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holding that because the "plain language of the statute" includes individuals in its definition of "government," RLUIPA "[c]learly . . . contemplates individual liability"
Summary of this case from Agrawal v. BrileyOpinion
00-CV-2022 (LEK/RFT)
August 11, 2003
ELISE SUZANNE ZEALAND, ESQ., Sullivan, Cromwell Law Firm, New York, New York for plaintiffs
JAMES A. KENT, ESQ. for plaintiffs
HON. ELIOT SPITZER, Office of the Attorney General, Albany, New York for defendants
ROGER W. KINSEY, ESQ. for defendants
REPORT-RECOMMENDATION and ORDER
Plaintiffs Ayatollah Orafan, Hussein Ishmail Razi-Bey, Al-Amin Abdush-Shaid, Abdul-Wali, and Melsun Muslim, presently confined at various state correctional facilities throughout New York State and in the custody of the New York State Department of Correctional Services ("DOCS"), bring this action pursuant to the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. ("RLUIPA"). Specifically, Plaintiffs contend that Defendants have substantially burdened their rights to freely exercise their religion.
See infra Part I.A discussing Muslim's continued participation in this matter.
Presently before the Court is Defendants' Motion to Dismiss the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(6). Dkt. Nos. 39 (Notice of Motion), 40 (Mem. of Law), 42 (Reply Mem. of Law), 20 (Am. Compl.). Plaintiffs oppose the Motion. Dkt. No. 41. Previously, the Defendants had moved to dismiss the Complaint to which this Court recommended granting in part and denying in part. Dkt. Nos. 1 (Compl.), 6 (Notice of Motion), 7 (Mem. of Law), 14 (Rep. Rec. Order). This Court reserved judgment on two grounds raised by Defendants and provided Plaintiffs an opportunity to amend their Complaint. Dkt. No. 14 at 17-18. United States District Judge Lawrence E. Kahn approved and adopted the Report Recommendation in its entirety for the reasons stated therein, and limited discussion to Defendants' specific objections to the Recommendation. Dkt. No. 36. Thereafter, upon direction from this Court, the Plaintiffs amended their Complaint to cure some of the defects referenced in the Recommendation. The Amended Complaint ameliorates the Complaint in that it specifically states dates on which the Defendants allegedly placed substantial burdens on the Plaintiffs' religious exercise. The Amended Complaint further alleges specific dates when such events were formally grieved through the particular prison's inmate grievance program. Dkt. No. 20. Finally, Plaintiffs have added at least fourteen new Defendants in their Amended Complaint.
See infra Part II.D.2-3.
I. DISCUSSION
The background for this case was elaborately set forth in this Court's prior Recommendation and, therefore, need not be reiterated here. Before, however, this Court addresses the substance of Defendants' present Motion, there are some preliminary housekeeping matters which require immediate attention.A. Preliminary Matters
First, the Plaintiffs assert in their pleading that this case is being brought as a representation of a class and have properly indicated as much on the civil cover sheet. Dkt. No. 20, Am. Compl. at ¶¶ 37-38 (referencing the suit as brought by Plaintiffs on behalf of a class). Plaintiffs had previously been advised of the proper procedure to follow when seeking to bring a cause of action on behalf of a class. Specifically, the Honorable Ralph W. Smith, retired United States Magistrate Judge and predecessor to the undersigned, indicated that "[u]ntil a formal motion seeking class certification has been filed by the Plaintiffs and granted by this Court . . . this action shall be considered only as an action brought on behalf of the named Plaintiffs to the lawsuit." Dkt. No. 2 at 2-3.
At the time Plaintiffs file their Complaint initiating this action, the Local Rules in effect required only these two steps. On January 1, 2003, an amendment was added to the Local Rules, in effect, clarifying the Federal Rules, and requiring the plaintiff to file a motion with the assigned district judge "as soon as practicable after the commencement of an action designated as a 'Class Action.'" This motion seeking class certification is also set forth in FED. R. CIV. P. 23.
In any action sought to be maintained as a class pursuant to FED. R. CIV. P. 23, the Local Rules of this District require the words "class action" to appear next to its caption in the complaint or other pleading and that the plaintiff check the appropriate box on the Civil Cover Sheet at the time of filing the action. N.D.N.Y.L.R. 23.1. Furthermore, the Federal Rules dictate prerequisites which must be satisfied before a case may be maintained as a class action. FED. R. CIV. P. 23(a)-(b). Such a showing shall be made "[a]s soon as practicable after the commencement of an action brought as a class action." FED. R. CIV. P. 23(c)(1). Once such showing has been made, the court can then issue an order determining whether the action shall be maintained as a class action. FED. R. CIV. P. 23(c).
In the instant case, despite previous intimation by this Court, the Plaintiffs have failed to file a motion with the Honorable Lawrence E. Kahn, United States District Court Judge assigned to this case. Until that motion is filed, in accordance with Federal and Local Rules setting forth factors which establish class certification, this Court will not treat the case as such, but rather as brought solely by and on behalf of the individually named Plaintiffs. The docket reflects that this case was commenced on December 28, 2000. Dkt. No. 1. As the Federal Rules specifically state that a class certification showing should be made "as soon as practicable" after the commencement of the suit, Plaintiffs are hereby directed to move for class certification before Honorable Lawrence E. Kahn for class certification within thirty (30) days of the filing date of this Report-Recommendation and Order. If the Plaintiffs fail to seek such certification this suit shall continue, but only on behalf of the individually named Plaintiffs.
The second matter which requires this Court's attention concerns various parties named in the action. First, Melsun Muslim, aka Willis Amaker, is listed as a Plaintiff in the record as he was included in the Original Complaint. Dkt. No. 1 at ¶ 8. However, it appears as though Muslim's name was omitted from the Amended Complaint. Dkt. No. 20. It is unclear whether the omission occurred through inadvertence or was a deliberate exclusion. Nor is it clear to this Court whether Muslim joins in the Plaintiffs' opposition to Defendants' Motion to Dismiss.
According to the Federal Rules of Civil Procedure, "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative." FED. R. CIV. P. 21 (emphasis added). The invitation to amend Plaintiffs' Complaint was set forth in this Court's Report and Recommendation. The scope of that invitation was, in effect, a request for the Plaintiffs to supplement certain aspects of the Complaint thereby enabling this Court to ascertain whether the statute of limitations would bar suit. Dkt. No. 14 at 17-18. This Court acknowledges that although permission to file an amended complaint was set forth in our previous Report and Recommendation, no where did the Court or the parties intimate that a Plaintiff would be eliminated from this action via those amendments. In fact, as stated, when seeking to drop a party from the lawsuit, it is more appropriate that the parties follow the procedure set forth in Rule 21 and not Rule 15. duPont Glove Forgan Inc., v. Arnold Bernhard Co., Inc., 73 F.R.D. 313, 314 (S.D.N.Y. 1976); Nat'l Maritime Union of America v. Curran, 87 F. Supp. 423, 425 (S.D.N.Y. 1949) (stating that an amendment of a pleading where parties are dropped "can only be made by order of the court").
Similarly, the Plaintiffs did not seek permission to add new defendants in the amended complaint, however, as most of the Defendants (including the newly added Defendants) have been properly served and have joined in the Motion to Dismiss without objections to their inclusion, the issue is moot.
If the Plaintiffs wish to drop a party from this action, they are hereby directed to follow the proper procedure. As the granting of such motion is discretionary with the Court, the Plaintiffs are advised to set forth the requisite showing in justifying omission of this party from further participation in this action. At this juncture, the Court will not opt to exercise its authority under Rule 21 to drop a party on its own initiative, but rather, will provide the Plaintiffs with an opportunity to either make a formal motion under Rule 21 within thirty (30) days of the filing date of this Order, or, in the alternative if the omission was inadvertent and Muslim is to remain a party, to indicate his continuing participation in writing within ten (10) days from the filing date of this Order.
As a final housekeeping matter, the Court will address the Defendants' contention regarding service of process. The Defendants assert, in their Memorandum of Law in Support of the Motion to Dismiss, that Defendants Shaykh Ismail A. Rayhim, R.W. Santor, and Robert Guzman have not been served with process. Dkt. No. 40 at 2 n. 2. In their reply brief to Plaintiffs' opposition papers, Defendants again assert a failure to serve, but only as to Robert Guzman. Dkt. No. 42 at 1 n. 1.
The docket clearly reflects that Defendants Santor and Rayhim have indeed been properly served as indicated on the summonses which were returned "executed." Dkt. Nos. 23-24. However, this Court cannot ascertain from the docket, nor anywhere else, whether Defendant Guzman has been properly served. The record reflects that the parties stipulated to allow the Plaintiffs an extension of time, until May 15, 2003, to serve Mr. Guzman as it appeared he was out of state for the winter. Dkt. No. 37. Despite this enlargement of time, the Court has not received any indication of proper service.
The Court reminds Plaintiffs it is their sole responsibility to ensure that each Defendant is properly served in this action as set forth in FED. R. CIV. P. 4(c)(1). Specifically, a plaintiff must effectuate service of process within 120 days of the filing of the complaint. FED. R. CIV. P. 4(m). Failure to properly serve any defendant in accordance with the Federal Rules will result in this Court, upon motion or on its own initiative, to dismiss the case without prejudice as to that defendant. Id. In light of the above, the Plaintiffs have twenty (20) days from the filing date of this
Under the Local Rules for the Northern District of New York, a plaintiff must effectuate service within sixty (60) days. N.D.N.Y.L.R. 4.1(b).
Order to serve Defendant Guzman and ten (10) days thereafter to file certification of service with the Court in accordance with the Local Rules of this District. N.D.N.Y.L.R. 5.1. If, however, Defendant Guzman has already been served, the Plaintiffs have ten (10) days from the filing date of this Order to file certification of service.
B. Substantive Claims
Defendants have asserted eight different bases in support of their Motion to Dismiss, some of which were previously presented and adjudicated in the first Motion to Dismiss: (1) Failure to Exhaust Administrative Remedies; (2) Failure to State a Claim; (3) Eleventh Amendment Immunity; (4) Qualified Immunity; (5) Statute of Limitations; (6) Pre-RLUIPA Monetary Damages Claims Barred; (7) Monetary Claims Against Individuals Barred; and (8) Res Judicata/Collateral Estoppel.
In fact, much of the Memorandum of Law in Support of the Motion to Dismiss is an exact replica of Defendants' First Memorandum of Law supporting their first Motion to Dismiss. Compare Dkt. No. 7 with Dkt. No. 40. Defendants' first Motion to Dismiss included the following grounds: (1) Failure to Exhaust Administrative Remedies; (2) Failure to State a Claim; (3) Eleventh Amendment Sovereign Immunity; (4) Qualified Immunity; (5) Statute of Limitations; and (6) Pre-RLUIPA Monetary Damages Claims Barred. Dkt. Nos. 7. With the exception of grounds five and six, this Court, and the District Court via adoption, adjudicated the merits of each ground and thus the law of the case doctrine bars many of Defendants grounds in the current Motion. See infra Part II.C discussing applicability of the law of the case doctrine.
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.; see also Wheeldin v. Wheeler, 373 U.S. 647, 648 (1963) (inferring fact from allegations of complaint). "Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice. Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997).
In construing the complaint favorably to the pleader, the court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). In spite of the deference the court is bound to ascribe to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
With these standards in mind, the Court will first address those claims previously adjudicated in the prior Motion to Dismiss.
C. Law of the Case Doctrine
The law of the case doctrine "'posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 7-8 (2d Cir. 1996) (quoting Dilaura v. Power Auth., 982 F.2d 73, 76 (2d Cir. 1992)). Different variations of this doctrine exist in terms of its preclusive effect. For example, when an issue has been adjudicated by an appellate court, then the district court is bound to follow such ruling. United States v. Cirami, 563 F.2d 26, 32-33 (2d Cir. 1977) ("When an appellate court has once decided an issue, the trial court, at a later stage of the litigation, is under a duty to follow the appellate court's ruling on that issue."). When, however, the district court has made its own determination, following that rule is discretionary and a court is not limited from reconsidering its own decisions prior to final judgment. Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); First Nat'l Bank of Hollywood v. American Foam Rummber Corp., 530 F.2d 450, 453 n. 3 (2d Cir. 1976) ("In this Circuit, the law of the case is a discretionary doctrine that need not be applied when no prejudice results from its omission."). Absent cogent or compelling reasons, including an intervening change of controlling law, availability of new evidence, or to correct or prevent a clear manifest injustice, the law of the case governs and should not be departed from. Dilaura v. Power Auth, 982 F.2d 73, 76 (2d Cir. 1992); Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983); see also U.S. v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002).
Only those questions actually decided become law of the case. Quern v. Jordan, 440 U.S. 332, 347 n. 18 (1979). In determining whether the law of the case doctrine applies, this Court must decipher the nature of the prior ruling in this matter. As Judge Kahn's prior Order was made on a motion to dismiss, the scope of the inquiry was necessarily limited to questions of law, and accordingly, the law of the case would apply to all the rulings contained therein.
1. Exhaustion of Administrative Remedies
The first basis Defendants assert in support of the present Motion to Dismiss is their contention that the Plaintiffs have failed to exhaust their administrative remedies as mandated by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. Dkt. No. 40. This argument was presented not only in their prior Motion to Dismiss but was also raised in their objections to the Report and Recommendation. Dkt. No. 7 at 1-4; Dkt. No. 15 at 2-4.
The Defendants are reminded that exhaustion of administrative remedies under the PLRA is an affirmative defense. Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). Once raised, the Defendants bear the burden of proving that administrative remedies have not been exhausted. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999). Both this Court and District Judge Kahn found this ground to lack merit. First, the Plaintiffs sufficiently pled exhaustion of remedies even before they amended their Complaint, and second, perhaps more importantly, "[i]n merely offering conclusory assertions that Plaintiffs have not exhausted their administrative remedies, Defendants have failed to meet their burden." Dkt. No. 36 at 3. Defendants similarly reassert that the Plaintiffs must submit and exhaust claims after the enactment of RLUIPA. This argument was specifically reviewed and rejected by District Judge Kahn as no support for such a declaration had been provided. Dkt. No. 36 at 4 ("In light of the relative informality of the inmate grievance system and the short limitation period, inmates cannot be prohibited from bringing a suit in federal court based on causes of action that became available after the inmates pursued administrative remedies.") The Defendants have not asserted any arguments in satisfying their burden nor have they provided any intervening controlling law. Instead, they merely reallege conclusory assertions, the merits of which have already been adjudicated. Thus the law of the case applies to this ground.
The only new argument presented in this ground stems from some of the Plaintiffs' amendments specifically listing dates of alleged offense and grievances filed. The Defendants assert some of the Plaintiffs' grievances are still pending, thus exhaustion could not have been accomplished. Dkt. No. 40 at 4 (referring to Dkt. No. 20, Am. Compl. at ¶¶ 51, 60, 64, 65-69, 72). On this basis, the Defendants seek a dismissal of the entire Amended Complaint as it is "mixed" in that it includes both exhausted and unexhausted claims. At the outset, this Court acknowledges that dismissing an entire complaint on such grounds is not the controlling law in this Circuit. See, e.g., Hattley v. Goord, 2003 WL 1700435, at *4 (S.D.N.Y. Mar. 27, 2003) (acknowledging that the Supreme Court, in ruling in Porter v. Nussle, 534 U.S. 516 (2002), that all prisoner claims must be exhausted, left open the question of how to handle a mixed complaint and further noting that the Second Circuit also has not ruled on how courts should treat mixed complaints). In fact, dismissing the entire complaint on the basis that it presents mixed claims does not appear to be the majority rule followed throughout the Circuits. See id. (providing an analysis of the rift amongst the circuit and district courts).
Second, the Court reiterates the impropriety of resolving this issue at this stage of the litigation especially in light of the potential for this case to be class certified, in which case the Plaintiffs may be required to exhaust only one claim on behalf of the entire class. See U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1130 (2d Cir. 1974) (declaring, on the basis of futility, that since other prisoners exhausted their state remedies and are asserting habeas corpus claims on behalf of a certified class, the remaining members of the class need not similarly exhaust their claims as such exhaustion would be futile and would only unnecessarily inundate the state courts); Escalera v New York City Housing Auth., 425 F.2d 853,867 (2d Cir. 1970) (asserting a member of a class may still maintain suit in lieu of exhausting remedies since another member of the class who brought an identical action on behalf of the class has exhausted remedies); see also Jones v. Berge, 172 F. Supp.2d 1128 (W.D. Wis. 2001) (fact that one inmate exhausted administrative remedies with respect to § 1983 claim at issue was sufficient to satisfy requirement for entire class).
2. Failure to State a Claim
Defendants' second ground in support of dismissal is that the Complaint poses nothing more than conclusory allegations. This ground was also raised in the previous Motion to Dismiss as well as in their objections to the Recommendation. Dkt. No. 7 at 4-5; Dkt. No. 15 at 4-5. In making this claim, the Defendants assert that this Court agreed with their contention that the Complaint was inadequate and thus ordered the Plaintiffs to file an Amended Complaint. Dkt. No. 40 at 7-8. Defendants would now have this Court believe that the Plaintiffs have failed to comply with that Order. Id. This is not an accurate description of this Court's prior Order. First of all, the Plaintiffs were directed to file an amended complaint only to supplement the two issues this Court reserved judgment on: Statute of Limitations and Pre-RLUIPA Damages. In fact, we specifically stated that although the Plaintiffs' claims are vague as to time and place, they sufficiently allege restrictions imposed and the violation of their ability to freely exercise their religion. Dkt. No. 14 at 11. To this, the District Judge agreed. Dkt. No. 36 at 4 ("As Magistrate Judge Treece explains in detail, Plaintiffs' complaint sets forth sufficiently specific allegations to survive a motion to dismiss."). The Court cannot fathom how the Defendants can claim that we somehow agreed with their argument when such argument was outright rejected. Dkt. No. 14 at 11 ("Based solely on the face of Plaintiffs' complaint, these allegations are sufficient to state a claim under RLUIPA. Accordingly, it is recommended that Defendants' motion to dismiss on this ground be denied."). As the issue had been presented to both judges assigned to this case, the law of the case applies.
As an aside, the Court recognizes that despite Defendants' perception, the Amended Complaint is more specific than Rule 8 requires, thus it survives a 12(b)(6) motion on its own merit. See FED. R. CIV. P. 8, 10, 12.
3. Eleventh Amendment Sovereign Immunity
The Defendants raise the issue of sovereign immunity under the Eleventh Amendment as posing a bar to Plaintiffs' suit. We presume that perhaps this ground has been realleged because the Amended Complaint added Defendants who are being sued for monetary damages in their official capacity. This Court previously ruled on this issue in the Report and Recommendation. Dkt. No. 14 at 11-14. This Court previously held, and District Judge Kahn agreed, that Plaintiffs' claims for monetary damages against the Defendants in their official capacities were dismissed. Id. at 14. Plaintiffs' contention that the State waived its sovereign immunity in accepting federal funds was specifically considered and rejected in the prior Recommendation. Therefore, such ruling remains the law of the case and, again, to the extent that Plaintiffs' Amended Complaint may be read to allege claims for monetary damages against the Defendants in their official capacities, such claims may be dismissed with prejudice.4. Qualified Immunity
The Defendants next assert protection under the doctrine of qualified immunity. Again, this ground had been presented to both this Court and District Judge Kahn. Dkt. No. 7 at 7-9; Dkt. No. 15 at 5-7. While this Court deemed the ground to be premature, District Judge Kahn held that "Plaintiffs' complaint alleges that Defendants engaged in activity which, if true, violated Plaintiffs clearly established First Amendment rights, even under the less stringent standard to which Defendants refer." Dkt. No. 36 at 4 (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) and Employment Dive. Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)). Thus, the law of the case doctrine applies and this ground is, again, rejected.D. New Grounds in Support of Motion to Dismiss
The remaining grounds included in support of Defendants' Motion to Dismiss are raised for the first time, thus, the law of the case doctrine will not bar this Court's consideration of the merits.
1. Federal Funding
RLUIPA specifically applies to programs or activities receiving federal financial assistance. 42 U.S.C. § 2000cc(a)(2)(A). Defendants proffer that since the Plaintiffs failed to pinpoint a particular program receiving federal funds they are precluded from bringing suit under RLUIPA. They further maintain that as the Plaintiffs have failed to join New York State or DOCS as a party to the action, any determination made by this Court will not have a binding effect on the State, and further, even if the State were a party, it is not bound by the dictates of RLUIPA since there is no nexus between receipt of federal funding and the particular program challenged in this case. To support this contention, the Defendants rely on the Second Circuit's decision in Soberal-Perez v. Heckler, 717 F.2d 36, 41 (1983), for the proposition that the "mere reception of funds for one program does not automatically make an agency amenable to suit for alleged discrimination in other programs." Dkt. No. 40 at 9.
We believe that the Defendants' reliance on this case is wholly misplaced. In Soberal-Perez, the Second Circuit grappled with the application of Title VI of the Civil Rights Act of 1964 to direct benefit programs such as Title II and XVI of the Social Security Act. 717 F.2d 36, 37 (2d Cir. 1983); 42 U.S.C. § 401-431; 42 U.S.C. § 1381-1383; 42 U.S.C. § 2000d. The court noted that the definition of "recipient" as set forth in Title VI does not include "federal agencies which directly administer programs such as Titles II and XVI of the Social Security Act." Id. at 39; 42 U.S.C. § 2000d-4a. The court further explained that the legislative history of the Civil Rights Act reveals that the driving force behind enactment was "in part [to address Congress'] concern that federal moneys not be used to finance racially segregated state, local, and private programs." Id. ("The Congressional Record is replete with statements by representatives and senators indicating that the legislation was intended to cover situations where the federal government extends assistance to a state or local program or activity which in turn distributes it to beneficiaries of the program."); see also Cannon v. University of Chicago, 441 U.S. 677, 704 (1980).
To state that either New York State and/or DOCS is not bound by the dictates of RLUIPA is without merit. It appears as though Defendants have failed to refer to the definition of "programs" which includes " all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a state or of a local government . . . any part of which is extended Federal financial assistance." 42 U.S.C. § 2000d-4a (emphasis added); 42 U.S.C. § 2000cc-5(6) ("The term 'program or activity' means all of the operations of any entity as described in paragraph (1) or (2) or section 2000d-4a of this title."). No where in this definition does it state that a receiver of federal funds is at liberty to decide which programs are under the auspice of RLUIPA. Quite the contrary, as the statute clearly applies to all of the operations. Plaintiffs have sufficiently alleged that DOCS is a state agency which receives federal funds, and in assuming such a statement is accurate, the Defendants' Motion to Dismiss is recommended denied on this ground.
Statute of Limitations
Defendants next assert that Plaintiffs' claims are barred by the statute of limitations. Although raised in the first Motion to Dismiss, the Court reserved judgment of this ground until after Plaintiffs' amended their Complaint providing specific instances of discrimination. Dkt. No. 14 at 17-18. The Plaintiffs' have complied with this Court's request, thus this ground is now ripe for review.Under federal law, a claim asserting a constitutional violation accrues when the Plaintiff "knows or has reason to know of the injury which is the basis of his action." Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (internal quotation marks and citations omitted). "When a plaintiff experiences a continuous practice and policy of discrimination, however, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Id. The continuing violation doctrine is applicable "where the alleged discriminatory acts were part of an official policy or mechanism." Brodrick v. City of New York, 942 F. Supp. 196, 199 (S.D.N.Y. 1996) (emphasis added) (citing Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993)). Generally, isolated and unrelated incidents of discrimination will not invoke application as the Plaintiff must allege a discriminatory program. Lambert, 10 F.3d at 53. However, a continuing violation may be found where "specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (quoting Cornwell, 23 F.3d at 704).
Plaintiffs have alleged that Defendants' discriminatory practices continue to this day. Dkt. No. 20 at ¶¶ 47-48. They also plead numerous related incidents wherein they were denied the right to practice their religion. Id. at ¶¶ 49-72. Thus, Plaintiffs have adequately pled continuing discriminatory practices and, accordingly, the statute of limitations is tolled until the date of the last occurrence. Cornwell, 23 F.3d at 703. Defendants' Motion to Dismiss should be denied on this ground.
3. Monetary Damages for Pre-RLUIPA Claims
The Defendants' next ground for dismissal concerns the retroactive application of RLUIPA. Unlike its predecessor, RLUIPA is silent as to its retroactive applicability. In Landgraf v. USI Film Products, the Supreme Court expounded the approach courts should follow when determining the temporal application of new legislation. 511 U.S. 244 (1994). First, courts must begin with the statutory language to ascertain whether Congress prescribed the statute's temporal reach. Id. at 280. If the statute is silent on such issue, the court must then determine "whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. (quoted in St. Cyr v. I.N.S., 229 F.3d 406, 413 (2d Cir. 2000)). If application of the statute would have such a "retroactive effect," "then, in keeping with our 'traditional presumption' against retroactivity, we presume that the statute does not apply to that conduct." Martin v. Hadix, 527 U.S. 343, 352 (1999) (quoting Landgraf, 511 U.S. at 280); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (Judicial default rules dictate, absent statutory language or other legislative intent to the contrary retroactivity is not favored in the law) (cited in Landgraf, 511 U.S. at 264); St. Cyr v. I.N.S., 229 F.3d at 413; Mojica v. Reno, 970 F. Supp. 130, 168 (E.D.N.Y. 1997).
Drawing our attention back to RLUIPA, it is clear that the statute is silent as to its temporal application and further, applying the statute retroactively would indeed attach new legal consequences with respect to past conduct. In other words, to apply the statute retroactively and award monetary damages for acts predating enactment would violate longstanding judicial default rules. However, although pre-RLUIPA monetary damages are precluded, these rules in no way affect the Plaintiffs' claims for injunctive relief as the function of injunctive relief is to affect the future and not to remedy the past. See Landgraf, 511 U.S. at 293 (Scalia, J. concur). Retroactive application of RLUIPA for monetary damages was specifically considered and rejected in this circuit. Cancer v. Mazzuca, 2003 WL 1702011 (S.D.N.Y. Mar. 28, 2003). As in this case, that court relied on judicial default rules of interpretation when Congress is silent as to temporal reach. The court noted, however, that if the plaintiff were still incarcerated and sought injunctive relief, "a RLUIPA claim would not violate the general presumption against retroactive application of statutory law" since injunctive relief is prospective. Cancer, 2003 WL 1702011, at *6 (citing Prater v. City of Burnside, 289 F.3d 417, 433 (6th Cir. 2002)). Similarly, in considering the temporal reach of RLUIPA, the Tenth Circuit held that "[w]hen the plaintiff's request for relief is a prospective injunction, application of new or amended statutes is not a retroactive application of the law." Kikumura v. Hurley, 242 F.3d 950, 961 n. 5 (10th Cir. 2001) (emphasis added) (citing Landgraf, 511 U.S. at 273-74); see also Dilaura v. Ann Arbor Charter Tp., 30 Fed. Appx. 501 (6th Cir. 2002). Thus, this Court recommends Plaintiffs' claims for monetary damages for events predating RLUIPA enactment be dismissed, however, any claims for injunctive relief regardless of when the actions or events occurred should proceed.
4. Monetary Damages Against Individual Defendants
In light of the above discussion, the Court notes that similarly, any monetary damage claims against individual Defendants for events predating RLUIPA enactment should be dismissed. However, as the Plaintiffs have asserted a continuing violation, the Court will briefly address Defendants' contention that the Act does not apply to individuals. The Defendants assert that RLUIPA applies to those entities receiving federal funds which does not include the Defendants being sued in their individual capacity. Dkt. No. 40 at 19. Once again, the Defendants have failed to read the plain language of the statute. RLUIPA provides in pertinent part "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution. . . ." with the term "government" defined as
(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (I); and
(iii) any other person acting under color of State law; and. . . .42 U.S.C. § 2000cc-1(a) 2000cc-5(4)(A).
Clearly the Act contemplates individual liability, thus, Defendants' asseveration to the contrary has no merit.
5. Res Judicata/Collateral Estoppel
Finally, Defendants maintain that Plaintiffs' claims are barred by res judicata and/or collateral estoppel. Defendants primarily rely on two Southern District court decisions, Pugh v. Goord, 184 F. Supp.2d 326 (S.D.N.Y. 2001) and Cancer v. Mazzuca, 2003 WL 1702011 (S.D.N.Y. Mar. 28, 2003).
The concepts of res judicata and collateral estoppel, based in consideration of judicial time and economy, are by no means novel concepts. Generally res judicata, or claim preclusion, is an affirmative defense to be pleaded in the defendant's answer. See FED. R. CIV. P. 8(c). "However, when all relevant facts are shown by the court's own records, of which the court takes notice, the defense may be upheld on a Rule 12(b)(6) motion without requiring an answer." Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992); see also Thompson v. County of Franklin, 15 F.3d 245, 253 (2d Cir. 1994). Thus, in this case, the grounds for preclusion must be apparent on the face of the Amended Complaint. When a judgment on the merits is entered in a case, the doctrine of res judicata commands preclusive effect not only on matters of law already decided, but also those which could have been raised. Allen v. McCurry, 449 U.S. 90, 94 (1980) (cited in Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994)). This preclusive effect applies only to future cases involving the same parties and their privies. In this Circuit, res judicata applies "to preclude later litigation if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action." In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir. 1985) (citations omitted). On the other hand, under collateral estoppel, or issue preclusion, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen, 449 U.S. at 94 (quoted in Burgos, 14 F.3d at 789). Notably, with collateral estoppel, the party who is to be estopped from relitigating an issue must have been afforded due process in the prior litigation, or in other words, notice and and an opportunity to be heard on the matter. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329 (1971). More succinctly, res judicata bars claims regardless of what issues were actually presented, whereas collateral estoppel bars only those issues which have been litigated and resolved.
The key to both doctrines, and fatal to Defendants' claim, is the party's involvement in the prior action. In relying on an issue decided in Pugh merely because two of the defendants in that case are similarly included in this case, the Defendants conveniently omit the fact that none of the Plaintiffs in this action were parties in Pugh or Cancer . "It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7 (1979) (cited in Staten Island Rapid Transit Operating Auth. v. I.C.C., 718 F.2d 533, 542 (2d Cir. 1983)); see also Hansberry v. Lee, 311 U.S. 32, 40 (1940). Similarly, the Defendants fail to convince this Court that any Plaintiff in this action was in privity to any plaintiff in the cited actions. Moreover, although this Court recognizes that there are instances where even a nonparty may be barred, such preclusion may only be asserted when the precluded party's interests have been adequately represented in a previous lawsuit. Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995) (citing Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir. 1977)). Since in both of Defendants' proffered cases, the plaintiffs represented themselves, this Court is hard pressed to buy into the notion that these Plaintiffs' interests were adequately represented. As such, these Plaintiffs are entitled to their "day in court."
Notably, the pro se plaintiffs in Pugh were denied class certification as the court held that pro se plaintiffs could not act as class representatives. Pugh, 184 F. Supp.2d at 331. Even more telling is the fact that the Pugh plaintiffs brought suit pursuant to 42 U.S.C. § 1983 asserting violations of their First and Fourteenth Amendment rights, whereas the Plaintiffs in this case are bringing suit pursuant to RLUIPA, thus, this Court will not entertain the notion that the two defendants, Ismail and LoConte, involved in both actions should benefit from the doctrines based on their privity as a government official sued in their official capacity. See, e.g., 18 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 131.40[3][e][ii][A] (3d ed. 1999).
WHEREFORE, based on the foregoing, it is hereby
RECOMMENDED, that the Defendants' Motion to Dismiss the Amended Complaint be granted only as to all monetary damages sought against Defendants in their official capacities as well as any monetary damages sought against individual Defendants for incidents predating RLUIPA enactment; and it is further RECOMMENDED, that Defendants' Motion to Dismiss the Amended Complaint be denied in all other respects for the reasons stated above; and it is further
ORDERED, that if the Plaintiffs intend this action to be classified as a "class action" they move for class certification before Honorable Lawrence E. Kahn for class certification within thirty (30) days of the filing date of this Report-Recommendation and Order. If the Plaintiffs fail to seek such certification this suit shall continue, but only on behalf of the individually named Plaintiffs; and it is further
ORDERED, that Plaintiffs either make a formal motion under Rule 21 to remove Plaintiff Muslim from this action within thirty (30) days of the filing date of this Order, or, in the alternative if the omission of Plaintiff Muslim was inadvertent and Muslim is to remain a party, to indicate his continuing participation in writing within ten (10) days from the filing date of this Order; and it is further
ORDERED, that the Plaintiffs have twenty (20) days from the filing date of this Order to serve Defendant Guzman and ten (10) days thereafter to file certification of service with the Court in accordance with the Local Rules of this District. N.D.N.Y.L.R. 5.1. If, however, Defendant Guzman has already been served, the Plaintiffs have ten (10) days from the filing date of this Order to file certification of service; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order, by regular mail, upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).