WL 4560595 (W.D.N.Y. Dec. 18, 2007). In contrast to the

instant case, in Amaker the plaintiff alleged that he “sincerely believe[d] that he should wear

dreadlocks as part of his religious practice.” Id. Here, even if prison regulations allow inmates

“to grow their dreadlocks to any length desired,” (Pl.’s Sur-Reply 6), the Constitution does not—

in the absence of a religious justification—guarantee Plaintiff a similar right, see Cowart v.

McGinnis, No. 02-CV-817, 2007 WL 4030000, at *8 (W.D.N.Y. Nov. 15, 2007) (finding that the

plaintiff had no protected liberty interest in “wearing his hair in a particular style”); cf. Pilgrim v.

Artus, No. 07-CV-1001, 2010 WL 3724883, at *17 (N.D.N.Y. Mar. 18, 2010) (finding in the

qualified immunity context that “neither the Supreme Court nor the Second Circuit has ruled that

. . . non-Rastafarian inmates are . . . entitled to” First Amendment protection for dreadlocks

(emphasis omitted)), report and recommendation adopted, 2010 WL 3724881 (N.D.N.Y. Sept.

17, 2010). Thus, Plaintiff fails to allege an injury to his constitutional rights in challenging “the

ambiguity/constitutionality of DOCCS hair policy,” which allows dreadlocks of any length but

does not allow “added protection for . . . dreadlocks when a ponytail will not suffice.” (TAC 7.)

constitutionally protected interest in floor-length dreadlocks, the Court similarly finds that it is

Plaintiff’s choice, and not the action or inaction of Defendants, which interferes with his

“meaningful opportunity for physical exercise,” see McCray v. Lee, 963 F.3d 110, 120 (2d Cir.

2020), causing Plaintiff’s alleged medical problems.5

“The mere filing of an Amended Complaint does not entitle Plaintiff to relitigate his

claims absent new factual allegations.” Weslowksi v. Zugibe, 96 F. Supp. 3d 308, 316 (S.D.N.Y.

2015), aff’d, 626 F. App’x 20 (2d Cir. 2015). Because the factual claims in the TAC are

materially identical to those in the SAC, “the law of the case doctrine counsels against

reconsideration of the Court’s . . . dismissal of the [Second Amended] Complaint.” Id.

Accordingly, and as described above, Plaintiff’s claims are dismissed for the same reasons they

were dismissed in the January Opinion. See Perkins v. Perez, No. 17-CV-1341, 2020 WL

248686, at *4–5 (S.D.N.Y. Jan. 16, 2020) (applying the law-of-the-case doctrine to dismiss

portions of a pro se complaint where the two pleadings at issue were “substantially identical”);

Mateo v. Dawn, No. 14-CV-2620, 2016 WL 5478431, at *4 (S.D.N.Y. Sept. 28, 2016) (same);

Guttilla v. City of New York, No. 14-CV-156, 2016 WL 1255737, at *3 (S.D.N.Y. Mar. 29,

2016) (same).6

5 Consistent with the January Opinion, Plaintiff’s claims that “corrections staff failed to

follow prison regulations are not cognizable under § 1983.” (Jan. Op. 12 (citation, alteration and

quotation marks omitted); see Pl.’s Mem. 19; and TAC 3, 18.)

6 Because the Court decides the Motion on the merits of Plaintiff’s claims in the SAC, it

does not reach the arguments raised by Defendants regarding personal involvement or qualified

immunity.

I. Conclusion

For the reasons stated above, Defendants’ Motion To Dismiss is granted. Plaintiffs

claims are dismissed with prejudice. This is the second time adjudicating his claims, and

Plaintiff has not fixed the problems identified by the Court in the January Opinion. See Denny vy.

Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff was not entitled to “a third

go-around”); Melvin v. County of Westchester, No. 14-CV-2995, 2016 WL 1254394, at *24 n.19

(S.D.N.Y. Mar. 29, 2016) (granting motion to dismiss with prejudice where “[the] [p]laintiff has

already had two bites at the apple, and they have proven fruitless” (citation, alterations and

quotation marks omitted)).

The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No.

65), to mail a copy of this Opinion & Order to Plaintiff at the address listed on the docket, and to

close this case.

SO ORDERED.

DATED: January 31 , 2021 sgh

White Plains, New York {

KENNETH M. KARAS

UNITED STATES DISTRICT JUDGE

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