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Michalski v. Semple

United States District Court, D. Connecticut

October 6, 2017

MARCO A. MICHALSKI et al. Plaintiffs,
v.
SEMPLE, et al., Defendants.

          INITIAL REVIEW ORDER

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         On December 13, 2016, Marco A. Michalski and Patrick S. Camera (collectively “Plaintiffs”) initiated this action under 28 U.S.C. § 1983 against twenty-nine individuals from the Connecticut Department of Correction (“DOC”): Commissioner Scott Semple, Assistant Deputy Commissioner Monica Rinaldi, Warden Scott Erfe, Deputy Warden Richard Laffargue, Reverend Anthony Bruno, Imam Shamma, Unit Manager Valeriano, Captain Torres, Captain Bailey, Correction Officer Williams, Correction Officer Mataos, Correction Officer Milio, Correction Officer Yaharey, Correction Officer St. John, Correction Officer Tello, Correction Officer Edwards, Correction Officer Sterno, Correction Officer Lawler, Correction Officer Viska, Correction Officer Robinson, Correction Officer “John Doe, ” Correction Officer King, Correction Officer Buckland, Correction Officer Little, Correction Officer Rowald, Correction Officer Ellis, Correction Officer Whitehead, Correction Officer Lopes, and Correction Officer Salgado (collectively “Defendants”). ECF No. 1. Plaintiffs are suing all Defendants in their individual and official capacities for violating Plaintiffs' rights guaranteed under the First, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

         On December 22, 2016, the Court granted Michalski's motion to proceed in forma pauperis. ECF No. 7. Despite two notices, Camera never filed a sufficient application to proceed in forma pauperis. ECF No. 8; ECF No. 13. In accordance with the Court's Order on March 17, 2017, Camera is DISMISSED as a party to this action. See ECF No. 13.

         On July 24, 2017, the Court accepted Michalski's Amended Complaint, ECF No. 17, removing Camera from the case along with defendants Torres, Bailey, Doe, Little, and Rowald, whose alleged actions solely related to Camera. Mot. to Amend Compl, ECF No. 16. The Court therefore will dismiss defendants Torres, Bailey, Doe, Little and Rowald from this case and review the amended complaint against the remaining defendants pursuant to 28 U.S.C. § 1915A.

         For the reasons that follow, defendants Torres, Bailey, Doe, Little, Rowald, and Salgado are DISMISSED as defendants to this action. Michalski's Motions to Proceed and Commence Service, ECF No. 14, 22, are DENIED as moot.

         Michalski's claims for monetary damages against all defendants in their official capacities are DISMISSED under 28 U.S.C. § 1915A(b)(2). Michalski's retaliation claims are DISMISSED without prejudice. Michalski's Fifth and Eighth Amendment claims are also DISMISSED.

         Michalski's First Amendment Free Exercise and Establishment Clause claims may proceed against defendants Semple, Rinaldi, Bruno, Shamma, Erfe, Laffargue, Valeriano, Williams, Mataos, Milio, Yaharey, St. John, Tello, Ellis, Edwards, Sterno, Lawler, Viska, Robinson, Lopes, King, Buckland, and Whitehead in their individual capacities for monetary relief and in their official capacities for declaratory and injunctive relief. Michalski's RLUIPA claims may proceed against those same defendants in their official capacities for injunctive relief only. The Fourteenth Amendment Equal Protection Clause claims may proceed against Semple, Rinaldi, Bruno, Shamma, Erfe and Laffargue in their individual capacities for monetary relief and in their official capacities for declaratory and injunctive relief.

         I. ALLEGED FACTUAL BACKGROUND

         Michalski alleges he is a devout Native American, who is and was at all times relevant to this matter, incarcerated at Cheshire Correctional Institution (“Cheshire CI”) in Cheshire, Connecticut. The DOC allegedly employs only two Native American elders to conduct religious services for Native American inmates, and these services are alleged to be held only once per week, while services for other religious denominations are held anywhere from three to seven times weekly. Michalski claims that the act of “smudging, ” a purifying or cleansing technique consisting of burning sacred plants and communal prayer, is central to Native American religious practice. Because it is done without a Native American chaplain, individual smudging, on the other hand, is allegedly not a religious service.

         Cheshire CI allegedly limits smudging to those inmates financially capable of purchasing smudging supplies and, therefore, denies indigent inmates the ability to smudge. In other facilities, Native American chaplains allegedly provide smudging supplies to all Native American inmates. DOC allegedly permits inmates designated as Native American to individually smudge and purchase smudge supplies using a restrictive order form. Under Cheshire CI policy, individual inmates are allegedly permitted to smudge once per day by requesting smudge time from their unit manager. Collective smudging was allegedly permitted during regularly scheduled Native American services, but Cheshire CI allegedly has not permitted collective smudging since August 2015. Cheshire CI, however, now conducts Native American Prayer Circle once per week.

         Unlike Islamic inmates, who are allegedly permitted to shower before collective prayer services, Native American inmates are allegedly not permitted to “cleanse” or purify themselves prior to prayer. Moreover, DOC allegedly permits inmates to purchase only three herbs for smudging: sage, cedar and kinnikinnick. DOC prohibits the purchase of tobacco, the most sacred and most important herb for smudging. Defendants Semple, Rinaldi, Bruno, Shamma, Erfe, and Laffargue allegedly dictate or enforce the rules regarding available smudging supplies and ceremonies in the prisons. They also allegedly restrict access to “sweat lodge, ” another instrumental rite of the Native American religion, to once every two months, whereas other prisons across the country allegedly permit the use of sweat lodge once per week. Moreover, Cheshire CI allegedly provides four Islamic and eleven Christian services per week, but only one weekly Native American service.

         While Cheshire CI allegedly provides educational and cultural activities for Catholic and Islamic inmates, such as Bible study, choir, and Qur'an study, it allegedly does not provide any comparable opportunities for Native American inmates. The library at Cheshire CI allegedly has a “spirituality” section, which offers books on Catholicism, Islam, and Christianity, but nothing regarding the Native American religion. Despite allegedly housing over 700 Native American inmates, DOC allegedly provides only one Native American religious article for purchase through commissary, compared to nine Catholic articles, sixteen Islamic articles, and three Jewish articles. Allegedly, under DOC policy, each religious designation shall have no less than two services per month, but, at Cheshire CI, the policy is allegedly routinely ignored for Native American services.

         Cheshire CI allegedly suspended Native American religious services from March 2016 to August 2016, due to a chaplain being injured, During that time, Shamma allegedly confiscated Michalski's smudging supplies as “contraband” and only return them several months later. An item allegedly is considered contraband only if it is not approved for purchase through commissary. Upon returning the items to the “A/P room, ”[1] Shamma allegedly warned Michalski that he would confiscate Michalski's smudging supplies again if Michalski did not use them daily. Michalski claims he filed two administrative grievances regarding the suspension of Native American services, but the grievances were allegedly ignored.

         Individual smudge call at Cheshire CI allegedly takes place at 5:45 a.m. on weekdays and 4:15 a.m. on weekends and holidays. The correctional officer allegedly assigned to the A/P room is tasked with announcing “smudge call” to all officers in the facility over the radio. The officers allegedly then transport the Native American inmates from their units to the A/P room. The inmates are allegedly provided twenty minutes to smudge before they are returned to their housing units. Although it is allegedly against policy for an inmate to place anything in his cell window, Michalski allegedly often places a small sign in his cell window to remind the officers about smudge call. At times, smudge call allegedly occurs at the same time as “chow call, ” and Michalski is allegedly then forced to choose between practicing his religion or eating.

         On several occasions in August and September of 2016, Defendants Williams, Mataos, Milio, Yaharey, Tello, Edwards, Sterno, Robinson, Viska and Ellis allegedly disregarded the smudge call announcement and denied Michalski the ability to smudge. When Michalski allegedly inquired about whether smudge call was announced, Yaharey and St. John allegedly became “demeaning, hostile, and threatening.” Allegedly, Tello also responded to Michalski with “racist comments.” On one occasion, Ellis allegedly denied Michalski matches or a cigarette lighter for smudging purposes, allegedly in violation of DOC policy. Michalski allegedly submitted several grievances regarding the denials of smudge call, but allegedly nothing was done about them. Moreover, on September 1, 2016, Whitehead allegedly denied, without justification, all Native American inmates participating in sweat lodge, including Michalski, their concluding meal, which is an integral part of the sweat lodge ceremony.

         On September 16, 2016, Cheshire CI allegedly permitted Native American inmates to celebrate Strawberry Festival, allegedly one of two Native American holidays celebrated with a meal consisting of fresh fruit and vegetables, corn bread, and fresh moose, venison, or buffalo. Before that holiday, Michalski allegedly wrote to Valeriano and Laffargue, requesting that they be permitted to smudge before celebrating the holiday, but Michalski's requests allegedly went unanswered. During the celebration, the DOC staff allegedly denied inmates sufficient time to pray and only provided a cold meal with frozen strawberries, canned vegetables, and processed meat.

         In late September and early October 2016, Tello and Lopes allegedly informed Michalski and other Native American inmates that smudge call was cancelled and ordered the inmates to return to their units. Michalski believes that this was done in retaliation for filing grievances regarding the suspension of services and denials of individual smudging. Michalski allegedly wrote letters to defendant Valeriano complaining about the smudge call cancelations but was allegedly “met with answers contradicting [DOC] Native American Smudge Policy” and procedures. On October 14, 2016, Michalski and three other Native American inmates were allegedly subjected to drug testing in “retaliation for the many grievances and complaints” Michalski had filed. A second drug test allegedly followed one month later.

         On October 21, 2016, Cheshire CI allegedly permitted Michalski and other Native American inmates to celebrate the Native American holiday of Harvest Festival, which is also traditionally celebrated with a communal meal of fresh fruits, vegetables, and meat. On the way to the auditorium to celebrate Harvest Festival, Michalski allegedly was “met with a strong show of force” by the correction officers, who treated him in a “demeaning, hostile manner.” The officers present at the ceremony allegedly continuously interrupted the prayer services. When the ceremony ended, ten-to-twenty officers allegedly harassed Michalski.

         On three occasions in late October 2016, King, Buckland, and Tello allegedly “disregarded” smudge call. In doing so, Buckland allegedly said to Michalski: “I don't care, write me up. I don't have to let you out.” On November 7 and 10, 2016, Salgado allegedly made unprovoked “racist comments” to Michalski.

         Michalski alleges that he was routinely harassed by various correction officers in the hallways, while returning from smudge call. The officers allegedly would chant, make “bird noises, ” or issue “stereotypical comments.” The alleged denials of smudge call increased after Michalski filed grievances against officers in the facility.

         II. STANDARD OF REVIEW

         The Court must “review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”[2] 28 U.S.C. § 1915A(a). The Court must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, ” if the complaint or any of its parts are “frivolous, malicious, or fails to state a claim upon which relief may be granted” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b).

         The Federal Rules of Civil Procedure require that a plaintiff plead only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), to provide the defendant “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570. A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “detailed factual allegations” are not required, a complaint must offer more than “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “naked assertion[s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 555-57. Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and ... recovery is very remote and unlikely.” Id. at 556 (internal quotation marks omitted).

         Pro se complaints, however, “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing the “special solicitude” courts afford pro se litigants).

         III. DISCUSSION

         Michalski contends that Semple, Rinaldi, Bruno, Shamma, Erfe and Laffargue violated Michalski's First Amendment right to the free exercise of religion, his Fourteenth Amendment right to equal protection of the laws and his Eighth Amendment right of protection against cruel and unusual punishment, in addition to violating the First Amendment's Establishment Clause or the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by suspending Native American religious services from March 2016 to August 2016, denying collective smudging, restricting access to the sweat lodge and Native American smudging supplies, including the sacred pipe, providing an unequal number of religious chaplains and literature in DOC facilities, denying equal access to “educational and culturally enriching opportunities” for Native American inmates, and denying “fresh traditional foods” for celebration of the Strawberry and Harvest Festivals.

         Michalski also claims that Valeriano, Williams, Mataos, Milio, Yaharey, St. John, Tello, Ellis, Edwards, Sterno, Lawler, Viska, Robinson, Lopes, King, Buckland, Erfe, Laffargue, Semple, and Rinaldi violated Michalski's rights under the Free Exercise Clause, Eighth Amendment, and RLUIPA by denying him individual smudging on several occasions and that defendant Whitehead violated the Free Exercise Clause and Eighth Amendment by denying him participation in sweat lodge.

         Michalski further claims that defendant Shamma violated the Free Exercise Clause and Eighth Amendment by ...


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