Lopez v. Annucci

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

JOHN LOPEZ,

Plaintiff, DECISION AND ORDER

-v- 6:17-CV-06305 EAW

PAUL CHAPPIUS, JR., et al.,

Defendants.

___________________________________

INTRODUCTION

Pro se plaintiff John Lopez (“Plaintiff” or “Lopez”), an inmate formerly

incarcerated at the Elmira Correctional Facility (“Elmira”), commenced this action on May

15, 2017, seeking relief under 42 U.S.C. § 1983. (Dkt. 1). Plaintiff subsequently filed an

amended complaint, which is now the operative pleading. (Dkt. 8). Plaintiff alleges that

defendants Elmira Superintendent Paul Chappius, Jr. (“Chappius”); Deputy Superintendent

of Programs John Mizgala (“Mizgala”); Assistant Deputy Superintendent of Programs

Frank Rhodes, (“Rhodes”); and Religious Coordinating Chaplain T. Hawk (“Hawk”)

(collectively “Defendants”) violated his First Amendment right to exercise his religion

when they failed to provide Plaintiff with seventeen Rastafarian holy feast day meals

during his confinement in Elmira’s Involuntary Protective Custody Unit (“IPCU”). (See

id. at ¶¶ 5-8, 12, 39).

Currently before the Court is Defendants’ motion for summary judgment. (Dkt. 59).

For the reasons discussed below, the motion is granted in part and denied in part.

BACKGROUND

I. Factual Background

The following facts are taken from Defendants’ Statement of Undisputed Facts

(Dkt. 59-1), Plaintiff’s Declaration in Opposition (Dkt. 72), Plaintiff’s Statement of

Disputed Facts (Dkt. 72-1), and the exhibits submitted by the parties. Where the particular

facts are controverted, the Court has noted the disagreement.

Plaintiff alleges he was an inmate in Elmira’s IPCU from June 5, 2012, to March

31, 2015. (Dkt. 72 at ¶ 5).1 Plaintiff is a Rastafarian, and claims that Defendants failed to

provide him with seventeen holy feast day meals (the “Holy Meals”) during his time in the

IPCU. (Id.). Plaintiff alleges that Holy Meals occur six times per year: January 7, May 5,

July 23, August 17, October 7, and November 2. (Dkt. 8 at ¶¶ 43-50)..

Plaintiff submitted five grievances to Elmira relating to missed Holy Meals. (Dkt.

72 at ¶ 32). Plaintiff submitted his first grievance on or about April 11, 2013, numbered

EL-40-769-13 (the “First Grievance”). (Dkt. 72-3 at 22-23). In it, among other things, he

complained that he had not been given any of his Holy Meals after being moved to the

IPCU eleven months earlier. (Id. at 22). He also reminded DOCCS officials that there was

a holy day approaching on May 5, 2013. (Id.). Elmira officials granted the First Grievance,

recognizing that Plaintiff was entitled to the Holy Meals but noting that he may not have

1 The parties dispute exactly when Plaintiff arrived at Elmira’s IPCU. (Compare Dkt.

72 at ¶ 5 (start date on June 5, 2012) with Dkt. 59-1 at ¶ 5 (start date on July 19, 2012)).

However, the difference in dates is not material because, according to Plaintiff, no

Rastafarian holy feast days occurred during this time-gap. (See Dkt. 72-3 at 7 (no religious

holidays occurring between June 5 and July 19)).

received them due to a lack of understanding about the proper procedures. (Id. at 23).

Plaintiff was assured that future meals would be provided. (Id.). Plaintiff appealed. (Id.

at 24-25). Elmira officials upheld the initial determination, but noted that the May 5, 2013

Rastafarian religious event was canceled because the assigned cooks refused to prepare the

meal at the last minute. (See id. at 27-29).

Plaintiff submitted a second grievance on or about October 7, 2013, numbered EL-

41-619-13 (the “Second Grievance”). (Id. at 60-64). In it, Plaintiff complained that

another Holy Meal was not delivered to him in the IPCU on October 7, 2013, and that no

Holy Meals had been delivered to him to date. (Id.). Elmira officials denied the Second

Grievance, indicating that the Chaplain denied refusing to provide meals and finding no

evidence that the meal was not delivered. (Id. at 65). Plaintiff’s appeal (id. at 66-67) was

denied after Elmira officials again found no evidence of malfeasance (id. at 69).

Plaintiff submitted a third grievance on or about May 8, 2014, numbered EL-42-

560-14 (the “Third Grievance”). (Id. at 31-35). In it, he again complained that no Holy

Meals had been provided during the 24 months he had been in the IPCU, despite multiple

promises that they would be delivered. (Id. at 32-34). The Third Grievance was granted

in part. (Id. at 37). Plaintiff appealed. (Id. at 37). Plaintiff’s appeal was denied based on

an investigation revealing that Plaintiff had received his religious meal on May 5, 2014.

(Id. at 39, 45).

Plaintiff submitted a fourth grievance on or about October 8, 2014, numbered EL-

43-103-14 (the “Fourth Grievance”). (Id. at 41-43). In it, he complained of missing all of

his Holy Meals for the 28 months he was confined in the IPCU and further claimed that

these missed meals were due to “intentional” and “malicious” misconduct. (Id. at 42).

Specifically, he complained of not receiving his Holy Meal on October 7, 2014. (Id.). The

Fourth Grievance was denied, with Elmira officials finding that Plaintiff was removed from

the religious holiday list by mistake, not by any intentional misconduct. (Id. at 47).

Plaintiff appealed, and Elmira officials acknowledged that Plaintiff did not receive his Holy

Meal but affirmed that no malicious wrongdoing occurred. (Id. at 47).

Lastly, Plaintiff submitted a fifth grievance on or about November 10, 2014,

numbered EL-43-224-14 (the “Fifth Grievance”). (Id. at 49-52). In it, Plaintiff again

complained of intentional misconduct relating to his Holy Meal on November 2, 2014, this

time claiming that he was given a meal that was tampered with and not sealed properly.

(Id. at 50). Plaintiff noted that this was the first Holy Meal he had received in the 29 months

he was housed in the IPCU and that it was sabotaged. (Id. at 51-52). Elmira officials

granted the Fifth Grievance to the extent that they agreed to wrap the meals in the same

manner as other religious meals. (Id. at 54). Plaintiff appealed, and Elmira officials found

that there was no evidence of tampering with the meal. (Id. at 56).

In addition to the formal grievances, Plaintiff wrote letters of complaint to various

Elmira staff and supervisors. (See id. at 2-4 (letter to Hawk dated October 8, 2013), 6-8

(letter to Mizgala dated October 10, 2013), 10-11 (letter to Chappius dated July 24, 2013),

13 (letter to Hawk dated May 4, 2014), 15 (letter to Mizgala dated May 4, 2014), 17-18

(letter to Hawk dated October 29, 2014), 20 (letter to Rhodes dated October 29, 2014), 71

(letter to Hawk dated September 22, 2013), and 73 (letter to Hawk dated September 25,

2013)).

II. Procedural Background

Plaintiff commenced the instant action on May 15, 2017. (Dkt. 1). On September

24, 2018, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis. (Dkt.

7). On November 9, 2018, Plaintiff filed an amended complaint, which is the operative

pleading here. (Dkt. 8). Following this Court’s denial of Defendants’ motion to dismiss

(Dkt. 19), the parties proceeded with discovery.

Defendants moved for summary judgment on July 22, 2022. (Dkt. 59). Plaintiff

filed his opposition on October 20, 2022. (Dkt. 72). Defendants filed their reply on

November 4, 2022. (Dkt. 74). Plaintiff was granted leave to file a sur-reply (Dkt. 76),

which he filed on December 22, 2022 (Dkt. 77).

DISCUSSION

I. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “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). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the Court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute as

to any material fact . . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the

party moving for summary judgment may meet its burden by showing the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry the

non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103

(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the

moving party has met its burden, the opposing party “must do more than simply show that

there is some metaphysical doubt as to the material facts[] and may not rely on conclusory

allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,

781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d

Cir. 2011)). Specifically, the non-moving party “must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654

F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

“Where one party is proceeding pro se, the Court reads the pro se party’s papers

liberally and interprets them ‘to raise the strongest arguments that they suggest.’” Thorne

v. Lewis, No. 3:19CV24(VLB), 2021 WL 4324475, at *2 (D. Conn. Sept. 23, 2021)

(quoting Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015)). Despite this liberal

approach, allegations unsupported by admissible evidence “do not create a material issue

of fact” and cannot overcome a properly supported motion for summary judgment.

Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

II. Defendants’ Summary Judgment Motion

Defendants set forth three grounds for summary judgment. First, they argue that

Plaintiff has not exhausted his administrative remedies for most of the allegedly improper

conduct. (Dkt. 59-8 at 13-14). Second, they contend that Plaintiff has set forth no evidence

of any wrongdoing by any Defendants to support his First Amendment claim. (Id. at 5-9).

And third, they argue that Plaintiff cannot demonstrate the requisite personal involvement

of Defendants Chappius, Mizgala, and Rhodes. (Id. at 9-13). The Court addresses each of

these arguments below.

A. Exhaustion of Remedies

Defendants argue that they are entitled to summary judgment with respect to

Plaintiff’s claims arising from alleged missed Holy Meals for which Plaintiff failed to

adequately exhaust his administrative remedies. (Id. at 13-14). Plaintiff did not

meaningfully address this argument in his opposition to Defendants’ motion, which could

serve as a basis to grant the relief, but in light of Plaintiff’s pro se status and his otherwise

detailed submissions, the Court will consider the merits of Defendants’ arguments.2 On

this record, the Court agrees that Plaintiff failed to exhaust his administrative remedies with

respect to alleged missed Holy Meals occurring on July 23, 2012; August 17, 2012;

2 “A court may, and generally will, deem a claim abandoned when a plaintiff fails to

respond to a defendant’s arguments that the claim should be dismissed.” Banyan v.

Sikorski, No. 17-CV-4942 (LJL), 2021 WL 2156226, at *2 (S.D.N.Y. May 27, 2021)

(finding summary judgment appropriately granted based on the plaintiff’s “failure to

respond to arguments set forth in a moving party’s brief”).

October 7, 2012; November 2, 2012; and January 7, 2013, but concludes that Plaintiff has

demonstrated sufficient exhaustion for the remaining Holy Meals at issue.

An inmate plaintiff “must fully complete the administrative review process before

commencing [an] action.” Garraway v. Smith, No. 12-CV-924S, 2020 WL 491328, at *3

(W.D.N.Y. Jan. 30, 2020). “‘Proper exhaustion’ requires a plaintiff to procedurally exhaust

his claims by ‘compl[ying] with the system’s critical procedural rules.’” Id. (quoting

Woodford v. Ngo, 548 U.S. 81, 95 (2006)). In New York, this entails going through a three-

step appeal procedure set out in N.Y.C.C.R. § 701.5. Id. at *4. This section provides that:

(1) the inmate must submit a written complaint to the Grievance Clerk within

21 calendar days of the alleged occurrence; the Grievance Clerk then submits

the complaint to the Inmate Grievance Resolution Committee (“IGRC”) for

investigation and review; (2) if the IGRC denies the grievance, the inmate

may appeal to the superintendent of the facility by filing an appeal with the

IGP clerk; (3) after the superintendent issues a decision, the inmate may

appeal to the Central Office Review Committee (“CORC”), which makes the

final administrative determination.

Id. An inmate may only seek relief under § 1983 “[i]f all three levels of review are

exhausted.” Id.

An initial grievance merely needs to place a defendant on notice of the alleged

misconduct and include enough detail to allow for any “appropriate responsive measures.”

Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (“Uncounseled inmates navigating

prison administrative procedures without assistance cannot be expected to satisfy a

standard more stringent than that of notice pleading. . . . In order to exhaust, therefore,

inmates must provide enough information about the conduct of which they complain to

allow prison officials to take appropriate responsive measures.”); Matthews v. New York

State Dep’t of Corr., 9:17-CV-503 (TJM/ML), 2022 WL 823851, at *6 (N.D.N.Y. Mar.

18, 2022) (“Ultimately, in order to exhaust, a prisoner must allege facts sufficient to alert

corrections officials to the nature of the claim, and provide enough information about the

conduct at issue to allow prison officials to take appropriate responsive measures.”

(quotations omitted)).

A grievant must comply with the 21-day time limit for filing a grievance, or may

request an extension to 45 days based on mitigating circumstances. 7 N.Y.C.R.R. §

701.6(g)(1) (allowing grievant to submit written request for extension of time to file

complaint); Williams v. Priatno, 829 F.3d 118, 125 (2d Cir. 2016) (“if it is beyond 21 days

but within 45 days of the incident, the inmate can request an exception to the 21-day time

limit if he can show mitigating circumstances”); Maldonado v. Bennett, 9:17-cv-01303

(BKS/TWD), 2021 WL 677845, at *9 (N.D.N.Y. Feb. 22, 2021) (dismissing claims with

prejudice “[b]ecause Plaintiff failed to exhaust his administrative remedies for the

December 26, 2016 incident, and the 21-day time limit and 45-day period for requesting

an exception to the time limit have long expired”). Although this rule generally requires

an inmate to separately grieve later-occurring conduct, “the Second Circuit has crafted an

exception to this rule for cases ‘in which a prior grievance identifies a specific and

continuing complaint that ultimately becomes the basis for a lawsuit.’” Cisco v. Jones, No.

917CV0347LEKDJS, 2020 WL 1180779, at *4 (N.D.N.Y. Mar. 12, 2020) (quoting

Johnson v. Killian, 680 F.3d 234, 239 (2d Cir. 2012)); see also Telesford v. Wenderlich,

No. 16-CV-6130 CJS, 2018 WL 4853667, at *7 (W.D.N.Y. Oct. 5, 2018) (“[T]he inmate

is required to separately grieve the later-occurring incidents, unless they involve the ‘same

problem’ as to which the inmate previously exhausted his administrative remedies.”); Reid

v. Nassau Cnty. Sheriff’s Dep’t, No. 13-CV-1192 SJF SIL, 2014 WL 4185195, at *27

(E.D.N.Y. Aug. 20, 2014) (“Where a prior [properly exhausted] grievance identifies a

specific and continuing complaint that ultimately becomes the basis for a lawsuit, the prior

grievance is sufficient to exhaust a prisoner’s administrative remedies with respect to

continuing violations at the facility. However, generalized complaints regarding the

conditions of an inmate’s confinement will [not] suffice to shortcut the administrative

remedy process.” (quotations and citations omitted)). But this exception identified by the

Second Circuit in Johnson applies only to the same conduct occurring after an initial

grievance is filed and will not serve to constitute exhaustion of earlier conduct not timely

grieved. See Riles v. Semple, No. 3:17-CV-2178 (MPS), 2021 WL 5828068, at *3 (D.

Conn. Nov. 29, 2021) (noting that Johnson “explains that its holding turns on the

conclusion that the plaintiff’s earlier grievance ‘provided the prison administration with

notice of, and an opportunity to resolve’ the problem at issue, as required by the PLRA”

but could not support plaintiff’s request that the court “conclude that his later exhaustion

of his grievance is sufficient to exhaust his claims going backward, rather than forward, in

time”).

Here, Defendants do not address Johnson and instead urge the Court to deny

recovery for every missed Holy Meal not occurring within 21 days of any filed grievance.

As to the meals missed before Plaintiff filed his initial grievance on April 11, 2013 (i.e.,

July 23, 2012; August 17, 2012; October 7, 2012; November 2, 2012; and January 7, 2013),

the Court agrees that Plaintiff did not exhaust claims arising from this alleged misconduct.

Therefore, this portion of Defendants’ motion for summary judgment is granted. See Riles,

2021 WL 5828068, at *3.

However, as to the Holy Meals missed after Plaintiff filed his initial grievance on

April 11, 2013,3 the Court concludes that Plaintiff provided sufficient detail about the

missed Holy Meals to put Defendants on notice of the alleged misconduct. Plaintiff’s

grievances are not merely generalized complaints but instead, contain the specific

allegation that despite requesting and being promised receipt of Holy Meals, Plaintiff

continued to be deprived of the meals. This is the same exact conduct forming the basis of

this litigation. In addition, Plaintiff’s submissions relating to the appeals process indicate

the entire three-step grievance process was satisfied. Accordingly, Plaintiff’s claims

arising from missed Holy Meals after April 11, 2013, have been sufficiently grieved and

Defendants’ motion for summary judgment on the ground of failure to exhaust

administrative remedies for any Holy Meals missed after April 11, 2013, is denied. See

Alster v. Fischer, No. 09-CV-6510 CJS, 2017 WL 3085842, at *9 (W.D.N.Y. July 20,

2017) (“Here, the three matters about which Plaintiff exhausted his administrative remedies

(failure to allow group observance of Jewish Sabbaths and holy days, exclusion of Plaintiff

from Jewish group events and the lack of Jewish worship space) continued as late as August

2009, according to the Amended Complaint. The Court finds that Plaintiff exhausted these

3 The Court notes that any meals missed within the 21 days prior to his first grievance

filed on April 11, 2013, would be timely grieved, but according to Plaintiff’s submissions,

there were no holy days within the 21 days prior to April 11.

claims, since they involve a continuation of the same matters about which he exhausted his

remedies.”).

B. Plaintiff’s First Amendment Claim

Defendants argue that they are entitled to summary judgment on Plaintiff’s First

Amendment claim because he has not established any evidence in support of the claim.

(Dkt. 59-8 at 5). For a prisoner to establish a First Amendment free exercise claim, he first

“must show at the threshold that the disputed conduct substantially burdens his sincerely

held religious beliefs.” Brandon v. Kinter, 938 F.3d 21, 32 (2d Cir. 2019) (quotations

omitted). If this threshold is met, “a defendant can still avoid liability by showing that his

or her conduct is ‘reasonably related to legitimate penological interests.’” Id. (quoting

Holland v. Goord, 758 F.3d 215, 222 (2d Cir. 2014)).

Here, on the instant motion, Defendants do not challenge Plaintiff’s allegedly

sincere belief in the Rastafarian faith. (See Dkt. 59-8 at 6 (“Defendants do not dispute, for

purposes of the motion, that Plaintiff was a sincere Rastafarian who was entitled to receive

all holiday meals he signed up for.”)). Nor do they argue that they possessed a legitimate

penological interest in depriving Plaintiff of any Holy Meals. (See generally id.). Rather,

the disputed issue here is whether there is sufficient evidence that the allegedly missed

Holy Meals “substantially burden[ed]” Plaintiff. Brandon, 938 F.3d at 32.

Generally, “a prisoner has a right to a diet consistent with his or her religious

scruples.” Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003). Thus, “[d]eny[ing] prison

inmates the provision of food that satisfies the dictates of their faith does unconstitutionally

burden their free exercise rights.” McEachin v. McGuinnis, 357 F.3d 197, 203 (2d Cir.

2004). Even a single violation of a prisoner’s religious dietary restrictions can constitute a

substantial burden on a plaintiff’s religious free exercise rights. Brandon, 938 F.3d at 35

(“In the context of religious feasts and fasting, our Circuit has previously held that a small

number of noncompliant meals—even a single violation—can be a substantial burden.”).

While there is not a bright-line test, in Brandon, the Second Circuit expressly found that

“the court below made a[n] . . . error when it concluded that no reasonable jury could find

that the denial of 10 meals was a substantial burden.” Id.; see also Wiley v. Baker, No.

2:20-CV-154, 2022 WL 3045042, at *6 (D. Vt. June 10, 2022) (noting that “the case law

is not clear on precisely how many missed or untimely meals during Ramadan would

constitute a ‘substantial burden’ to a Muslim inmate”), report and recommendation

adopted, No. 2:20 CV 154, 2022 WL 3042140 (D. Vt. Aug. 2, 2022); cf. Flores v. City of

New York, No. 21CV1680PGGKHP, 2022 WL 4705949, at *25 (S.D.N.Y. Aug. 8, 2022)

(“Nonetheless, ‘incidents that are isolated, or few in number, involving a denial of

religiously-mandated food, do not give rise to a First Amendment claim.’” (quoting

Maldonado v. Westchester County, 2021 WL 356155, at *5 (S.D.N.Y. Feb. 2, 2021)),

report and recommendation adopted, No. 21CIV1680PGGKHP, 2022 WL 4592892

(S.D.N.Y. Sept. 30, 2022).

Defendants argue that Plaintiff must demonstrate Defendants acted with more than

mere negligence to establish a First Amendment claim. (Dkt. 59-8 at 8, 9 (citing Lombardo

v. Freebern, No. 16-CV-7146 (KMK), 2019 WL 1129490, at *10 (S.D.N.Y. Mar. 12,

2019); Hankins v. NYS Dep’t of Corr. Servs., No. 9:07-CV-0408 (FJS/GHL), 2008 WL

2019655, at *5 (N.D.N.Y. Mar. 10, 2008)). The Second Circuit has not expressly stated

whether merely negligent conduct is sufficient to establish a free exercise claim. Brandon,

938 F.3d at 38 (“Our Circuit has not stated whether a First Amendment free exercise claim

requires more than negligence, and we need not do so here.”). However, it has held that

deliberate indifference can sustain a free exercise claim. Id. (“Brandon has introduced

sufficient evidence to create a genuine dispute as to whether the defendants acted with

deliberate indifference in serving him pork.”).

The deliberate indifference standard has an objective and subjective component:

“First, the alleged deprivation must be, in objective terms, sufficiently serious. Second,

the charged official must act with a sufficiently culpable state of mind.” Brandon v. Kinter

No. 913CV00939BKSATB, 2023 WL 2382637, at *14 (N.D.N.Y. Mar. 6, 2023)

(quotations and citations omitted)). In free exercise claims involving religious meals,

deliberate indifference can be established where “evidence in the record indicates that each

of the defendants who could be found to have been personally involved was aware that [the

plaintiff] had complained at least once” about a religious meal, but continually failed to

serve compliant meals. Brandon, 938 F.3d at 38 (finding reasonable dispute because the

“defendants either directly received a complaint from [the plaintiff] during mealtime or

signed off on a grievance that he filed. And, despite the defendants’ awareness of the

problem, there is evidence . . . that [the plaintiff] continued to be served noncompliant

meals . . . .”).

Here, Plaintiff states a viable claim for the improper deprivation of Holy Meals after

he filed his first grievance on April 11, 2013. The allegations relating to these claims are

not conclusory. In addition to being based on Plaintiff’s personal knowledge, the factual

allegations are supported by the grievances filed and correspondence written

contemporaneously with the allegedly missed meals. Indeed, several of Plaintiff’s

grievances were granted and contained acknowledgements that Plaintiff had not received

Holy Meals. Notwithstanding that acknowledgement, Plaintiff continued to miss Holy

Meals. Accordingly, any defendant personally involved with these deprivations could be

found to have substantially burdened Plaintiff’s religious rights.

Defendants argue that Plaintiff has set forth no evidence that he was deliberately

removed from the list of prisoners to receive special meals and that “[e]ven assuming

Plaintiff did not receive the meals, there are myriad reasons why that did not involve any

of the Defendants.” (Dkt. 59-8 at 6). They suggest that “[i]t is possible that (1) Plaintiff

was placed on the list but the Non-Defendant FSA failed to inform the incarcerated

individual cooks, or (2) the incarcerated individual cooks failed to make the meal, or (3)

the incarcerated individual cooks made the meal but put the wrong cell on the note that was

appended to the meal, or (4) the incarcerated individual transporter failed to bring the meal

to the Block, or (5) the Block Officer removed the meal from the tray, or (6) the

incarcerated individual porter did not deliver the meal to Plaintiff’s cell.” (Id. at 7-8).

Defendants’ list of speculatory reasons that Plaintiff may have missed his Holy Meals only

serves to demonstrate that genuine issues of material fact exist as to why Plaintiff did not

receive the Holy Meals he was entitled to and expected to receive. In other words, there

are genuine issues of material fact as to whether Plaintiff missed his Holy Meals due to

deliberate indifference on the part of Defendants, and therefore, summary judgment would

be inappropriate.

In sum, taking the facts in the light most favorable to Plaintiff, genuine issues of

material fact exist as to whether Defendants failed to provide Plaintiff with his Holy Meals

in a manner sufficient to establish a free exercise claim. See Brandon, 938 F.3d at 32

(material dispute of fact established from conflicting testimony regarding “the number of

noncompliant meals that Brandon was served”); Ford v. McGinnis, 352 F.3d 582, 594 (2d

Cir. 2003) (“[T]here is apparently a factual dispute as to whether [the inmate] was served

a substitute Eid ul Fitr feast on January 7. The scant evidence supporting this assertion

suggests that it is unlikely [the inmate] was served something approximating the Eid ul Fitr

feast on that day.”); Johnson v. Guiffere, No. 9:04-CV-57, 2007 WL 3046703, at *6

(N.D.N.Y. Oct. 17, 2007) (“I find defendant’s failure to offer justification for his denial of

plaintiff’s dieting request to be fatal to his motion, and that accordingly he is not entitled

to summary judgment in connection with the merits of plaintiff’s First Amendment free

exercise claim.”). Accordingly, Defendants’ motion for summary judgment on this basis

is denied.

C. Personal Involvement and Supervisor Liability

Finally, Defendants argue that Chappius, Mizgala, and Rhodes cannot be held liable

for the failure to deliver Plaintiff Holy Meals arising solely from their status as supervisors.

(Dkt. 59-8 at 9-12). “As a fundamental prerequisite ‘[t]o establish[ing] a § 1983 claim, a

plaintiff must show the defendants’ personal involvement in the alleged constitutional

violation.’” Keesh v. Quick, No. 19-CV-08942 (PMH), 2022 WL 2160127, at *5 (S.D.N.Y.

June 15, 2022) (quoting Boley v. Durets, 687 F. App’x 40, 41 (2d Cir. 2017)). It is

undisputed that a constitutional violation must be directly attributable to a supervisory

official in order to establish liability and cannot arise merely from their status as a

supervisor. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (“The [constitutional]

violation must be established against the supervisory official directly.”).

However, Tangreti made clear that this rule does not bar § 1983 claims based on a

supervisor’s deliberate indifference to an alleged constitutional violation. The Second

Circuit explained:

Circuit courts have considered the impact of Iqbal as well. The Tenth Circuit

has concluded that, after Iqbal, [a p]laintiff can no longer succeed on a §

1983 claim against [a d]efendant by showing that as a supervisor he behaved

knowingly or with deliberate indifference that a constitutional violation

would occur at the hands of his subordinates, unless that is the same state of

mind required for the constitutional deprivation he alleges. . . . The focus is

on what the supervisor did or caused to be done, the resulting injury

attributable to his conduct, and the mens rea required of him to be held liable,

which can be no less than the mens rea required of anyone else. Simply put,

there’s no special rule of liability for supervisors. The test for them is the

same as the test for everyone else.

Id. (emphasis added) (citations and quotations omitted). Accordingly, where the

underlying alleged constitutional violation requires deliberate indifference to establish a

§ 1983 claim, this same test applies to claims against any supervisors. Id. As discussed

above, a plaintiff may establish a free exercise claim based a prison official’s deliberate

indifference to their complaints regarding religious meals. See Brandon, 938 F.3d at 38;

Keesh, 2022 WL 2160127, at *6 (“In other words, where a plaintiff advances a free exercise

claim, he must establish that the defendant at least had reason to know ‘the facts rendering

[his conduct] illegal.’”) (quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir.

2001)). Therefore, Plaintiff need only raise a genuine issue of material fact as to whether

Chappius, Mizgala, and Rhodes were personally involved and deliberately indifferent to

his complaints to avoid summary judgment. 4

Plaintiff has done so with regard to Mizgala and Rhodes, but not Chappius. There

is evidence in the record that both Mizgala and Rhodes were personally involved in

addressing Plaintiff’s complaints about the missing Holy Meals, and despite assurances

that they would rectify the issue, they failed to do so. At the very least, there are disputed

issues of fact pertaining to Mizgala’s and Rhodes’ conduct. Specifically, the Third

Grievance names Mizgala and alleges that Mizgala interviewed Plaintiff and personally

promised that Plaintiff would begin receiving Holy Meals. (Dkt. 72-3 at 33). The Fourth

Grievance names Mizgala as well, although it does not allege any specific misconduct. (Id.

at 42-43). Plaintiff’s May 4, 2014, letter to Mizgala references an earlier conversation with

Mizgala and his assurance that Plaintiff would receive his religious meals. (Id. at 15).

4 The Second Circuit in Tangreti noted that Brandon did not consider the changes to

supervisor liability implicated by Iqbal, instead deriving its supervisor liability holding

from the “special standards” set out in Colon. See Tangreti, 983 F.3d at 617 n.3. However,

this Court is not relying on the portion of Brandon that applied a “special rule” for

supervisor liability under Colon. Instead, as stated above, the Court is relying on

Brandon’s endorsement of the deliberate indifference standard for all free exercise claims,

whether they concern a supervisor or not. Tangreti specifically noted that deliberate

indifference-based claims still apply to supervisors when the underlying claim uses this

same standard. Id. at 618. Accordingly, Brandon’s deliberate indifference standard still

applies for determining supervisory liability in free exercise claims, not because it is a

“special rule” like that used in Colon, but because that is the general rule for all free

exercise claims. Id. at 612; see also Baltas v. Jones, No. 3:21CV469 (MPS), 2021 WL

6125643, at *12 (D. Conn. Dec. 27, 2021) (permitting supervisory claims to go forward

against supervisors who allegedly “substantially burdened [the plaintiff’s] right to free

exercise of his sincerely held religious practices by failing to provide him access to such

practices after he informed [her] of his religious deprivation.”).

Rhodes is also identified in the Fourth and Fifth Grievances, although no specific

misconduct is alleged. (Id. at 42-43, 49-52). However, Plaintiff’s October 29, 2014, letter

to Hawk states that Rhodes personally came to see Plaintiff as part of an investigation into

his grievance regarding his missing Holy Meals. (Id. at 17).

Considering this evidence in the light most favorable to Plaintiff as the non-moving

party, the Court concludes that it is sufficient to survive summary judgment. In other

words, while Mizgala and Rhodes have submitted declarations that deny personal

knowledge of Plaintiff’s allegations (see Dkt. 59-4 at ¶ 2 (Mizgala Declaration); Dkt. 59-5

at ¶ 2) (Rhodes Declaration)), Plaintiff’s nonconclusory allegations, taken in the light most

favorable to him, are sufficient to withstand summary judgment under Brandon’s

deliberate indifference standard. See Brandon, 938 F.3d at 37; Hill v. Cnty. of

Montgomery, 9:14-cv-00933 (BKS/DJS), 2019 WL 5842822, at *6 (N.D.N.Y. Nov. 7,

2019) (“Plaintiffs have introduced evidence that both Amato and Franko were aware of

inmates’ complaints and grievances regarding the insufficient portions and hunger and that

they failed to make any changes to the quantity or quality of the food provided at MCJ . . .

. This evidence raises a genuine issue of material fact . . . .”). Accordingly, summary

judgment for Rhodes and Mizgala on this basis is not warranted and is denied.

However, Plaintiff fails to set forth any allegations regarding Chappius’ personal

involvement with the Holy Meal deprivations. While Plaintiff references Chappius in the

Fourth and Fifth Grievances, he fails to allege any personal involvement in his Holy Meal

deprivations. (See Dkt. 72-3 at 42-43, 49-52). Plaintiff also wrote a letter to Chappius on

April 25, 2013, complaining of the missed Holy Meals. (Id. at 24-25). However, unlike

the aforementioned letter to Hawk which referenced Rhodes personally visiting and

speaking with Plaintiff about his Holy Meals, this letter makes no such reference to any

personal involvement by Chappius. The receipt of a letter, alone, is insufficient to establish

personal involvement under the Brandon deliberate indifference standard. See McCrary v.

Marks, 836 F. App’x 73, 74 (2d Cir. 2021) (granting summary judgment in favor of

supervisor in First Amendment claim because “[d]rawing all inferences in [the plaintiff’s]

favor, the most he has alleged is that [the supervisor] received his letter and directed

someone at the TVPA to respond to it. This is clearly not enough to state claim against

[the supervisor].”). Therefore, summary judgment is granted with respect to all claims

against Chappius.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 59) is

granted to the extent Plaintiff bases his claims on missed Holy Meals before April 11, 2013,

and it is also granted in favor of Chappius, but it is otherwise denied. The Clerk of Court

is directed to terminate Chappius as a defendant in this action.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: March 23, 2023

Rochester, New York