# Kravitz v. State of New York

> District Court, S.D. New York · March 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10339432

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10339432

## How later opinions describe it (automated extraction)

- 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)
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10339432. Public record. Not legal advice.