Kravitz v. State of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JAY KRAVITZ,

Plaintiff,

No. 16-CV-8999 (KMK)

v.

OPINION & ORDER

S. PURCELL, A. BAKER, L. ANDREU,

D. McCRAY, G. ST. VICTOR,

D. McMAHON, OFFICER WASEILER, and

SGT. ZUPAN,

Defendants.

Appearances:

Jay S. Kravitz

Earlton, NY

Pro Se Plaintiff

Amanda Yoon, Esq.

Office of the New York State Attorney General

New York, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Jay S. Kravitz (“Plaintiff”), proceeding pro se, brings this Action against Samuel Purcell

(“Purcell”), Adolphus Baker (“Baker”), Luis Andreu (“Andreu”), David McCray (“McCray”),

Gregory St. Victor (“St. Victor”), David McMahon (“McMahon”), Joseph Wassweiler

(“Wassweiler”), and John Zupan (“Zupan”; together, “Defendants”), pursuant to 42 U.S.C.

§ 1983, based on Defendants’ alleged violation of Plaintiff’s First Amendment free exercise

rights in prohibiting him from observing the Jewish holiday of Shavuot while incarcerated at the

Downstate Correctional Facility in Fishkill, NY (“Downstate”). (See generally Third Am.

Compl. (“TAC”) (Dkt. No. 80).)1 Before the Court are Defendants’ Motion for Summary

Judgment (the “Motion”) and Plaintiff’s Cross-Motion for Summary Judgment (the “Cross-

Motion”). (See Defs.’ Not. of Mot. (Dkt. No. 127); Pl.’s Not. of Cross-Mot. (Dkt. No. 138).)

For the foregoing reasons, Defendants’ Motion is granted and Plaintiff’s Cross-Motion is denied.

I. Background

A. Factual Background

The following facts are taken from the Parties’ statements pursuant to Local Rule 56.1,

(see Defs.’ Rule 56.1 Statement (“Defs.’ 56.1”) (Dkt. No. 130); Pl.’s Rule 56.1 Statement (“Pl.’s

56.1”) (Dkt. No. 141); Defs.’ Rule 56.1 Counter-Statement (“Defs.’ Counter 56.1”) (Dkt.

No. 144)), and the admissible evidence submitted by the Parties. 2 The facts as described below

are in dispute only to the extent indicated.

1 The Court notes that Plaintiff has incorrectly identified Wassweiler as “Waseiler.” (See

TAC.)

2 Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise

statement, in numbered paragraphs, of the material facts as to which the moving party contends

there is no genuine issue to be tried.” Local Civ. R. 56.1(a). The non-moving party, in turn,

must submit “a correspondingly numbered paragraph responding to each numbered paragraph in

the statement of the moving party, and if necessary, additional paragraphs containing a separate,

short[,] and concise statement of additional material facts as to which it is contended that there

exists a genuine issue to be tried.” Local Civ. R. 56.1(b). “Pro se litigants are not excused from

meeting the requirements of Local Rule 56.1,” Freistat v. Gasperetti, No. 17-CV-5870, 2021

WL 4463218, at *1 (E.D.N.Y. Sept. 29, 2021) (italics, alteration, and citation omitted), and “[a]

non[-]moving party’s failure to respond to a Rule 56.1 statement permits the court to conclude

that the facts asserted in the statement are uncontested and admissible,” T.Y. v. N.Y.C. Dep’t of

Educ., 584 F.3d 412, 418 (2d Cir. 2009); see also Biberaj v. Pritchard Indus., Inc., 859

F. Supp. 2d 549, 553 n.3 (S.D.N.Y. 2012) (same). Here, Defendants filed and served their

Statement pursuant to Rule 56.1, (see Defs.’ 56.1, see also Dkt. No. 127-1), and filed and served

a Statement notifying Plaintiff of the potential consequences of not responding to the Motion, as

required by Local Rule 56.2, (see Dkt. Nos. 137, 127-1). While Plaintiff submitted a 56.1

Statement in support of his Cross-Motion, (see Pl.’s 56.1)—to which Defendants responded, (see

Defs.’ Counter 56.1)—he did not submit a Rule 56.1 Counter-Statement in response to

Defendants’ 56.1 Statement. As such, the Court may conclude that the facts in Defendants’ 56.1

Statement are uncontested and admissible. See Brandever v. Port Imperial Ferry Corp., No. 13-

1. Plaintiff’s Background & Incarceration at Downstate

Plaintiff is currently and has been a member and practitioner of the Jewish faith since

birth. (Defs.’ 56.1 ¶ 1; Pl.’s 56.1 ¶ 2; Defs.’ Counter 56.1 ¶ 2; see also Decl. of Amanda Yoon in

Supp. of Mot. (“Yoon Decl.”) (Dkt. No. 129) Ex. A (“Pl. Dep.”), at 34:21–25 (Dkt. No. 129-1).)

While Plaintiff’s current mode of religious observance does not conform with Orthodox Jewish

practices, Plaintiff was raised observing Orthodox Jewish practices, regularly engages in Jewish

prayer and study, routinely attends shul, observes all High Holy Days in addition to all other

CV-2813, 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014) (concluding that because the pro

se plaintiff did not submit a Rule 56.1 statement in response to the defendant’s statement of facts,

“there [were] no material issues of fact”); Anand v. N.Y. State Div. of Hous. & Cmty. Renewal,

No. 11-CV-9616, 2013 WL 4757837, at *7 (S.D.N.Y. Aug. 29, 2013) (same).

Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when

confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344 (2d

Cir. 1988), the Court will “in its discretion opt to conduct an assiduous review of the record,”

including Plaintiff’s 56.1 Statement, affidavit, and deposition testimony, when deciding the

instant Motion, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (quotation marks

omitted); see also Day v. MTA N.Y.C. Transit Auth., No. 17-CV-7270, 2021 WL 4481155, at *9

(S.D.N.Y. Sept. 30, 2021) (“[W]here a pro se plaintiff fails to submit a proper Rule 56.1

statement in opposition to a summary judgment motion, the [c]ourt retains some discretion to

consider the substance of the plaintiff’s arguments, where actually supported by evidentiary

submissions.” (italics and citation omitted)); Berry v. Marchinkowski, 137 F. Supp. 3d 495, 502

n.1 (S.D.N.Y. 2015) (considering “the statements and documents in [the] [p]laintiff’s opposition

papers to determine if there are any material issues of fact based on the evidence in the record,”

but disregarding factual assertions that “do not contain citations to the record, or are not

supported by the citations in the record”); Houston v. Teamsters Local 210, Affiliated Health &

Ins. Fund-Vacation Fringe Benefit Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y. 2014) (“Although

[the] plaintiffs did not file a Rule 56.1 statement, the [c]ourt has independently reviewed the

record to ensure that there is uncontroverted evidence to support the paragraphs referenced in

[the] defendants’ Rule 56.1.”); Pagan v. Corr. Med. Servs., No. 11-CV-1357, 2013 WL

5425587, at *2 (S.D.N.Y. Sept. 27, 2013) (explaining that “[t]he [c]ourt ha[d] considered the

[motions for summary judgment] in light of the entirety of the record to afford [the pro se]

[p]laintiff the special solicitude to which he [was] entitled” where the plaintiff failed to submit a

Rule 56.1 response).

Where possible, the Court has relied on the undisputed facts in the Parties 56.1

submissions. However, direct citations to the record have also been used where relevant facts

were not included in any of the Parties’ Rule 56.1 submissions, or where the Parties did not

accurately characterize the record.

Jewish holidays, and adheres to many Jewish laws, such as the wearing of a kippah. (See Pl.

Dep. 35:1–41:20.)

Plaintiff was admitted to Downstate in May 2014 following a parole violation, (Defs.’

56.1 ¶ 3; see also Pl. Dep. 23:2–4, 49:10–13), at which time he notified the intake officers that he

practiced Judaism and wished to continue his religious practice while incarcerated; as a result,

Plaintiff was registered as a Jewish inmate and was permitted to keep his religious prayer books,

tallit, and tefillin, (Defs.’ 56.1 ¶ 4; Pl.’s 56.1 ¶¶ 3–4; Defs.’ Counter 56.1 ¶¶ 3–4). While

Plaintiff was incarcerated at Downstate, he was provided with kosher meals and participated in

prayers with a Rabbi who visited the facility on a weekly basis. (Defs.’ 56.1 ¶¶ 5–6.)

2. The June 3, 2014 and June 4, 2014 Incidents

Shavuot is one of three major festivals in Judaism, alongside Passover and Sukkot, and is

celebrated over two days with festive meals and prayer services. (Defs.’ 56.1 ¶ 7; Pl.’s 56.1

¶¶ 5–7.) In 2014, Shavuot began on the evening of June 3 and ended on the evening of June 5.

(Pl.’s 56.1 ¶ 8; Defs.’ Counter 56.1 ¶ 8.) Per the 2014 New York State Department of

Corrections and Community Supervision (“DOCCS”) Religious Holy Day Calendar, Jewish

inmates were scheduled to have 1 hour and 45 minutes for services and meals on the evening of

June 3 and June 4 for Shavuot. (Defs.’ 56.1 ¶ 8; Pl.’s 56.1 ¶¶ 8–9; Defs.’ Counter 56.1 ¶¶ 8–9.)

The Rabbi associated with the facility submitted an application for a special religious event for

Shavuot, which was approved; Jewish inmates were scheduled to have festive meals at the #4

Dining Room from 8pm to 10pm on June 3 and June 4, 2014. (Defs.’ 56.1 ¶ 9; Pl.’s 56.1 ¶¶ 10–

11; Defs.’ Counter 56.1 ¶¶ 10–11; see also Yoon Decl. Ex. C (Dkt. No. 129-3).)

On June 3, 2014, Plaintiff was released from his housing unit—Block 3a in Complex 3—

at approximately 8pm to observe Shavuot. (Defs.’ 56.1 ¶¶ 10–11; Pl.’s 56.1 ¶ 13; Defs.’ Counter

56.1 ¶ 13.) Plaintiff then walked to what Plaintiff refers to as a “staging area” and what

Defendants identify as the East Lobby of Complex 3. (Defs.’ 56.1 ¶ 12; Pl.’s 56.1 ¶ 13; Defs.’

Counter 56.1 ¶ 13.) Rather than continue on to the dining hall, Plaintiff and the other Jewish

inmates were given a kosher meal that consisted of a peanut butter sandwich in a brown bag

while standing in the East Lobby. (Defs.’ 56.1 ¶ 13; Pl.’s 56.1 ¶ 15.) Plaintiff claims that

correction officers “literally tossed” the sandwiches to Plaintiff and the other inmates while using

profanity. (Pl.’s 56.1 ¶ 15; Pl. Dep. 67:11–68:8.) At approximately 8:25pm, Plaintiff walked

back from East Lobby to his housing block; Plaintiff ate his meal and prayed in his cell. (Defs.’

56.1 ¶ 14; Pl.’s 56.1 ¶ 15; see also Pl. Dep. 83:8–20; Defs.’ Counter 56.1 ¶ 28.)

Plaintiff wrote letters to the facility superintendent and the director of religious

programming that evening to express his frustration that he and the other Jewish inmates were

not provided with the 1 hour and 45 minutes allowed under DOCCS policy to gather, eat, and

pray. (Pl. Dep. 84:25–85:21; see also Pl.’s 56.1 ¶ 19.) Plaintiff claims that the following

morning, on June 4, the facility superintendent and the director of religious programming

responded to Plaintiff’s letters by visiting his cell and assuring him that he would have an

opportunity to properly celebrate the second night of Shavuot that evening. (Pl. Dep. 85:16–

86:16; see also Pl.’s 56.1 ¶ 20.)

On the evening of June 4, Plaintiff was released from his housing block at around 7:50pm

to observe the second night of Shavuot, and was escorted to the #4 Dining Room. (Defs.’ 56.1

¶ 15.) Plaintiff and the other Jewish inmates were provided with more substantial kosher meals,

consisting of Challah bread, grape juice, and a hot meal, and Plaintiff was asked by other Jewish

inmates to lead the group in Jewish prayers. (Defs.’ 56.1 ¶ 17; Pl.’s 56.1 ¶¶ 21–22; Defs.’

Counter 56.1 ¶¶ 21–22.) Plaintiff began to lead the group in prayers, (Pl.’s 56.1 ¶ 23; Defs.’

Counter 56.1 ¶ 23), but Plaintiff claims that the group was interrupted by correction officers who

told Plaintiff that they did not have time for the inmates’ prayers and pushed the group to eat

quickly, again using profanity, (Pl.’s 56.1 ¶ 24; Pl. Dep. 92:5–99:17). Plaintiff returned to his

housing block at approximately 8:45pm. (Defs.’ 56.1 ¶ 18; Pl.’s 56.1 ¶ 24; see also Defs.’

Counter 56.1 ¶ 30.)

3. Certain Defendants’ June 3, 2014 and June 4, 2014 Assignments

Zupan did not work at Downstate on June 3, 2014. (Defs.’ 56.1 ¶ 19.) On June 4, 2014,

Zupan worked as a kitchen sergeant from 12:30pm to 8:30pm, though from approximately 5pm

to 8:30pm, Zupan supervised correction officers running medication and other escorting duties

outside of the kitchen area. (Id. ¶¶ 20–22.) Zupan was not assigned to handle or supervise any

Jewish or other religious services, and was not in the #4 Dining Room on June 4, 2014. (Id.

¶¶ 23–24.)

Purcell was assigned to the Complex 3 Recreation Room—the gym used by inmates

housed in Complex 3—from 1pm to 9pm on June 3 and 4, 2014, and was responsible for

ensuring the security, custody, and control of the inmates using the Complex 3 Recreation Room.

(Id. ¶¶ 25–27.) Purcell was not assigned to handle or oversee any Jewish or other religious

services on either day, and was in neither the East Lobby nor the #4 Dining Room on either

evening. (Id. ¶ 28.)

Baker was assigned to #3 Dining Room/Medication from 1pm to 9pm on June 3 and 4,

2014, and was responsible for ensuring the security, custody, and control of the inmates eating

dinner in #3 Dining Room until 6:30pm and to escort inmates from their housing units in

Complex 3 to medications thereafter. (Id. ¶¶ 29–30.) Baker was not assigned to handle any

Jewish or other religious service on either day, and was in neither the East Lobby nor the #4

Dining Room on either evening. (Id. ¶ 31.)

St. Victor was assigned as a “first officer” for Housing Block 3a—Plaintiff’s housing

block in Complex 3—from 3pm to 11pm on June 3 and 4, 2014, and was responsible for opening

and closing gates and individual cells in the housing unit and to ensure the security, custody, and

control of the inmates in Housing Block 3a. (Id. ¶¶ 32–33.) St. Victor was not assigned to

handle any Jewish or other religious service on either day, and was in neither the East Lobby nor

the #4 Dining Room on either evening. (Id. ¶ 35.)

McCray was not at Downstate on June 4, 2014 after 3pm. (Id. ¶ 36.) McCray was

assigned to Complex 3 Patrol from 7am to 11pm on June 3, 2014, and was responsible for

escorting inmates housed in Complex 3 to the facility’s Office of Mental Health and other parts

of the facility. (Id. ¶¶ 37–38.) McCray was not assigned to handle any Jewish or other religious

service on either day, and was not in the East Lobby on the evening of June 3. (Id. ¶ 39.)

Andreu was assigned to Medication / Keeplock / Recreation on June 3 and 4, 2014 from

1pm to 9pm, and was responsible for ensuring the security, custody, and control of the keeplock

inmates who were using the outdoor recreation area; assisting dining services at #3 Dining Room

from 4pm to 5pm; and escorting inmates housed in the housing units in Complex 3 to

medications. (Id. ¶¶ 40–41.) Andreu was not assigned to handle any Jewish or other religious

service on either day, and was in neither the East Lobby nor the #4 Dining Room on either

evening. (Id. ¶ 42.)3

3 Plaintiff disputes Defendants’ claims that Zupan, Purcell, Baker, St. Victor, McCray,

and Andreu were not present for the incidents at issue, the evidentiary basis for which is his own

affidavit. (See Pl.’s 56.1 ¶¶ 14–17, 21, 24.) However, “where a party relies on affidavits . . . to

establish facts” on summary judgment, the statements “‘must be made on personal knowledge,’”

DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting FED. R. CIV. P. 56(c)(4)), and

Plaintiff admitted at his deposition that he does not have personal knowledge as to whether

Zupan, Purcell, Baker, St. Victor, McCray, or Andreu were involved in the incidents at issue.

(See Pl. Dep. 107:21–112:18.) In fact, Plaintiff stated repeatedly at his deposition that while

B. Procedural History

Plaintiff’s initial Complaint was docketed on November 18, 2016. (See Dkt. No. 2.)

Plaintiff’s request to proceed in forma pauperis was granted on November 21, 2016. (See Dkt.

No. 3.) The Court entered a Valentin order on November 30, 2016, (see Dkt. No. 4), to which

Defendants responded on February 15, 2017, identifying Purcell, Baker, Andreu, McCray, and

St. Victor as the “escort officers” assigned to the gym and lobby areas in Complex 3 at

Downstate, which the facility suggested may have been the area in which the alleged incident

took place; McMahon and Wassweiler as the “officers assigned to the Jewish holiday services”;

and Zupan as the “area supervisor,” (Dkt. No. 11).

On May 10, 2017, Plaintiff’s First Amended Complaint (“FAC”) was docketed, bringing

seven separate causes of action against Purcell, Baker, Andreu, McCray, St. Victor, McMahon,

Wassweiler, and Zupan in addition to New York State Department of Corrections Commissioner

Anthony Annucci (“Annucci”), ex officio. (See First Am. Compl. (Dkt. No. 17).) On

August 24, 2017, Annucci filed a pre-motion letter in anticipation of filing a motion to dismiss

the FAC, in which Annucci noted that none of the other defendants named in the FAC had been

served. (See Dkt. No. 21.) Plaintiff then sought an order of service to serve the unserved

defendants, (see Dkt. No. 23), which the Court entered on September 15, 2017, (see Dkt.

No. 24).

incarcerated at Downstate, Plaintiff made a point of not making eye contact with any correction

officers or learning any correction officer’s identity. (See, e.g., id. at 72:7–16 (“I don’t think

there was anyone [B]lack. I don’t know that if there was a Latino. I think they were of white

race. But again, I don’t pay attention. They are blue. They are blue COs. And I call them CO.

And they could be a man, woman, any color, height, small, skinny, fat, don’t matter. I ain’t

paying no attention. I don’t look at them. I look down.”); 80:2–5 (“I don’t care who they are.

They just [sic] a pair of blue pants and black shoes, and I pay no attention to the name. I don’t

care who they are.”).) As such, Plaintiff’s affidavit is insufficient to create a factual dispute as to

whether Zupan, Purcell, Baker, St. Victor, McCray, or Andreu were present for the incidents at

issue.

On February 27, 2018, Plaintiff’s Second Amended Complaint (“SAC”) was docketed,

again bringing seven separate causes of action, again against Purcell, Baker, Andreu, McCray,

St. Victor, McMahon, Wassweiler, and Zupan in addition to Annucci (the “SAC Defendants”).

(See Second Am. Compl. (“SAC”) (Dkt. No. 45).) On March 9, 2018, SAC Defendants filed a

pre-motion letter in anticipation of filing a motion to dismiss the SAC, (see Dkt. No. 48), and the

Court set a briefing schedule, (see Dkt. No. 49). On April 30, 2018, SAC Defendants filed a

Motion To Dismiss and accompanying papers. (See SAC Defs.’ Mot. To Dismiss (Dkt. No. 55);

SAC Defs.’ Mem. of Law in Supp. of Mot. To Dismiss (Dkt. No. 56).) Plaintiff’s Opposition

was docketed on May 31, 2018, (see Pl.’s Mem. of Law in Opp’n to Mot. To Dismiss (Dkt.

No. 58)), and SAC Defendants filed their Reply on June 15, 2018, (see SAC Defs.’ Reply Mem.

of Law in Supp. of Mot. To Dismiss (Dkt. No. 59)). On March 29, 2019, the Court issued an

Opinion & Order on SAC Defendants’ Motion To Dismiss, dismissing all of Plaintiff’s claims

except Plaintiff’s free exercise claim against Purcell, Baker, Andreu, McCray, St. Victor,

McMahon, Wassweiler, and Zupan. (See Op. & Order (“MTD Op.”) (Dkt. No. 63).) While the

Court’s dismissal of certain of Plaintiff’s claims was without prejudice, Plaintiff’s Third

Amended Complaint (“TAC”)—eventually docketed on December 5, 2019 after the entry of

numerous orders to show cause—included only Plaintiff’s free exercise claim, though Plaintiff

brought this claim against all SAC Defendants. (See TAC.)

Purcell, Baker, Andreu, McCray, St. Victor, McMahon, Wassweiler, and Zupan filed

their Answer on December 17, 2019, (see Dkt. No. 81), and on the same day, Annucci filed a

pre-motion letter in anticipation of filing a motion to dismiss Plaintiff’s claims against him, (see

Dkt. No. 82). The Court entered a briefing schedule, and Annucci filed his Motion To Dismiss

the TAC and accompanying papers on January 29 and 30, 2020. (See Not. of Mot. To Dismiss

TAC (Dkt. No. 84); Mem. of Law in Supp. of Mot. To Dismiss TAC (Dkt. No. 87).) On

February 28, 2020, Plaintiff filed an affidavit in which he informed the Court that he did not

oppose Annucci’s Motion To Dismiss the TAC. (See Dkt. No. 88.) On March 12, 2020,

Annucci filed his Reply. (See Reply Mem. of Law in Supp. of Mot. To Dismiss TAC (Dkt.

No. 89).) After independently reviewing Annucci’s Motion To Dismiss despite Plaintiff’s

concession, the Court granted Annucci’s Motion To Dismiss. (See Op. & Order (Dkt. No. 94).)

The remaining Parties then proceeded to discovery, (see Dkt. Nos. 98–117), and on

February 4 and 8, 2021, the Parties filed competing pre-motion letters in anticipation of filing

competing motions for summary judgment, (see Dkt. Nos. 122, 123). On February 10, 2021, the

Court set a briefing schedule, (see Dkt. No. 125); Defendants filed their Motion, 56.1 Statement,

and accompanying papers on March 10, 2021, (see Defs.’ Not. of Mot.; Defs.’ Mem. of Law in

Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 128); Yoon Decl.; Defs.’ 56.1; Decl. of John Zupan in

Supp. of Mot. (Dkt. No. 131); Decl. of Samuel Purcell in Supp. of Mot. (Dkt. No. 132); Decl. of

Adolphus Baker in Supp. of Mot. (Dkt. No. 133); Decl. of Gregory St. Victor in Supp. of Mot.

(Dkt. No. 134); Decl. of David McCray in Supp. of Mot. (Dkt. No. 135); Decl. of Luis Andreu in

Supp. of Mot. (Dkt. No. 136); Local Rule 56.2 Not. (Dkt. No. 137)), and Plaintiff filed his Cross-

Motion, 56.1 Statement, and accompanying papers on March 26, 2021, (see Pl.’s Not. of Cross-

Mot.; Pl.’s Mem. of Law in Supp. of Cross-Mot. (“Pl.’s Mem.”) (Dkt. No. 139); Aff. of Jay

Kravitz in Supp. of Cross-Mot. (“Pl. Aff.”) (Dkt. No. 140); Pl.’s 56.1). Defendants filed their

Opposition to Plaintiff’s Cross-Motion on April 9, 2021, (see Defs.’ Mem. of Law in Opp’n to

Cross-Mot. (“Defs.’ Opp’n Mem.”) (Dkt. No. 142); Decl. of Amanda Yoon in Opp’n to Cross-

Mot. (Dkt. No. 143); Defs.’ Counter 56.1), and their Reply in support of Defendants’ Motion on

May 14, 2021, (see Defs.’ Reply Mem. of Law in Supp. of Mot. (“Defs.’ Reply Mem.”) (Dkt.

No. 149)). On May 25, 2021, Plaintiff filed his joint Reply in support of his Cross-Motion and

Opposition to Defendants’ Motion. (See Pl.’s Mem. of Law in Reply in Supp. of Cross-Mot. &

Opp’n to Defs.’ Mot. (“Pl.’s Reply Mem.”) (Dkt. No. 150).)

II. Discussion

A. Standard of Review

Summary judgment is appropriate where the movant shows that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.

2014) (same). “In deciding whether to award summary judgment, the [C]ourt must construe the

record evidence in the light most favorable to the non-moving party and draw all reasonable

inferences in its favor.” Torcivia v. Suffolk County, 17 F.4th 342, 354 (2d Cir. 2021); see also

Horror Inc. v. Miller, 15 F.4th 232, 240 (2d Cir. 2021) (same). “It is the movant’s burden to

show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373

F.3d 241, 244 (2d Cir. 2004); see also Red Pocket, Inc. v. Interactive Commc’ns Int’l, Inc.,

No. 17-CV-5670, 2020 WL 838279, at *4 (S.D.N.Y. Feb. 20, 2020) (same).

“However, when the burden of proof at trial would fall on the non[-]moving party, it

ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an

essential element of the non[-]movant’s claim,” in which case “the non[-]moving party must

come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order

to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d

114, 123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, “[t]o survive a

[summary judgment] motion . . . , [a non-movant] need[s] to create more than a ‘metaphysical’

possibility that his allegations were correct; he need[s] to ‘come forward with specific facts

showing that there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d

Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the

pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)

(quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a

motion for summary judgment is properly supported by documents or other evidentiary

materials, the party opposing summary judgment may not merely rest on the allegations or

denials of his pleading.”). And, “[w]hen opposing parties tell two different stories, one of which

is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”

Scott v. Harris, 550 U.S. 372, 380 (2007).

“On a motion for summary judgment, a fact is material if it might affect the outcome of

the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental

Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, “[t]he role

of the court is not to resolve disputed issues of fact but to assess whether there are any factual

issues to be tried.” Brod v. Omya, 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks omitted).

Thus, a court’s goal should be “to isolate and dispose of factually unsupported claims.” Geneva

Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex Corp.

v. Catrett, 477 U.S. 317, 323–24 (1986)).

When ruling on a motion for summary judgment, a district court should consider only

evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc.,

164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish facts, the

statements ‘must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant . . . is competent to testify on the matters stated.’” DiStiso,

691 F.3d at 230 (quoting FED. R. CIV. P. 56(c)(4)); see also Sellers v. M.C. Floor Crafters, Inc.,

842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires a motion for summary judgment to be

supported with affidavits based on personal knowledge . . . .”); Baity, 51 F. Supp. 3d at 419

(disregarding “statements not based on [the] [p]laintiff’s personal knowledge”); Flaherty v.

Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The test for

admissibility is whether a reasonable trier of fact could believe the witness had personal

knowledge.” (quotation marks omitted)).

Finally, the Second Circuit has instructed that when a court considers a motion for

summary judgment, “special solicitude” should be afforded a pro se litigant, see Graham, 848

F.2d at 344; Mercado v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741, at *7

(S.D.N.Y. May 24, 2001) (same), and a court should construe “the submissions of a pro se

litigant . . . liberally” and interpret them “to raise the strongest arguments that they suggest,”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics and quotation

marks omitted). Further, “the failure to oppose a motion for summary judgment alone does not

justify the granting of summary judgment.” Vt. Teddy Bear Co., 373 F.3d at 244; see also

Jackson v. Fed. Express, 766 F.3d 189, 196 (2d Cir. 2014) (explaining that “an examination of

the legal validity of an entry of summary judgment should . . . be[] made in light of the opposing

party’s pro se status” (italics omitted)). Nonetheless, “proceeding pro se does not otherwise

relieve a litigant of the usual requirements of summary judgment, and a pro se party’s bald

assertions unsupported by evidence . . . are insufficient to overcome a motion for summary

judgment.” Houston, 27 F. Supp. 3d at 351 (italics and quotation marks omitted); see also

Flores v. City of New York, No. 15-CV-2903, 2017 WL 3263147, at *2 (S.D.N.Y. July 31, 2017)

(same).

B. Analysis

Plaintiff claims that Defendants’ alleged conduct violated Plaintiff’s right to free exercise

of his religion under the First Amendment and caused him “serious personal injuries,

humiliation[,] and emotional distress,” for which he seeks $2 million in damages. (TAC ¶¶ 23–

26.) Defendants argue that Plaintiff’s free exercise claim fails because the undisputed evidence

demonstrates that the alleged incidents did not substantially burden Plaintiff’s sincerely held

religious beliefs, and moreover, that the alleged incidents demonstrate at most, negligence by

those involved, which is insufficient to support a claim under the Free Exercise Clause. (See

Defs.’ Mem. 5–8.) Defendants further argue that Plaintiff has failed to demonstrate that Zupan,

Purcell, Baker, St. Victor, McCray, or Andreu were personally involved in the alleged

constitutional violations, precluding § 1983 liability. (See id. at 9–13.) In the alternative,

Defendants argue that they are entitled to qualified immunity. (See id. at 14–15.) Plaintiff

argues that he is entitled to summary judgment because “Shavuot is a holiday of singular

importance in the Jewish calendar,” and Defendants have failed to demonstrate that there was

any emergency or exigent circumstances that justified their actions. (Pl.’s Mem. 9–11.)4

The Court addresses these arguments to the extent necessary to decide the instant Motion

and Cross-Motion.

1. Personal Involvement

“It is well settled that, in order to establish a defendant’s individual liability in a suit

brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the

alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.

2013). To establish personal involvement, a plaintiff must show:

4 When citing to Plaintiff’s Memorandum of Law in Support of his Cross-Motion, the

Court refers to the ECF-stamped page numbers at the top right-hand corner of each page.

(1) the defendant participated directly in the alleged constitutional violation, (2) the

defendant, after being informed of the violation through a report or appeal, failed

to remedy the wrong, (3) the defendant created a policy or custom under which

unconstitutional practices occurred, or allowed the continuance of such a policy or

custom, (4) the defendant was grossly negligent in supervising subordinates who

committed the wrongful acts, or (5) the defendant exhibited deliberate indifference

to the rights of inmates by failing to act on information indicating that

unconstitutional acts were occurring.

Id. at 139 (emphases and quotation marks omitted). “The fact that a defendant is a supervisor is

not enough to impute personal involvement onto that person; liability requires, rather, that the

‘defendant, acting through the official’s own individual actions, has violated the Constitution.’”

Siler v. Munroe, No. 20-CV-5794, 2021 WL 6064701, at *7 (S.D.N.Y. Dec. 22, 2021) (quoting

Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)).

Here, the undisputed evidence demonstrates that Zupan, Purcell, Baker, St. Victor,

McCray, and Andreu were not personally involved in the alleged deprivation of Plaintiff’s free

exercise rights. See supra I.A.3. As such, they are entitled to summary judgment. See, e.g.,

Ridge v. Davis, No. 18-CV-8958, 2022 WL 357020, at *10 (S.D.N.Y. Feb. 7, 2022) (granting

summary judgment to certain defendants in a § 1983 suit bringing excessive force claims where

“the record fails to establish that [these defendants] were directly involved in the alleged assault

of [the] plaintiff”); Allah v. Annucci, No. 16-CV-1841, 2020 WL 3073184, at *8 (S.D.N.Y.

June 10, 2020) (granting summary judgment to a § 1983 defendant where the record did not

establish the defendant’s personal involvement).

Plaintiff appears to argue that all Defendants’ personal involvement is established based

on the fact that these individuals were identified by Defendants’ counsel in his response to the

Court’s Valentin Order. (See Pl.’s Reply Mem. 3–4.)5 “However, a response to a Valentin

5 When citing to Plaintiff’s Reply Memorandum of Law in Support of his Cross-Motion

and in Opposition to Defendants’ Motion, the Court refers to the ECF-stamped page numbers at

the top right-hand corner of each page.

request has never, as far as this [C]ourt is aware, been treated as an admission of actual

involvement, as opposed to a suggestion of who might have been involved that is offered to the

plaintiff as a means of facilitating the commencement of the lawsuit.” Harris v. City of New

York, No. 15-CV-8456, 2017 WL 6501912, at *5 (S.D.N.Y. Dec. 15, 2017). Indeed, in

Defendants’ Valentin response, Defendants’ counsel made clear that Downstate officials had

identified Purcell, Baker, Andreu, McCray, and St. Victor because they were the escort officers

assigned to either the gym or lobby area in Complex 3, which Downstate officials “suggested”

may be the areas to which Plaintiff was referring when he alleged that the incident on June 3,

2014 took place in a “staging area.” (Dkt. No. 11.) Defendants’ counsel identified Zupan solely

because Zupan was the area supervisor on June 4, 2014. (See id.) In short, Defendants’ counsel

made clear that these individuals were the facility’s best guess for the correction officers to

whom Plaintiff was referring, based on the little information Plaintiff provided in his initial

Complaint. (See Compl. ¶¶ 12–14.) See also Harris, 2017 WL 6501912, at *5 (“All that one

can discern from a Valentin response is that the [facility], trying to ascertain who might have

been present at or involved in a particular incident, concluded that [these individuals were]

candidate[s] for involvement.”). Moreover, while a pro se litigant is entitled to assistance from

the district court in identifying a defendant pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d

Cir. 1996), this process does not absolve a pro se litigant like Plaintiff from accurately

identifying the defendants that he intends to sue, see Silva v. Kilham, No. 19-CV-1719, 2020 WL

7388960, at *1 n.1 (D. Conn. Dec. 16, 2020) (dismissing John Doe defendant where the plaintiff

had failed to identify the Doe defendant after discovery).

Accordingly, the Court grants summary judgment to Zupan, Purcell, Baker, St. Victor,

McCray, and Andreu, leaving only McMahon and Wassweiler.6

2. Free Exercise Claim

It is well-established that the First Amendment affords inmates constitutional protection

to practice their religion. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (explaining

that “[i]nmates clearly retain protections afforded by the First Amendment, including its

directive that no law shall prohibit the free exercise of religion”); Ford v. McGinnis, 352 F.3d

582, 588 (2d Cir. 2003) (explaining that “[p]risoners have long been understood to retain some

measure of the constitutional protection afforded by the First Amendment’s Free Exercise

Clause”). However, because of inmates’ unique circumstances, their free exercise rights are

necessarily more constrained than those of other persons. See Benjamin v. Coughlin, 905 F.2d

571, 574 (2d Cir. 1990) (“Balanced against the constitutional protections afforded prison

inmates, including the right to free exercise of religion, are the interests of prison officials

6 The Court notes that Plaintiff has failed to offer any admissible evidence to support his

claim that McMahon or Wassweiler were personally involved in the alleged constitutional

deprivations, either. While Plaintiff states in his 56.1 Statement that McMahon and Wassweiler

were involved in the June 4, 2014 incident, (see Pl.’s 56.1 ¶ 21), the evidentiary basis for this

statement is his own affidavit, which is insufficient to establish either McMahon or Wassweiler’s

involvement because Plaintiff admitted at his deposition that he did not have personal knowledge

as to either’s involvement in the June 4, 2014 incident. (See Pl. Dep. 111:17–112:10.) See

DiStiso, 691 F.3d at 230 (“[W]here a party relies on affidavits . . . to establish facts, the

statements ‘must be made on personal knowledge.’” (quoting FED. R. CIV. P. 56(c)(4))). See also

supra Note 3.

Because the burden of proving personal involvement would fall on Plaintiff at trial, it

likely would have been sufficient for Defendants to “point to a lack of evidence to go to the trier

of fact on [this] element of [Plaintiff’s] claim,” which would have shifted the burden to Plaintiff

to “come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in

order to avoid summary judgment.” CILP Assocs., 735 F.3d at 123. But Defendants have failed

to do so here, in any of their briefing. (See generally Defs.’ Mem.; Defs.’ Opp’n Mem.; Defs.’

Reply Mem.) As such, the Court cannot grant summary judgment to McMahon and Wassweiler

on this basis. However, this oversight does not ultimately affect the disposition of the instant

Motion and Cross-Motion because the Court finds that Plaintiff cannot establish that his religious

practice was substantially burdened by McMahon or Wassweiler. See infra.

charged with complex duties arising from administration of the penal system.” (citing Pell v.

Procunier, 417 U.S. 817, 822 (1974))).

A prisoner’s free exercise claims are therefore “judged under a ‘reasonableness’ test less

restrictive than that ordinarily applied to alleged infringements of fundamental constitutional

rights.” Ford, 352 F.3d at 588 (quoting Farid v. Smith, 850 F.2d 917, 925 (2d Cir. 1988)). To

succeed on a free exercise claim, an inmate must “show at the threshold that the disputed

conduct substantially burdens his sincerely held religious beliefs.” McLeod v. Williams, No. 18-

CV-115, 2020 WL 2512164, at *3 (S.D.N.Y. May 15, 2020) (quoting Brandon v. Kinter, 938

F.3d 21, 32 (2d Cir. 2019)); see also Salahuddin v. Goord, 467 F.3d 263, 274–75 (2d Cir. 2006)

(same). “To demonstrate a ‘substantial burden,’ the plaintiff must show that ‘the state has put

substantial pressure on him to modify his behavior and to violate his beliefs.’” Wilson v. City of

New York, No. 18-CV-2262, 2021 WL 5908860, at *4 (E.D.N.Y. Dec. 14, 2021) (alterations

omitted) (quoting Rossi v. Fishcer, No. 13-CV-3167, 2015 WL 769551, at *7 (S.D.N.Y. Feb. 24,

2015)). That is, “[t]he relevant question in determining whether [the inmate’s] religious beliefs

were substantially burdened is whether participation in the [religious activity], in particular, is

considered central or important to [the inmate’s religious] practice.” Ford, 352 F.3d at 593–94.

The Second Circuit has made clear that “establishing a substantial burden is ‘not a particularly

onerous task.’” Brandon, 938 F.3d at 32 (quoting McEachin v. McGuinnis, 357 F.3d 197, 202

(2d Cir. 2004)). “Once [an inmate] establishes this burden, ‘[t]he defendant[] then bear[s] the

relatively limited burden of identifying the legitimate penological interests that justify the

impinging conduct.’” Smith v. Perlman, No. 11-CV-20, 2012 WL 929848, at *7 (N.D.N.Y.

Mar. 19, 2012) (second alteration in original) (quoting Salahuddin, 467 F.3d at 308); see also

Green Haven Prison Preparative Meeting of Religious Soc’y of Friends v. N.Y. State Dep’t of

Corr. & Cmty. Supervision, 16 F.4th 67, 83 (2d Cir. 2021) (“A prisoner’s first amendment right

to the free exercise of his religious beliefs may only be infringed to the extent that such

infringement is reasonably related to legitimate penological interests.” (quoting Young v.

Coughlin, 866 F.2d 567, 570 (2d Cir. 1989))). The burden remains with the inmate “to show that

these articulated concerns were irrational.” Salahuddin, 467 F.3d at 275 (alteration, and

quotation marks omitted).

Moreover, where a plaintiff advances a free exercise claim pursuant to § 1983, the

plaintiff must establish that the defendant at least had reason to know “the facts rendering [his

conduct] illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001); see also

Brandon, 938 F.3d at 38 (declining to decide whether some forms of negligence are sufficient for

a free exercise claim, but explaining that deliberate indifference is sufficient); Grullon, 720 F.3d

at 139 (explaining that liability under § 1983 requires, at least, grossly negligent or deliberately

indifferent conduct). Accordingly, insofar as neither McMahon nor Wassweiler—the only

remaining defendants—had reason to know that their conduct burdened Plaintiff’s religious

practice, they cannot be held liable for having done so. See Porter v. Bunch, No. 16-CV-5935,

2019 WL 1428431, at *16 (S.D.N.Y. Mar. 29, 2019) (explaining that the defendant could not be

held liable for failing to provide a religious accommodation where that accommodation had not

been requested); Perez v. Westchester Cnty. Dep’t of Corr., No. 05-CV-8120, 2007 WL

1288579, at *3 (S.D.N.Y. Apr. 30, 2007) (same). Moreover, under the doctrine of qualified

immunity, a government official is immune from liability “whenever (1) his conduct ‘did not

violate clearly established law’, or (2) ‘it was objectively reasonable . . . to believe that his action

did not violate such law.’” Naumovski v. Norris, 934 F.3d 200, 210 (2d Cir. 2019) (citing Russo

v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir 2007)). For this reason as well, insofar as

McMahon or Wassweiler’s purported violations of Plaintiff’s religious freedoms were the

products of “reasonable mistakes of law or fact,” they are shielded from liability. Id.

At the outset, the Court makes clear that given its finding as to personal involvement

above, the only incident that remains at issue is the June 4, 2014 incident. In the TAC, Plaintiff

alleges that Purcell, Baker, Andreu, McCray, and St. Victor were responsible for the deprivation

of Plaintiff’s free exercise rights via the incident on June 3, 2014, and McMahon, Wassweiler,

and Zupan were responsible for the deprivation of Plaintiff’s free exercise rights via the incident

on June 4, 2014. (See TAC ¶¶ 16–19.) This delineation is repeated in Plaintiff’s 56.1 Statement,

in which Plaintiff makes clear his stance that Purcell, Baker, Andreu, McCray, and St. Victor

were responsible for the incident on June 3, 2014, and McMahon, Wassweiler, and Zupan were

responsible for the incident on June 4, 2014. (See Pl.’s 56.1 ¶¶ 14, 21.) The Court has held that

Zupan, Purcell, Baker, St. Victor, McCray, and Andreu are entitled to summary judgment

because the record fails establish their personal involvement in the alleged incidents, see supra

II.B.1., leaving only Plaintiff’s claims against McMahon and Wassweiler intact. Because

Plaintiff’s claims against McMahon and Wassweiler are limited to the June 4, 2014 incident, so

too is the Court’s inquiry in determining whether Plaintiff’s free exercise claim survives

Defendants’ Motion or allows Plaintiff’s Cross-Motion to succeed.

Defendants concede for purposes of the instant Motion and Cross-Motion that Plaintiff’s

religious beliefs are sincerely held, but argue that there is no genuine dispute of material fact that

the June 4, 2014 incident did not substantially burden Plaintiff’s religious beliefs. (See Defs.’

Mem. 5–7.) The Court ultimately agrees, but not entirely for the reasons that Defendants

provide.

Defendants primarily argue that the alleged curtailment of the June 4, 2014 congregate

prayers did not substantially burden Plaintiff’s free exercise right because “courts in the Second

Circuit have repeatedly held that ‘[a]s a matter of law, missing one religious service does not

constitute a substantial burden on an inmate’s right to the free exercise of his religion.’” (Id. at

5–6 (alteration in original) (quoting McLeod, 2020 WL 2512164, at *4)). Defendants

unsuccessfully attempted to make this same argument in their Motion To Dismiss, (see MTD Op.

7), and it fails here for the same reasons it failed then. As Plaintiff correctly points out, (see Pl.’s

Mem. 10), the Second Circuit made clear in Ford that missing even one religious service can

constitute a substantial burden on an inmate’s right to the free exercise of his religion where

participation in the service “is considered central or important to [the inmate’s] practice of [his

religion].” Ford, 352 F.3d at 593–94. It is for this reason that the Court found that Plaintiff’s

allegations as to the critical importance of the Shavuot holiday satisfied Plaintiff’s “burden of

alleging that Shavuot is ‘central or important’ to the exercise of his faith such that missing even

one service could constitute a substantial burden.” (MTD Op. 10–11 (quoting Ford, 352 F.3d at

593–94).) Defendants make no attempt to argue or offer any evidence for the proposition that

Shavuot is not central or important to Plaintiff’s practice of his Jewish faith, (see generally

Defs.’ Mem.; Defs.’ 56.1; Defs.’ Opp’n Mem.; Defs.’ Reply Mem.), and Plaintiff attests to his

religious belief that “[t]he holiday of Shevuot [sic] is one of the three major festivals in Judaism

[in which Jewish people] celebrate the giving of the Torah or Law on Mount Sinai,” (Pl. Aff.

¶ 7). In light of the Second Circuit’s instruction that “establishing a substantial burden is ‘not a

particularly onerous task,’” Brandon, 938 F.3d at 32 (quoting McEachin, 357 F.3d at 202), the

Court finds that had McMahon and Wassweiler caused Plaintiff to miss the Shavuot prayers and

meal on June 4, 2014, that single missed celebration would have constituted a substantial burden

on Plaintiff’s free exercise given Shavuot’s central importance.7

However, the Court finds that there is no genuine dispute of material fact that the June 4,

2014 incident did not substantially burden Plaintiff’s religious belief because the undisputed

facts demonstrate that Plaintiff’s Shavuot celebration was only shortened, not denied. The

record demonstrates that a Shavuot celebration consists of a festive meal and a prayer service.

See supra I.A.2. On June 4, 2014, Plaintiff was released from his housing block at around

7:50pm, was escorted to the #4 Dining Room, and was able to congregate, pray, and eat a festive

kosher meal with a group of other Jewish inmates until approximately 8:45pm. See supra id.

While Plaintiff claims that McMahon and Wassweiler interrupted the group’s prayers and pushed

them to eat quickly (indeed, the group indisputably did not receive the full 1 hour and 45 minutes

they should have been allotted per DOCCS policy), see supra id., the undisputed evidence

clearly demonstrates that Plaintiff was able to observe the Shavuot holiday, albeit in a shortened

7 Further, the Court finds Defendants’ characterization of Ford to be disingenuous.

Defendants argue that Plaintiff’s reliance on Ford is “entirely misplaced,” “[m]ost

fundamentally” because “the Ford court found only that the defendants in that case were not

entitled to summary judgment.” (Defs.’ Opp’n Mem. 4.) The Court interprets this argument to

mean that Defendants feel the Second Circuit’s finding that the Ford defendants were not

entitled to summary judgment is materially different from a finding that the Ford plaintiff was

entitled to summary judgment such that any reliance on Ford’s reasoning by Plaintiff in arguing

that summary judgment should be granted in his favor is “entirely misplaced.” First, the Court

does not agree with the premise that the Second Circuit’s detailed opinion explaining how

district courts should approach the application of the substantial burden test to a claim brought

by a prisoner is applicable only when a court denies a motion for summary judgment, and not

when a court grants it—nor do Defendants identify any authority for such a strict proposition.

Second, Defendants’ claim that “there is nothing whatsoever indicating that the [Ford]

plaintiff . . . would be entitled to summary judgment” is simply incorrect. (Id. at 4.) Rather, the

Second Circuit specifically stated in Ford that the court “would be inclined to hold on the basis

of the record before [the court] that [the plaintiff] has established a substantial burden as a matter

of law,” but found it was precluded from doing so based on the potential existence of a factual

dispute. Ford, 352 F.3d at 594 (emphasis added).

and perhaps substandard manner. As such, Plaintiff cannot meet his burden of demonstrating

that his religious beliefs were substantially burdened. See, e.g., Smith v. Wildermuth, No. 11-

CV-241, 2017 WL 1379368, at *5 (N.D.N.Y. Apr. 14, 2017) (finding that the plaintiff “cannot

make the threshold demonstration of ‘substantial burden’ necessary to succeed on his free

exercise claim” where the plaintiff claimed that the defendant “attempted to interrupt a single

Salaah prayer,” but the plaintiff “maintained his prayer during the attempted verbal

interruptions[] and . . . ultimately finished his prayer”); Hamilton v. Countant, No. 13-CV-669,

2016 WL 881126, at *7 (S.D.N.Y. Mar. 1, 2016) (finding no substantial burden where the

plaintiff was not able to obtain cornbread and grape juice as part of a Rastafarian Fasika

celebration, explaining “[t]he absence of the Fasika communion in 2012—one aspect of a more

extensive Fasika celebration—is more akin to those cases in which the mere inability to provide

a small number of meals commensurate with a prisoner’s religious dietary restrictions was found

to be a de minimis burden than those cases like Ford, in which the prisoner suffered complete

exclusion from participation in a religious holiday” (footnote and quotation marks omitted));

Robinson v. Jimminez, No. 08-CV-902, 2012 WL 1038917, at *6 (E.D.N.Y. Mar. 6, 2012)

(finding no substantial burden where the record demonstrates that the plaintiff’s “religious

worship of Rosh Hashanah was interrupted, not denied” and the plaintiff was permitted to

engage in religious practice thereafter “on a regular basis”); Kravitz v. Fischer, No. 12-CV-1011,

2014 WL 4199245, at *12 (N.D.N.Y. Aug. 22, 2014) (finding no substantial burden where the

defendant “was successful in preventing the group prayer on only one occasion during Sukkot,”

and the group instead “recite[d] their pre-meal blessing alone rather than as a group on a single

occasion”).8

Accordingly, the Court finds that there is no genuine dispute of material fact that

McMahon and Wassweiler did not substantially burden Plaintiff’s religious practice via the

June 4, 2014 incident, and Defendants are entitled to summary judgment. As such, the Court

declines to address Defendants’ arguments that McMahon and Wassweiler’s actions on June 4,

2014 constituted at most, negligence, undermining Plaintiff’s substantial burden argument and

entitling McMahon and Wassweiler to qualified immunity. (See, e.g., Defs.’ Mem. 7–8, 14–15.)9

III. Conclusion

For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted and

Plaintiff’s Cross-Motion for Summary Judgment is denied.

8 While at the motion to dismiss stage, the Court found Hamilton to counsel in favor of

denying Defendants’ Motion To Dismiss, because the allegations in the complaint could

reasonably be construed as the complete denial of Plaintiff’s ability to observe Shavuot, (see

MTD Op. 11–12), the record now before the Court demonstrates that Plaintiff was not, in fact,

completely denied the ability to observe Shavuot. As such, the court’s reasoning in Hamilton

now counsels in favor of granting summary judgment for Defendants.

9 The Court notes its heavy skepticism of Defendants’ argument that there is no genuine

dispute that the June 4, 2014 incident was simply the “result of miscommunication within the

administration,” (Defs.’ Mem. 8; see also Defs.’ Opp’n Mem. 6–7; Defs. Reply Mem. 3–4),

when (1) there is evidence that Plaintiff had raised his frustrations regarding the June 3, 2014

incident with the facility superintendent and director of religious programming and been assured

that the June 4, 2014 celebrations would go smoothly, see supra I.A.2., and (2) Plaintiff claims

that McMahon and Wassweiler interrupted the group’s prayers and hurried the group’s meal with

no explanation and used profanity, see supra id.

The Clerk of Court is respectfully directed to terminate the pending Motion and Cross-

Motion, (Dkt. Nos. 127, 138), enter judgment for Defendants, mail a copy of this Opinion to

Plaintiff, and close this case.

SO ORDERED.

Dated: March 14, 2022

White Plains, New York

KENNETH M. KARAS

United States District Judge