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Ramirez v. Cooke

United States District Court, D. Colorado

December 3, 2014

JOE RAMIREZ, Plaintiff,
v.
SHERIFF JOHN COOKE, UNDER SHERIFF JACK MCGRATH, BUREAU CHIEF STERLING GEESAMAN, and COMMANDER GREGORY BROSWELL, Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, Magistrate Judge.

This civil action comes before the court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint. Pursuant to the Order of Reference dated February 5, 2014 (Doc. #10) and the memorandum dated May 2, 2014 (Doc. #39), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

At the time this civil action was filed, Mr. Ramirez was incarcerated at the Weld County Jail in Greeley, Colorado. ( See Prisoner Complaint (Doc. #1) at p. 2 of 13). Mr. Ramirez filed the Complaint on January 21, 2014. ( See id. ). On April 22, 2014, the court permitted Mr. Ramirez to amend his Complaint to add the following sentence to paragraph 9: "[A]lso during this time the plaintiff has suffered deterioration of his muscles to which he has lost 8 pounds." ( See "Courtroom Minutes/Minute Order" (Doc. #35)). Mr. Ramirez alleges one claim for relief pursuant to 42 U.S.C. §§ 1983 for "Fourteenth Amendment (Cruel and Unusual Punishment)" based on denial of "regular outdoor exercise, " "pull-up bars, " and "fresh air" between October 28, 2013 and December 26, 2013 and denial of "programming to change... negative behavior" and "any significant means to work his way off his ad-seg status." ( See Doc. #1 at 4-10 of 13). Mr. Ramirez seeks compensatory and punitive damages, and declaratory and injunctive relief, among other things. ( See Doc. #1 at 12-13 of 13).

II. Standard of Review

Defendants have moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on several grounds.[1]

Rule 12(b)(1) concerns whether the Court has jurisdiction to hear the case before it. Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction. Jurisdiction is a threshold question that a federal court must address before reaching the merits of a statutory question, even if the merits question is more easily resolved and the party prevailing on the merits would be the same as the party that would prevail if jurisdiction were denied. [S]tatutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction. The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.

Miller v. U.S. Department of Navy, No. 14-cv-00994-RBJ, 2014 WL 3632130, at *2 (D. Colo. July 23, 2014) (internal quotation marks and citations omitted).[2]

A court may also dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6).

To survive a 12(b)(6) motion to dismiss, the complaint must contain enough facts to state a claim to relief that is plausible on its face. While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, purely conclusory allegations are not entitled to be presumed true. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard.

Edmond v. Broadmoor Hotel, Inc., No. 13-cv-03262-RBJ-KLM, 2014 WL 4244015, at *1 (D. Colo. Aug. 27, 2014) (internal quotation marks and citations omitted).

Because Mr. Ramirez appears pro se, the court reviews his "pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, "the generous construction" that is afforded pro se pleadings has limits, and the court "must avoid becoming the plaintiff's advocate." Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir. 2012) (citation omitted). Although the court does not "hold the pro se plaintiff to the standard of a trained lawyer, " it nonetheless relies on "the plaintiff's statement of his own cause of action." Id. (internal quotation marks and citations omitted). Thus, the court "may not rewrite a [complaint] to include claims that were never presented." Id. A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

On May 2, 2014, the court directed Mr. Ramirez to file any response he had to Defendants' Motion to Dismiss on or before June 2, 2014. ( See Minute Order (Doc. #40)). The court's records indicate that Mr. Ramirez's copy of the Minute Order was not returned in the mail as undeliverable. To date, he has not filed any response to the Motion. "[A] district court may not grant a motion to dismiss for failure to state a claim merely because [a party] failed to file a response." Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (internal quotation marks and citation omitted). "This is consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Issa, 354 F.3d 1177-78 (internal quotation marks and citations omitted). "Consequently, even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted." Id.

III. Analysis

A. Individual Capacity Liability

1. Personal Participation

Mr. Ramirez sues Defendants in both their individual and official capacities. ( See Doc. #1 at 2-3 of 13). To the extent that Mr. Ramirez is suing Defendants in their individual capacities, personal capacity suits pursuant to § 1983 seek to impose personal liability upon a government official for actions he or she takes under color of state law. Kentucky v. Graham, 473 U.S. 159, 164, 165-67 (1985). Individual liability under § 1983, regardless of the particular constitutional theory, must be based upon personal responsibility. See Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir.1997) (individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation) (citation omitted); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996) (personal participation is an essential allegation in a civil rights action) (citation omitted).

As to Defendant Cooke, Mr. Ramirez alleges only that "Sheriff John Cooke is in charge of the jail as a whole. As such he oversees any making of policy and procedure as well as ensuring that officers are adequately trained." ( See Doc. #1 at 8 of 13). As to Defendant McGrath, he alleges that "Under Sheriff Jack McGrath is a main link in the chain of command. Like Cooke oversees the enforcement and making of policy and procedure....[sic]"). (See Doc. #1 at 9 of 13). However, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A defendant may not be held liable merely because of his or her supervisory position. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). See also Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (noting that "§ 1983 could not be interpreted to incorporate doctrines of vicarious liability"). The Complaint does not set forth any facts to indicate or even imply that Defendants Cooke or McGrath participated directly in or had any direct knowledge of the alleged constitutional violations. See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998) (it is incumbent upon a plaintiff to "identify specific actions taken by particular defendants" in order to make out a viable § 1983 claim); Lewis v. v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010) ("The record before us lacks any evidence suggesting Dr. Tripp's involvement in any of these... unlawful activities."). Thus, Mr. Ramirez fails to state a claim to which relief can be granted against Defendants Cooke and McGrath.

Mr. Ramirez alleges that Defendant Geesaman "is the final step in the grievance process and the only step in appealing ad-seg status" and that Defendant Broswell "conducts ad-seg reviews monthly" and that the conditions of ad-seg were "brought to his and his supervisors['] attention through the grievance process." ( See Doc. #1 at 10 of 13). However, Mr. Ramirez cannot state these Defendants' personal participation in the alleged constitutional violations based merely on their involvement in the grievance process. See Vigil v. Colo. Dept. Corrections, No. 09-cv-01676, 2011 WL 1518660, at *1 (D. Colo. April 20, 2011) ("In the Tenth Circuit, constitutional allegations against an actor whose only involvement was during the grievance process do not state a claim.") (citations omitted); Walker v. Meyer, No. 08-cv-01911, 2009 WL 961490, *4 (D.Colo. Apr.7, 2009) ("[M]ere participation in the grievance process is an insufficient basis for asserting a violation of constitutional rights.... The mere involvement of processing a grievance at an administrative level does not establish the affirmative link required to establish supervisor liability for an employee's conduct.") (internal quotation marks and citations omitted). See also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) ("denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983"); Larson v. Meek, 240 F.App'x 777, 780 (10th Cir. 2007) (fact that Defendants rejected administrative grievances does not demonstrate personal participation in the underlying action that gave rise to the grievances); Whitington v. Ortiz, No. 07-1425, 307 F.App'x 179, 193 (10th Cir. Jan 13, 2009) (dismissing § 1983 claim against Defendant who denied grievance where "[t]here is no allegation that [defendant] had any authority with respect to official CDOC policy or that he personally participated in any of the deprivations that led [plaintiff] to file the grievance in the first place"). Mr. Rodriguez fails to plead sufficient facts to demonstrate that any of the Defendants personally participated in the alleged violation of his constitutional rights.

2. Cruel and Unusual Punishment

Mr. Ramirez alleges violation of the Fourteenth Amendment based on his status as a pre-trial detainee. ( See Doc. #1 at 8 of 13). The rights of "those persons who have been charged with a crime but who have not yet been tried on the charge, " are governed by the Fourteenth Amendment, which prohibits punishment "prior to an adjudication of guilt in accordance with due process of law." Bell v. Wolfish, 441 U.S. 520, 535 (1979) (footnote omitted); see also Ingraham v. Wright, 430 U.S. 651, 672 n. 40 (1977) ("Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment."). The Supreme Court recognized that the same facts could give rise to both an Eighth Amendment cruel and unusual punishment claim and a substantive due process claim under the Fourteenth Amendment. Whitley v. Albers, 475 U.S. 312, 326-27 (1986). However, "the Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners...." Id. at 327. See also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (while Eighth Amendment prohibits infliction of cruel and unusual punishment upon prisoners, it applies only "after [the State] has secured a formal adjudication of guilt in accordance with due process of law.") (internal quotation marks and citation omitted); Bell, 441 U.S. at 536 n. 17 (Punishment constrained by the Eighth Amendment can be imposed only when it "follow[s] a determination of guilt after trial or plea....").

"The due process rights of a person... are at least as great as the Eighth Amendment protections available to a convicted prisoner." City of Revere, 463 U.S. at 244 (citation omitted). "Every circuit that has considered the question has concluded that the Eighth Amendment is the primary source of substantive rights of prisoners and that, with regard to the rights of convicted prisoners, the legal standards under the Eighth and Fourteenth Amendments generally are congruous." Berry v. City of Muskogee, Okl., 900 F.2d 1489, 1494 n. 6 (10th Cir. 1990) (citations omitted).

We agree with the views of the other circuits. Thus, we conclude that the safety and bodily integrity of convicted prisoners implicates both the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's substantive protection against state deprivation of life and liberty without due process of law, and that the legal standards under the two amendments are identical under the facts of this case. Because the Eighth Amendment provides the primary source of protection for prisoners, we will, however, refer to the standard as an Eighth Amendment standard.

Berry, 900 F.2d at 1494 n. 6 (10th Cir. 1990) (citations omitted). Mr. Ramirez's claims are thus properly addressed under Eighth Amendment standards. See Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009) ("anything that would violate the Eighth Amendment would also violate the Fourteenth Amendment) (citation omitted); Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) ("Claims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment.").

The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. CONST. Amend. VIII. Certain conditions of confinement, if they inflict pain unnecessarily and wantonly, may constitute cruel and unusual punishment under the Eighth Amendment. Whitley v. Albers, 475 U.S. at 319. Where an Eighth Amendment claim is based upon conditions of confinement, an inmate must satisfy a two-prong test that (1) the deprivation suffered was "objectively sufficiently serious, '" and (2) the defendant had a "sufficiently culpable state of mind" or was "deliberately indifferent" to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)).

A prison condition is sufficiently serious under the objective component of the Eighth Amendment test if it denies the inmate "the minimal civilized measure of life's necessities." Anderson v. Colorado, 887 F.Supp.2d 1133, 1139 (D. Colo. 2012) (internal quotation marks and citation omitted). While the Tenth Circuit recognizes that prisoners are generally entitled to outdoor exercise, a denial of outdoor exercise is not an Eighth Amendment violation per se. See Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (holding that, where inmate was allowed to use outdoor exercise facility for one hour per week, "[a]though this amount of exposure to exercise and fresh air is still restrictive, we cannot say, without more, that it fails to satisfy the demands of the Eighth Amendment."); Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994) ("Although we have never expressly held that prisoners have a constitutional right to exercise, there can be no doubt that total denial of exercise for an extended period of time would constitute cruel and unusual punishment prohibited by the Eighth Amendment."), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996); Smith v. Sullivan, 553 F.2d 373, 379 (5th Cir. 1977) ("[C]onfinement for long periods of time without the opportunity for regular outdoor exercise does, as a matter of law constitute cruel and unusual punishment."). Although there is no bright line rule for when denial of outdoor exercise becomes cruel and unusual punishment, the Tenth Circuit has held than an inmate who was denied outdoor exercise for nine months stated a claim for an Eighth Amendment violation. See Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 805 (10th Cir. 1999). See also Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006) (finding that an extended deprivation of outdoor exercise (three years) was a sufficiently serious deprivation to state an Eighth Amendment claim);

Mr. Ramirez does not allege total denial of out-of-cell exercise. He alleges that he was incarcerated in the Weld County Jail's administrative segregation unit from October 28, 2013 to December 26, 2013, a period of 59 days (See Doc. #1 at 4, 6-7 of 13). During his time in administrative segregation, he was allowed to be outside his cell an hour and a half each day in a 12 foot by 12 foot room with a telephone, shower and 2 small windows. (See Doc. #1 at 6 of 13). It is apparent from his allegations that Mr. Ramirez regularly participated in some exercise during the 59 days he was in administrative segregation. As to the objective component of an Eighth Amendment claim, the conditions which Mr. Ramirez alleges do not state a sufficiently serious deprivation to give rise to an Eighth Amendment violation. See Rosales v. Ortiz, No. 06-cv-2438-EWN-CBS, 2008 WL 877173, at **3, 11 (D.Colo. Mar. 27, 2008) (adopting Magistrate Judge's recommendation that a claim related to fifty minutes of indoor exercise per week and forty-five minutes of outdoor exercise every two weeks did not satisfy the objective sufficient deprivation requirement); Pastorius v. Romer, No. 96-1126, 1996 WL 528359, at * 1 (10th Cir. Sept. 17, 1996) (upholding dismissal as frivolous of inmate's claim that he only received one hour of exercise per day, inadequate fresh air, and no direct exposure to sunlight). Compare Parker v. Zavaras, No. 08-cv-00737-MSK-KLM, 2011 WL 1211487 (D.Colo. March 31, 2011) (concluding that denial of outdoor exercise to an inmate for a period of two years and five months stated a claim for relief under the Eighth Amendment).

The subjective component of the Eighth Amendment test requires that Defendants had the culpable state of mind known as "deliberate indifference." Farmer, 511 U.S. at 834. Deliberate indifference requires a higher degree of fault than negligence or even gross negligence. Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1495-96 (10th Cir. 1990) (citation omitted). An official acts with deliberate indifference if his or her conduct "disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights." Berry, 900 F.2d at 1496. "[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847. See also Barrie v. Grand County, Utah, 119 F.3d 862, 869 (10th Cir. 1997).

Mr. Ramirez has failed to allege deliberate indifference by the Defendants. There are no allegations that Defendants "knew of a substantial risk of harm to plaintiff's well being resulting from the lengthy denial of outdoor exercise and... disregarded that harm." Perkins, 165 F.3d at 810. See also Farmer, 511 U.S. at 837 ("the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference"); C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000) (in order to state a claim under § 1983 for failure to supervise, a complaint must allege that the supervisor had "contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents") (internal quotation marks and omitted). An allegation regarding Defendants' subjective knowledge is particularly important here given that Mr. Ramirez received "an hour and a half" of out-of-cell exercise "per day." ( See Doc. #1 at 6 of 13). As to the subjective component of an Eighth Amendment claim, Mr. Ramirez fails to allege deliberate indifference, as required to state a violation.

In addition to the objective and subjective elements, a plaintiff must demonstrate serious or significant injury resulting from the challenged cruel and unusual prison conditions. See Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993) ("a prisoner must suffer serious or significant physical or mental injury in order to be subjected to cruel and unusual punishment within the meaning of the Eighth Amendment") (internal quotation marks and citation omitted). "A de minimis injury is not sufficient to state an Eighth Amendment claim based upon deprivation of exercise." Hardy v. Bennett, No. 5:06-CT-3107-FL, 2008 WL 5640099, at *3 (ED. N.C. Feb.1, 2008) (citations omitted). Mr. Ramirez alleges no facts in support of his conclusory allegation that he "has suffered from mental and physical health problems due to the defendants['] actions." ( See Doc. #1 at 5 of 13). See Strickler, 989 F.2d at 1380-1381 ("At a minimum, an inmate must specifically describe not only the injury but also its relation to the allegedly unconstitutional condition."). While he alleges that he lost 8 pounds during his placement in administrative segregation, he does not allege his previous or current weight. As Mr. Ramirez fails to allege that he suffered a serious injury resulting from the challenged conditions, he fails to state an Eighth Amendment claim. See, e.g., Garnica v. Washington Dept. of Corrections, 965 F.Supp.2d 1250, 1262 (W.D. Wash. 2013) ("An eight pound weight loss in one month is not considered significant and should not cause adverse health consequences."); McFadden v. Butler, No. 3:10-3104-JMC-JRM, 2012 WL 847754, at * 4 (D.S.C. Feb. 6, 2012) (weight loss of 6 pounds in two months failed to establish any serious or significant physical or emotional injury resulting from the alleged conditions); Evans v. Albany County Correctional Facility, No. 9:05-CV-1400 GTS/DEP, 2009 WL 1401645, at *10 (even assuming that plaintiff lost 30 pounds and experienced dizziness and headaches over a four-month period the court concludes that there is no evidence in the record from which a reasonable fact finder could conclude that plaintiff's " weight loss concerns represented a condition of urgency or resulted in degeneration or extreme pain sufficient to implicate an Eighth Amendment violation'") (citation omitted).

3. Due Process

Mr. Ramirez also alleges denial of "programming to change... negative behavior" and "any significant means to work his way off his ad-seg status." ( See Doc. #1 at 5 of 13). The necessary predicate to a due process claim is a deprivation of a protected interest. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) ("The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property' or liberty.'") (citing U.S. Const., amend. XIV ("nor shall any State deprive any person of life, liberty, or property, without due process of law")). Prisoners do not have a constitutionally recognized liberty interest in their security classification or placement. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) ("administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration"); Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006) ("classification of a plaintiff into segregation does not involve deprivation of a liberty interest independently protected by the Due Process Clause") (quotation and alterations omitted); Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (Tenth Circuit has explicitly held that "the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.") (internal quotation marks and citation omitted).

However, in Sandin v. Conner, the Supreme Court held that administrative segregation may implicate a liberty interest protected by the Due Process Clause if it "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, " 515 U.S. at 484, or if it "will inevitably affect the duration of his sentence." Id. at 487. See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006) ("the Supreme Court held that a deprivation occasioned by prison conditions or a prison regulation does not reach protected liberty interest status and require procedural due process protection unless it imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'") (quoting Sandin, 515 U.S. at 484). "[T]he touchstone of the inquiry... is not the language of regulations regarding those conditions but the nature of those conditions themselves in relation to the ordinary incidents of prison life." Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (internal quotation marks and citation omitted). Whether confinement "conditions impose such an atypical and significant hardship that a liberty interest exists is a legal determination...." Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997) (citing Sandin, 515 U.S. at 485-87).

"The Tenth Circuit has listed a number of factors that can be considered in determining whether a liberty interest exists in the context of prison segregation, i.e., whether (1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement... and (4) the placement is indeterminate.'" Anderson v. Colorado, 887 F.Supp.2d 1133, 1149 (D. Colo. 2012) (quoting Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007)). "[A]ny assessment must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts." DiMarco, 473 F.3d at 1342 (citation omitted).

Here, the relevant factors weigh against an enforceable liberty interest in Mr. Ramirez's claim regarding his placement in administrative segregation between October 28 and December 26, 2013. Mr. Ramirez has not alleged any effect of his placement in administrative segregation on the duration of his sentence. Nor is there any allegation of atypical or extreme conditions or how the conditions of his confinement differ in any way from those of other prisoners. See Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996) ("In Sandin, the Court held that the plaintiff's discipline in segregated confinement was not the sort of atypical, significant deprivation that would give rise to a liberty interest entitled to due process protection.") (citation omitted); DiMarco, 473 F.3d at 1343 (inmate had access to the basic essentials of life, although her access to certain amenities was more limited than the general population); Blum v. Federal Bureau of Prisons, No. 98-1055, 189 F.3d 477 at * 3 (10th Cir. (Colo.) Aug. 23, 1999) (disciplinary segregation that left inmate "without store privileges, radio, phone calls, etc. that other inmates just being held in segregation had the privileges of" was "not different in such degree and duration as compared with the ordinary incidents of prison life to be a protected liberty interest under the Due Process Clause") (internal quotation marks citations omitted).

Mr. Ramirez does not allege that his placement in administrative segregation is indeterminate; rather, he alleges that it was determinate, from October 28 to December 26, 2013. ( See Doc. #1 at 6 of 13). Mr. Ramirez alleges "ad-seg reviews monthly." ( See Doc. #1 at 10 of 13). See Jones v. Mabry, 723 F.2d 590, 594 (8th Cir. 1983) (due process requires procedure for periodic review of administrative segregation status); Hunt v. Sapien, 480 F.Supp.2d 1271, 1277 (D. Kan. 2007) (placement was not indefinite where reviewed weekly for the first 60 days, and subsequently reviewed monthly, after 180 days, and annually). Mr. Ramirez's allegations based on his administrative segregation placement for 59 days in 2013 do not state a claim to which relief can be granted for violation of his right to due process under the Fourteenth Amendment.

B. Official Capacity Liability

To the extent that Mr. Ramirez is suing Defendants in their official capacities, "a judgment against a public servant in his official capacity imposes liability on the entity he represents...." Brandon v. Holt, 469 U.S. 464, 471-73 (1985) (internal quotation marks and citation omitted). See also Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998) ("[a]n action against a person in his official capacity is, in reality, an action against the government entity for whom the person works."); Smith v. Plati, 56 F.Supp.2d 1195, 1202 (D. Colo.1999) ("a suit against a government employee in his official capacity [is] tantamount to a suit against the government entity itself"). Mr. Ramirez's § 1983 claims against Defendants in their official capacities are properly brought against their employer, the Weld County Sheriff's Office. ( See Doc. #1 at 2-3 of 13).

Municipalities and other local government entities such as the Weld County Sheriff's Office are "persons" under § 1983, and can therefore be sued for their constitutional torts. Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978). However, "[a] municipality may not be held liable under § 1983 solely because its employees inflicted injury on the plaintiff." Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quotations omitted). Only "its own unconstitutional or illegal policies" can supply the basis for liability. Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). A municipality or other governmental entity "can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citation omitted). See also Monell, 436 U.S. at 690-91, 694 ("Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.").

In order to hold Defendants liable in their official capacities under § 1983, Mr. Ramirez must allege (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged." Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir. 1996). "[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force' behind the injury alleged."). Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 404 (1997).

[M]unicipal liability under § 1983 attaches where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. Municipal liability may be based on a formal regulation or policy statement, or it may be based on an informal custom so long as this custom amounts to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage' with the force of law. Municipal liability may be also be based on the decisions of employees with final policymaking authority or the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval. Finally, municipal liability may be based on injuries caused by a failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.

Brammer-Hoelter v. Twin Peaks Charter Academy, 602 F.3d 1175, 1188-89 (10th Cir. 2010) (internal quotation marks and citations omitted).

The policy violation must also demonstrate deliberate indifference to the rights of the plaintiff. City of Canton, 489 U.S. at 388. See also Bryan County, 520 U.S. at 407 ("a plaintiff who seeks to establish municipal liability... must demonstrate that the municipal action was taken with deliberate indifference as to its known or obvious consequences.") (internal quotation marks and citation omitted); Carr v. Castle, 337 F.3d 1221, 1229 (10th Cir. 2003) ("The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm."); Brammer-Hoelter, 602 F.3d at 1188-89 ("municipal liability may be based on injuries caused by a failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused") (internal quotation marks and citations omitted).

First, as the court has determined that Mr. Ramirez fails to allege the requisite predicate of an underlying constitutional violation, he fails to state a claim for relief against Defendants in their official capacities. See Estate of Larsen ex. Rel Sturdivan v. Murr, 511 F.3d 1255, 1264 (10th Cir.2008) ("without the predicate constitutional harm inflicted by an officer, no municipal liability exists") (citation omitted); Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir.2004) (same) (citation omitted). See also Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317-18 (10th Cir.2002) ("We will not hold a municipality liable [for constitutional violations] when there was no underlying constitutional violation by any of its officers.") (internal quotation marks and citation omitted); Ricciuti v. New York City Transit Authority, 124 F.3d 123, 132 (2d Cir.1997) ("a claim of inadequate training and supervision under § 1983 cannot be made out against a supervisory body without a finding of a constitutional violation by the persons supervised") (citation omitted); Wilson v. Meeks, 98 F.3d 1247, 1255 (10th Cir.1996) ("a municipality may not be held liable where there was no underlying constitutional violation by any of its officers.").

Second, Mr. Ramirez does not identify any policy, practice, or custom of the Weld County Sheriff's Office or allege any facts to suggest a direct causal link between any action of the local government entity and a constitutional violation. See Bryan County, 520 U.S. at 404; Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir.1997). Nor has Mr. Ramirez alleged deliberate indifference. See, e.g., Riddle v. Mondragon, 83 F.3d 1197, 1205 (10th Cir. 1996) (general, conclusory allegations, without supporting factual averments, are insufficient to state a claim for deliberate indifference in violation of the Eighth Amendment); Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (municipal liability attaches only when the entity's policy, practice, or custom "amounted to a deliberate indifference to the constitutional right and was the moving force behind the constitutional violation") (internal quotation marks omitted); Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (A municipality may be liable for the failure to supervise or discipline its employees "only where the need to act is so obvious, and the inadequacy of the current practices so likely to result in a deprivation of federal rights, that the municipality or official can be found deliberately indifferent to the need.") (citing City of Canton, 489 U.S. at 390). In sum, Mr. Ramirez's allegations are insufficient to state a claim to which relief can be granted against Defendants in their official capacities under § 1983.

C. Declaratory and Injunctive Relief

Mr. Ramirez alleges that he "was released from ad-seg status on Dec. 26th, 2013." ( See Doc. #1 at 6 of 13). At the Status Conference held on April 22, 2014, he represented that he has not been returned to administrative segregation. As he is no longer in administrative segregation or subjected to the conditions alleged in his Complaint, Mr. Ramirez does not have a viable claim for declaratory or injunctive relief pertaining his access to "fresh air, direct sunlight, regular outdoor exercise, and denial of a pull-up bar" or "jungle gyms." ( See Doc. #1 at 12-13 of 13). See Weaver v. Wilcox, 650 F.2d 22, 27 n. 13 (3d Cir. 1981) (stating that prisoner's transfer from the prison moots claim for injunctive and declaratory relief with respect to prison conditions); Smith v. Hundley, 190 F.3d 852, 855 (8th Cir.1999) (inmate's claims for declaratory and injunctive relief regarding prison conditions were moot when he was transferred to another facility and was no longer subject to those conditions) (citations omitted); Ricco v. Conner, No. 04-3261, 146 F.App'x 249, 253 (10th Cir. Aug. 8, 2005) (prisoner no longer in administrative segregation does not have viable claims pertaining to the administrative segregation sanction) (citation omitted). While Mr. Ramirez alleges that he "was told on his last review that he was subject to being ad-segged again at any time, " he alleges no facts to support a reasonable expectation that he will be subjected to these conditions again. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (recognizing exception to the mootness doctrine where there is a "reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party") (internal quotation marks and citation omitted). The allegations do not support a finding that this is the type of claim to which an exception to the mootness doctrine applies.

D. Qualified Immunity

To the extent that Mr. Ramirez is suing Defendants in their individual capacities, Defendants raise the defense of qualified immunity. Whether a defendant is entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007), cert. denied, 128 S.Ct. 1229 (2008).

Resolution of a dispositive motion based on qualified immunity involves a two-pronged inquiry. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, ... the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.

Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks and citations omitted). "A reviewing court may exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. "Qualified immunity is applicable unless" the plaintiff can satisfy both prongs of the inquiry. Id.

As the court concludes in this Recommendation that Mr. Ramirez has failed to state any claim for violation of a constitutional right, Defendants in their individual capacities are entitled to qualified immunity. See Wilder, 490 F.3d at 815 (instructing district court on remand to enter judgment in favor of defendant on basis of qualified immunity, where plaintiff failed to carry his burden to show violation of a constitutional right).

Accordingly, IT IS RECOMMENDED that "Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 30)" (filed May 1, 2014) (Doc. #38) be GRANTED and that this civil action be dismissed pursuant to Rule 12(b)(6) for failure to state a claim to which relief can be granted.

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

Before BRORBY, EBEL and LUCERO, Circuit Judges.

ORDER AND JUDGMENT*

* After examining appellant's brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2) and 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

EBEL.

*1 Petitioner-Appellant Chester Blum brought a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Blum raised five claims to establish that his sentence was enhanced without due process of law by prison officials in two related disciplinary hearings. The district court sua sponte denied Blum's petition for relief prior to service of process on respondent, the Federal Bureau of Prisons ("BOP") and denied Blum's motion to proceed in forma pauperis on appeal. We deny Blum's application for in forma pauperis status, and dismiss.

We construe the dismissal of Blum's § 2241 petition as a dismissal for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i) because (1) he was proceeding in forma pauperis; (2) dismissal occurred prior to service of process; and (3) the district court found most of Blum's claims "without merit." See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993) ("The district court dismissed [plaintiffs § 2241] petition prior to service of process on the defendants; thus, we find that it dismissed the petition as frivolous under 28 U.S.C. § 1915(d), " the precursor to § 1915(e).) We review a dismissal under § 1915(e)(2)(B) (i) for abuse of discretion. See McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir.1997).

On February 12, 1998, Blum, a prisoner at the United States Penitentiary at Leavenworth, Kansas, was found guilty at a prison disciplinary hearing of escape from a secure institution and possession, manufacture, or introduction of a hazardous tool. Blum appealed his disciplinary conviction, and on March 31, 1998, the BOP regional director ordered a de novo rehearing of the charges. On May 5, 1998, Blum was again found guilty of the disciplinary charges against him, and was punished with disciplinary segregation for ninety days, loss of fifty-four days of good time credit, and a disciplinary transfer to the United States Penitentiary in Florence, Colorado.

Blum asserts a due process violation at his disciplinary hearing on February 12, 1998 because his conviction was not supported by evidence in the record. This argument fails because Blum had a de novo rehearing on May 5, 1998 regarding the disciplinary charges against him. Blum was convicted at that rehearing and his subsequent segregation, loss of good-time credit, and transfer were sanctions imposed as a result of the second hearing. Thus, even if there were due process violations at the February 12, 1998 hearing, we would have no basis for overturning Blum's conviction at his May 5, 1998 hearing.1

1 Blum points us to a provision of BOP Directive 5270.07 which states:
Where a remand is directed, the appropriate Unit Discipline Committee or DHO [Disciplinary Hearing Officer] is bound by the original sanction(s), except where the remand is made specifically because of the sanction....
This language has no bearing on Blum's appeal because there was no remand directed regarding Blum's disciplinary conviction. Rather, his disciplinary conviction on February 12, 1998 was reheard anew on May 5.

*2 Blum's second claim alleges a violation of due process under Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), because his May 5 rehearing was not held within a reasonable time after it was ordered on March 31, and a violation of due process under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), because between March 31 and May 5, prison officials continued to house him in harsh, disciplinary segregation.2

2 Blum also refers to this type of segregation as "punitive" confinement or detention.

In Hewitt, the Court held that while a prisoner has no right under the Due Process Clause to remain within the general population, id. at 468, the state of Pennsylvania had created a protected liberty interest through its prison regulations to engage in an "informal, nonadversary review of the information supporting [the prisoner's] administrative confinement... within a reasonable time after confining him to administrative segregation, " id. at 472. However, the Court concluded that the prisoner received all the process due, in part because his hearing took place five days after transfer to administrative segregation. Id. at 477. Blum compares his case to Hewitt and asserts a due process violation occurred because prison officials violated regulations in holding his rehearing nearly five weeks after it was ordered.3

1 We reject Blum's conclusory assertion that we should somehow infer that the result in his rehearing was prejudiced by the fact it was not held until May 5th or by the fact that he had allegedly been "predesignated" to the federal prison in Florence, Colorado. (Aplt.Br. at 11.)

The error in this argument, besides the fact that the Pennsylvania regulations at issue in Hewitt have no relevance to Blum's federal incarceration in Kansas, is that the Supreme Court itself no longer follows the Hewitt methodology to determine whether regulations create liberty interests protected by the Due Process Clause. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Court stated: States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e.g., Vitek [v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) ] (transfer to mental hospital), and Washington [v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) ] (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

*3 Id. at 483-84 (other internal citation omitted). In Sandin, "the Court held that the plaintiffs discipline in segregated confinement was not the sort of atypical, significant deprivation that would give rise to a liberty interest entitled to due process protection." Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir.1996). "To reach this conclusion, the Court carefully examined the specific conditions of the prisoner's confinement. The Court determined that the prisoner's conditions essentially mirrored those conditions imposed upon inmates in administrative segregation and protective custody, ' so the prisoner's confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.'" Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 808-09 (10th Cir.1999) (quoting Sandin ).

In Perkins, this court reversed a district court dismissal of a prisoner's due process claim under Sandin where the prisoner alleged that he was wrongfully confined to an eight-foot by fourteen-foot concrete cell for twenty-three and one-half hours a day; was permitted to leave his cell for thirty minutes a day to take a shower, but, when he left his cell, was required to wear a face mask covering his entire head; and was not permitted to exercise outside his cell for over a year. Id. at 809. Unlike the prisoner in Perkins, here, Blum has alleged no facts to show that his confinement presented the type of atypical, significant deprivation that would implicate a liberty interest. Blum alleges that his disciplinary segregation left him without "store privileges, radio, phone calls, etc. that other inmates just being held in segregation had the privileges of, " and that he wrongfully endured mental stress for being punished for an offense "that was fabricated against" him. (Aplt.Br. at 10.) Though mental stress and the loss of benefits complained of may be difficult, we conclude that such conditions are not different in such degree and duration as compared with "the ordinary incidents of prison life" to be a protected liberty interest under the Due Process Clause. See Sandin, 515 U.S. at 484; see also Hewitt, 459 U.S. at 467 ("[L]awfully incarcerated persons retain only a narrow range of protected liberty interests... [O]ur decisions have consistently refused to recognize more than the most basic liberty interests in prisoners."); Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994) ("Changing an inmate's prison classification ordinarily does not deprive him of liberty, because he is not entitled to a particular degree of liberty in prison.").

*4 Blum's third claim alleges interference with and denial of the constitutional right of access to the courts and a First Amendment right to petition the government because the charges levied against him that warranted a disciplinary hearing were supposedly "fabricated" by the investigating officer in retaliation for Blum's prior filing of grievances in regards to his placement in the prison's special housing unit. (Aplt.Br. at 12.). We reject this argument, as the district court below did, because even if an officer were to have filed disciplinary charges against a prisoner for retaliatory purposes, that reason by itself does not provide a basis for this court on habeas review to expunge Blum's underlying disciplinary conviction.4

4 To the extent that Blum's characterization of the charges against him as "fabricated" is a challenge to the sufficiency of the evidence, after reviewing the record, we find that there was sufficient evidence at the May 5 rehearing to support a conviction. Most compelling was the information provided by two confidential sources that detailed the contraband items seized despite no opportunity to observe the items once they were detected by the prison staff. (App.Att. 15.)

Blum also alleges his due process rights were violated because he was denied a purported mandatory right under 28 C.F.R. § 40.7 to appeal to the BOP general counsel the regional director's decision to rehear, instead of dismiss outright, the disciplinary charge. 28 C.F.R. § 40.7 is contained within the Minimum Standards for Inmate Grievance Procedures, regulations authorized by 42 U.S.C. § 1997e(b), which is part of the Prison Litigation Reform Act of 1995. In relevant parts, 28 C.F.R. § 40.7 provides:

(d) Reasoned, written responses. Each grievance [filed by an inmate] shall be answered in writing at each level of decision and review. The response shall state the reasons for the decision reached and shall include a statement that the inmate is entitled to further review, if such is available, and shall contain simple directions for obtaining such review.
(e) Fixed time limits. Responses shall be made within fixed time limits at each level of decision. Time limits may vary between institutions, but expeditious processing of grievances at each level of decision is essential to prevent grievance from becoming moot. Unless the grievant has been notified of an extension of time for a response, expiration of a time limit at any stage of the process shall entitle the grievant to move to the next stage of the process. In all instances grievances must be processed from initiation to final disposition within 180 days, inclusive of any extensions.
(f) Review. The grievant shall be entitled to review by a person or other entity, not under the institution's supervision or control, of the disposition of all grievances, including alleged reprisals by an employee against an inmate. A request for review shall be allowed automatically without interference by administrators or employees of the institution and such review shall be conducted without influence or interference by administrators or employees of the institution.

*5 The district court rejected Blum's due process argument premised on these regulations "because Mr. Blum does not allege that he was denied any of the process to which he is entitled pursuant to Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)...."5 However, Wolff does not necessarily dispose of Blum's claim, because Wolff only addressed (as is relevant here) whether certain statutes and regulations, which were complied with, violated the Due Process Clause. Wolff did not address whether a due process claim arises when an agency violates its own regulations. See Mitchell v. Maynard, 80 F.3d 1433, 1444-45 (10th Cir.1996) (analyzing under Wolff, prisoner's claim that disciplinary hearing violated due process because unreliable evidence was admitted; separately analyzing under Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), prisoner's claim that disciplinary hearing violated due process because defendants failed to follow their own established policy of banning staff members directly involved in the disciplinary case from being the disciplinary officer because "a fundamental requirement of due process is the opportunity to be heard"); see also Caldwell v. Miller, 790 F.2d 589, 609-10 (7th Cir.1986) ("An agency must conform its actions to the procedures that it has adopted. An inmate, too, has the right to expect prison officials to follow its policies and regulations.") (internal citations omitted).

5 To meet the standards of due process in a disciplinary proceeding under Wolff,
the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.
Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); see also Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir.1996). "If there is some evidence to support the disciplinary committee's decision... then the requirements of procedural due process have been met." Id. Nevertheless, we dismiss because even accepting Blum's allegations as true, there has been no violation of federal regulations. Under the regulations' plain language, a prisoner's claim is only entitled to review "by a person... not under the institution's supervision or control." 28 C.F.R. § 40.7(f). Blum's claim was reviewed by the BOP regional director, and Blum is only arguing on appeal that the BOP General Counsel should also have reviewed his claim. Since the BOP General Counsel and the Regional Director are equally independent from the local federal prison, Blum received one level of independent review, which is all that § 40.7(f) requires. Blum does not allege, nor does the record support, that the Regional Director was, and the General Counsel was not, under Blum's prison's "supervision or control." Accordingly, the defendants complied with federal regulations in its handling of Blum's grievance, and no due process violation thereby arises.

*6 Blum also alleges interference with and denial of the constitutional right of access to the courts because he, once again, allegedly was denied his mandatory right under 28 C.F.R. § 40.7 to appeal to the BOP general counsel the regional director's decision to rehear, instead of dismiss outright, the disciplinary charge. According to Blum, though he had appealed the regional director's rehearing order, a rehearing was held despite the absence of any resolution of his intervening appeal to the BOP general counsel. Blum contends that under federal regulations, once he made his appeal to the BOP general counsel, "no further action by prison officials were allowed." (Aplt.Br. at 13.) The district court rejected this claim on jurisdictional grounds, finding in part that Blum had not alleged any "actual injury" in his ability pursue a habeas petition. We agree.

An inmate alleging a violation of constitutional access to the courts "must show actual injury." Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.1996) (per curiam) (interpreting Lewis). For example, an inmate cannot bring a constitutional access to the court claim simply because that person's prison law library is subpar. See Lewis, 518 U.S. at 351. Rather, such an inmate "must go one step further and demonstrate that the alleged shortcomings in the library... hindered his efforts to pursue a legal claim." Id. ; see also id. (stating that healthy inmate in a prison cannot claim constitutional violation because of inadequacy of the prison infirmary). Here, Blum has failed to show how an error, if any, in holding the disciplinary rehearing before resolution of his appeal to the BOP general counsel "hindered his efforts to pursue a legal claim" in the courts. Therefore, Blum has not suffered an actual injury from the alleged violation of internal grievance procedures, and his constitutional access to the courts claim was properly dismissed below. See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.1990); ("[A]n isolated incident, without any evidence of improper motive or resulting interference with [the prisoner's] right to... access to the courts, does not give rise to a constitutional violation.").

Blum's fourth claim specifically alleges a denial of procedural due process under Wolff v. McDonnell . In particular, Blum contends that he was denied advance written notice of the May 5 rehearing, even though he received written notice of the original February 12 hearing, and even though he received oral notice of the rehearing. Blum argues that he was entitled to a written notice for the rehearing "due to changes in the charge or evidence." (Aplt.Br. at 22.) However, the record belies any suggestion that the charges against Blum changed at the rehearing, and, as the district court explained, under Wolff, Blum is entitled to advance written notice of the disciplinary charges against him, not to written notice of the evidence that will be used at the disciplinary hearing.

*7> Blum's fifth and final claim also alleges a denial of due process because the disciplinary hearing officer did not assess whether admitted evidence from two confidential informants was reliable. For the same reasons wellarticulated below, we disagree. The reliability of the confidential informants was established by "some evidence" in the record, as the written statement of reasons indicates that "the confidential informants had corroborating statements which added to their credibility."

The appeal is DISMISSED.

The mandate shall issue forthwith.

Parallel Citations

1999 WL 638232 (C.A.10 (Colo.)), 1999 CJ C.A.R. 4925

Attorneys and Law Firms

Michael Sean Edmond, Colorado Springs, CO, pro se.

Darin L. MacKender, Fisher & Phillips, LLP, Denver, CO, for Defendants.

ORDER

R. Brooke Jackson, United States District Judge

*1 This case comes before the Court on Defendant Barton's Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 22] and on Defendant Broadmoor Hotel, Inc.'s Motion for Partial Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) [ECF No. 23]. The Court asserts jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. For the following reasons, the motions are granted.

BACKGROUND

This case arises out of the plaintiffs failure to be hired as a Temporary Stock Clerk for the Broadmoor Hotel in early December 2010. On December 6, 2010 Mr. Edmond interviewed with Defendant Dana Barton, then Director of Recruitment for the Broadmoor Hotel, over the phone. During the call, Mr. Edmond voluntarily stated that he had a felony conviction from 1999 for sale of a Schedule II controlled substance. Ms. Barton then informed Mr. Edmond that the Broadmoor Hotel could not hire him because of his felony conviction. She sent Mr. Edmond a letter reiterating this position on December 9, 2010. On or around December 13, 2010, Mr. Edmond filed a charge of discrimination with the EEOC alleging race discrimination in violation of Title VII. The EEOC issued a Right to Sue letter on August 30, 2013. Mr. Edmond received this letter on September 2, 2013 and timely filed this lawsuit on November 29, 2013.

Mr. Edmond asserts three claims for relief against the defendants: (1) race discrimination in violation of Title VII; (2) violation of 42 U.S.C. § 1981; and (3) intentional interference with prospective business relations. The first two claims for relief are asserted against both defendants whereas the third is only asserted against Ms. Barton.

Ms. Barton filed an answer and a motion to dismiss simultaneously on June 24, 2014. The Broadmoor Hotel filed its answer on February 11, 2014 and moved for partial motion for judgment on the pleadings on June 24, 2014. Mr. Edmond failed to respond to either dispositive motion. As such, both motions are now ripe for review.

ANALYSIS

To survive a 12(b)(6) motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court must accept the wellpleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v. lqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

While a motion to dismiss must be filed prior to or simultaneously with an answer, a motion made after filing the answer should be treated as a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002). The Court applies the same standard when evaluating 12(b)(6) and 12(c) motions. Id.

A. Title VII.

*2 Ms. Barton has moved to dismiss Mr. Edmond's Title VII claim for failure to state a claim upon which relief can be granted. In particular, Ms. Barton contends that she is not an employer under Title VII, and therefore cannot be sued under the Act. Title VII prohibits discrimination by an "employer." See 42 U.S.C. § 2000e-2(a). Under the statue, the term "employer" means "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person...." 42 U.S.C. § 2000e(b). The Tenth Circuit has held that an individual supervisor cannot be held personally liable under Title VII. SeeHaynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996) ("[P]ersonal capacity suits against individual supervisors are inappropriate under Title VII."). As such, Ms. Barton cannot be held personally liable for the Broadmoor Hotel's alleged discrimination under Title VII and the claim against her must be dismissed. Because the Broadmoor Hotel did not seek a motion for judgment on the pleadings on this claim, the Title VII claim against it remains.

B. 42 U.S.C. § 1981.

Mr. Edmond alleges that the defendants violated his right under 42 U.S.C. § 1981 to form contracts in the same manner as white citizens when they refused to hire him. According to the Complaint, the defendants refused to hire Mr. Edmond in early December 2010. Because the alleged violation took place nearly three years before Mr. Edmond filed this lawsuit, both defendants have moved to dismiss the claim as time barred. 42 U.S.C. § 1981 does not contain a statute of limitations. The Tenth Circuit has held that "claims under § 1981 relying upon discrimination in contract formation ... [are] governed by residual state statutes of limitations, here two years." Cross v. The Home Depot, 390 F.3d 1283, 1288 (10th Cir. 2004) (applying Colorado state law) (emphasis in original). Because Mr. Edmond's claim relies upon the assertion that he was discriminated against in contract formation, his claim is subject to a two-year statute of limitations. SeeC.R.S. § 13-80-102; Cross, 390 F.3d at 1288. The limitations period begins to run when the plaintiff first knew or should have known of his injury; here, at the time the defendants refused to enter into a contract with Mr. Edmond. CfAlmond v. Unit' ied Sch. Dist. No. 501, 665 F.3d 1174, 1176 (10th Cir. 2011). The defendants refused to hire Mr. Edmond in early December 2010, nearly three years before he filed this lawsuit. As such, this claim is time barred and must be dismissed.

C. Intentional Interference with Prospective Business Relations.

Mr. Edmond alleges that Ms. Barton interfered with his prospective employment relationship with Hotel Broadmoor by intentionally misrepresenting the hotel's hiring policy. Ms. Barton argues that this claim is time barred under the applicable statute of limitations. Under Colorado law, tort actions, including ones for interference with relationships, are subject to a two-year statute of limitations. C.R.S. § 13-80-102(1)(a). Once again, the cause of action accrues when the plaintiff knew or should have known of the allegedly tortious conduct. According to Mr. Edmond, the hotel's employment application "specifically states that a criminal conviction or even a criminal charge pending does not automatically disqualify an applicant from employment, " and yet Ms. Barton allegedly stated that the hotel was unable to employ individuals with criminal charges." Complaint [ECF No. 1] at p. 5, ¶¶ 3, 5 (emphasis omitted). Though the Complaint does not say when he became aware of the hotel's official policy, Mr. Edmond's charge of discrimination dated December 24, 20101 states that "[t]he job application stated that my conviction would not prevent me from being hired." [ECF No. 22-1].2 The Court therefore finds that Mr. Edmond was aware of the alleged policy violation, and in turn the tortious conduct, by at least December 24, 2010. This lawsuit was not filed until nearly three years later, rendering it time barred by the applicable statute of limitations.

1 It appears that Mr. Edmond filed two charges of discrimination, one on December 13, 2010 with the EEOC and another on December 24, 2010 with the Colorado Civil Rights Division. Compare [ECF No. 1 at 5] with [ECF No. 22-1].
2 "[I]n general, a motion to dismiss should be converted to a summary judgment motion if a party submits, and the district court considers, materials outside the pleadings." Prager v. LaFaver, 180 F.3d 1185, 1188 (10th Cir. 1999). However, "the district court may consider documents referred to in the complaint if the documents are central to the plaintiffs claim and the parties do not dispute the documents' authenticity." Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).

COSTS

*3 The prevailing party is typically awarded its costs pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. However, the Court finds duplicative defense counsel's filing of two separate answers [ECF Nos. 13 & 21] as well as, in effect, two motions to dismiss [ECF Nos. 22 & 23]. Therefore, while costs will still be awarded, the clerk's office shall disregard any amount that would not have been incurred except for these duplicative filings.

ORDER

For the foregoing reasons, Defendant Barton's Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 22] and Defendant Broadmoor Hotel, Inc.'s Motion for Partial Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) [ECF No. 23] are GRANTED. All claims against Ms. Barton have been dismissed. The only claim remaining in this action is Mr. Edmond's Title VII claim against the Broadmoor Hotel.

The parties are hereby ORDERED to contact chambers to set a scheduling conference, which is to take place within the next fourteen (14) days.

As the prevailing party Defendants are awarded their costs pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1 in an amount to be determined by the clerk's office consistent with this Order.

Attorneys and Law Firms

Orrel Evans, Coxsackie, NY, pro se.

Thuillez, Ford, Gold, Butler & Young LLP, Kelly M. Monroe, Esq., of Counsel, Albany, NY, for Defendant Gloria Cooper.

Roche, Corrigan McCoy & Bush, Robert P. Roche, Esq., of Counsel, Albany, NY, for Remaining Defendants.

DECISION and ORDER

Hon. GLENN T. SUDDABY, District Judge.

*1 Currently before the Court in this pro se prisoner civil rights action are (1) Defendant Cooper's motion for summary judgment (Dkt. No. 53), (2) the remaining Defendants' motion to dismiss for failure to state a claim and/or for summary judgment (Dkt. No. 54), (3) United States Magistrate Judge David E. Peebles's Report-Recommendation recommending that Defendant Cooper's motion be granted, and that the remaining Defendants' motion be granted in part and denied in part (Dkt. No. 66), and (4) Defendants' timely Objections to the Report-Recommendation (Dkt. No. 67). For the reasons set forth below, the Report-Recommendation is adopted in part, Defendants' motions for summary judgment are granted in their entirety, and Plaintiff's Second Amended Complaint is dismissed in its entirety.

I. BACKGROUND

A. Relevant Procedural History

On November 9, 2005, Plaintiff filed this action against Albany County Correctional Facility ("ACCF") and five individuals employed by Albany County. On July 13, 2007, Plaintiff amended his Complaint for the second time. (Dkt. No. 27.)Generally, in his Second Amended Complaint, Plaintiff claims that Defendants violated his rights under the First, Eighth and Fourteenth Amendments by failing to provide him on a regular basis with a vegetarian diet which, he maintains, was necessitated by both an allergy to certain foods and his genuinely held religious beliefs. ( Id. ) More specifically, Plaintiff alleges that this failure (1) infringed upon his right to freely exercise his chosen religion, as guaranteed by the First Amendment to the United States Constitution, (2) exposed him to cruel and unusual punishment and/or deliberate indifference to a serious medical need, in violation of the Eighth Amendment, and (3) denied him equal protection under the law, as guaranteed under the Fourteenth Amendment. ( Id. )

On October 2, 2007, Defendants filed their Answer to Plaintiffs Second Amended Complaint. (Dkt. No. 31.)On May 15, 2008, Defendant Gloria Cooper filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 53.)The next day, the remaining Defendants filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and, in the alternative, a motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 54.)

On January 30, 2009, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendants' motions be granted in part and denied in part. (Dkt. No. 66.)Specifically, Magistrate Judge Peebles recommended that (1) all claims against Defendant Cooper be dismissed, (2) all claims against Defendant ACCF be dismissed, (3) Plaintiffs Fourteenth Amendment claim be dismissed, and (4) a trial be held on Plaintiffs remaining First and Eighth Amendment claims because of the existence of genuine issues of material fact. Familiarity with the grounds of the Report-Recommendation is assumed in this Decision and Order.

On February 12, 2009, Defendants (other than Defendant Cooper) filed their Objections to the Report-Recommendation. (Dkt. No. 67.)

B. Undisputed Material Facts

*2 Plaintiff was incarcerated at the ACCF on June 30, 2005. Upon intake, the staff at ACCF performed a medical screening of Plaintiff. During his screening, Plaintiff filled out a medical history and screening form.1 On the form (which he signed), Plaintiff indicated that he had no allergies, medical or otherwise, and further indicated that he did not require any special diet. On July 3, 2005, Plaintiff submitted a Health Services Request Form to the medical department.2 This form did not reference any special/vegetarian diet.

1 (Dkt. No. 54, Part 8, at 5.)
2 ( Id. at 12-13.)

On July 5, 2005, Plaintiff sent a letter to the Inmate Services Unit ("ISU"), in which he indicated-for the first time-that he was a vegetarian.3 Generally, there are at least four separate types of vegetarian diets offered at ACCF.4 In addition, there are at least three separate "vegetarian style" diets, which either include the use of fish, cheese or eggs.5

3 (Dkt. No. 54, Part 7, at 26.)
4 (Dkt. No 54, Part 2, at 3-4.)
5 ( Id. )

On July 7, 2005, Plaintiff submitted a second Health Services Request Form, which again made no reference to any special/vegetarian diet.6 However, on July 8, 2005, Plaintiff submitted a third Health Services Request Form that did indicate that he was a vegetarian, in addition to being allergic to meat and eggs.7 On that same day, the medical department wrote an order for Plaintiff to receive a vegetarian diet.8

6 (Dkt. No. 54, Part 8, at 14.)
7 ( Id. at 15.)
8 ( Id. [noting that a slip was sent].)

On July 20, 2005, Plaintiff submitted a letter to Defendant Rockwell at ISU, in which he complained that it took "years" for him to get his food.9 On July 29, 2005, Plaintiff submitted a letter to ISU, indicating that he was not receiving the proper meals, even though the medical department had indicated that he was a vegetarian.10 On that same day, ISU provided the letter to the kitchen supervisor and to the medical department. ISU also sent a letter to Plaintiff, informing him that his letter had been sent to the "kitchen and medical supervisor, " and that his card on his "tier is marked for a rasafarian [sic] vegitarian [sic] diet."11

9 (Dkt. No. 54, Part 7, at 28.)
10 ( Id. at 30.)
11 ( Id. at 31.)The Court notes that Plaintiff has not alleged facts plausibly suggesting, or adduced admissible record evidence establishing, the particular dietary requirements of his Rastafarian religion.

On July 30, 2005, the medical department prepared a Special Diet Request Form for Plaintiff, which indicated that Plaintiff should receive a vegetarian diet, and should not receive any animal products.12 However, according to Plaintiff, on August 5, 2005, he "again did not receive a meal because [, ] according to an unknown correctional officer, there was nothing in the kitchen stating Plaintiff was to receive vegetarian meals."13 Plaintiff unsuccessfully "tried explaining his situation regarding him not receiving his and having his name removed from the vegetarian diet list to an unknown supervising officer making rounds."14

12 (Dkt. No. 54, Part 8, at 10.)
13 (Dkt. No. 27, 24 [Plf.'s Second Am. Compl.].)
14 ( Id. at ¶ 25.)

As a result, Plaintiff submitted a Health Services Request Form to the medical department on August 20, 2005.15 In this Health Services Request Form, Plaintiff indicated that the "wrong meal" was being sent to him. The form was reviewed by the medical department on August 22, 2005. Defendant Cooper noted on the form that, according to the department's records, Plaintiff had already been placed on a vegetarian diet since August 5, 2005.16 However, according to Plaintiff, even after submitting a grievance on August 20, 2005, regarding the receipt of the wrong meals, he "continued to have problems receiving, and quality of his meals."17

15 (Dkt. No. 54, Part 8, at 16.)
16 ( Id. )
17 (Dkt. No. 27, ¶ 27 [Plf.'s Second Am. Compl.].) The Court notes that, in Plaintiffs last letter to Defendant Rockwell dated September 19, 2005, Plaintiff explained that he had to wait "over 30 minutes or more" for a "court sandwich that was so old bread hard and falling apart."(Dkt. No. 54, Part 7, at 33.) In the same letter, Plaintiff explained that on another occasion, he "had to wait over 40 minutes [to receive his meal] then they sent over a dirty tray. I don't no [sic] who the hell they think they are dealing with that way."( Id. )

*3 In early September 2005, Plaintiff submitted a Health Services Request Form complaining of skin irritation on his face and arm.18 The form did not mention any allergy, or problems with his vegetarian/special diet. After receiving the form, the medical department saw Plaintiff and gave him ointment for an acne breakout.

18 (Dkt. No. 54, Part 8, at 17.)

On October 13, 2005, Plaintiff submitted another Health Services Request Form regarding a problem with urinating.19 The form made no mention of any allergy, or problems with his vegetarian/special diet. On October 14, 2005, Plaintiff was seen for this complaint.

19 ( Id. at 18.)

According to Plaintiff, "[o]n October 20, 2005, [he] received a supposed' vegetarian meal" that was actually "badly burnt eggs and pears."20

20 (Dkt. No. 27, 28 [Plf.'s Second Am. Compl.].)

In addition, attached as an exhibit to his unsworn opposition memorandum of law, Plaintiff has provided the Court with a calendar, in which he has circled 72 days between June 29, 2005, and October 20, 2005, on which he asserts he either (1) "miss[ed]" a meal, or (2) received his meal late.21 The Court notes that, apart from not being attached to an affidavit, the calendar fails to specify which days Plaintiff missed a meal, and which days he simply received his meal late. In addition, the calendar fails to specify whether he missed the meal because (1) he was not given a meal at all, or (2) he was not given the (presumably vegetarian) meal he requested. Finally, the calendar indicates that Plaintiff did not receive a timely meal at ACCF on June 29, 2005 (though incarcerated there at the time), which appears inaccurate because he was not incarcerated at ACCF until June 30, 2005.

21 (Dkt. No. 57, Part 2, at 7, 30.)

In any event, in their memorandum of law in support of their motion for summary judgment, Defendants concede that Plaintiff did not receive a vegetarian meal on a few occasions.22 Furthermore, in their reply papers, Defendants attempt to quantify the extent of this deprivation by indicating that Plaintiff did not receive the proper meal "a half dozen or so times."23

22 (Dkt. No. 54, Part 4, at 3.)
23 (Dkt. No. 59, at 2.) The Court notes that, in their Objections, Defendants offer (for the first time) evidence in support of this estimate, although the Court declines to consider this late-blossoming record evidence, pursuant to the legal standard described below in note 26 of this Decision and Order. ( See, e.g., Dkt. No. 67, Part 1, ¶ 8 [Roche Affid.]: Dkt. No. 67, Part 5, ¶¶ 8-9 [Clark Affid.]; Dkt. No. 67, Part 8 [Ex. C to Clark Affid.]; Dkt. No. 67, Part 9, ¶ 7, 10, 11, 12 [Weis Affid.].)

As a result of the foregoing treatment, Plaintiff alleges that he lost thirty (30) pounds between June 28, 2005, and October 2005.24 Plaintiff also alleges that he suffered from migraine headaches, and dizziness because of his hunger. 25

24 (Dkt. No. 27, 33 [Plf.'s Second Am. Compl.].) Plaintiff alleges that the departmental medical staff at Downstate Correctional Facility (where Plaintiff was transferred on October 25, 2005) has a record of his weight, which supports his weight loss claim. (Id.)
25 ( Id. at 14.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review on Objection from Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).26 When only general objections are made to a magistrate judge's reportrecommendation, the Court reviews the reportrecommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept.22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999). 27 Similarly, when a party makes no objection to a portion of a reportrecommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."28 U.S.C. § 636(b) (1) (C).

26 On de novo review, "[t]he judge may... receive further evidence...." 28 U.S.C. § 636(b)(1)(C). However, a district court will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance. See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994) ("In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.") [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Intl Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir.1990) (district court did not abuse its discretion in denying plaintiffs request to present additional testimony where plaintiff "offered no justification for not offering the testimony at the hearing before the magistrate").
27 See also Vargas v. Keane, 93-CV-7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec.12, 1994) (Mukasey, J.) ("[Petitioner's] general objection [that a] Report... [did not] redress the constitutional violations [experienced by petitioner]... is a general plea that the Report not be adopted... [and] cannot be treated as an objection within the meaning of 28 U.S.C. § 636."), aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169 (1996).

B. Standard Governing Motion to Dismiss for Failure to State a Claim

*4 After the pleadings are closed, a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is properly brought as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir.1983) [citations omitted]; see alsoFed.R.Civ.P. 12(b), 12(c). However, the motion for judgment on the pleadings is then decided according to the same standard as is a motion to dismiss for failure to state a claim. Id.

It has long been understood that a defendant may base a motion to dismiss for failure to state a claim on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F.Supp.2d 204, 211 nn. 15-16 (N.D.N.Y.2008) (McAvoy, J., adopting Report-Recommendation on de novo review) [citations omitted].

With regard to the first ground, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) [emphasis added]. By requiring this "showing, " Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Jackson, 549 F.Supp.2d at 212 n. 17 [citations omitted]. The main purpose of this rule is to "facilitate a proper decision on the merits." Id. at 212 n. 18 [citations omitted].28

28 See also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995) ("Fair notice is that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so it may be assigned the proper form of trial.") [citation omitted]; Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) ("[T]he principle function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial.") [citations omitted].

The Supreme Court has long characterized this pleading requirement under Fed.R.Civ.P. 8(a)(2) as "simplified" and "liberal, " and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement. Id. at 212 n. 20 [citations omitted]. However, even this liberal notice pleading standard "has its limits." Id. at 212 n. 21 [citations omitted]. As a result, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet this liberal notice pleading standard. Id. at 213 n. 22 [citations omitted].

Most notably, in Bell Atlantic Corp. v. Twombly , the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74.The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based], " it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965 [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level], " assuming (of course) that all the allegations in the complaint are true. Id. [citations omitted].29

29 See also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) ("[The Supreme Court] is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible plausibility standard, ' which obliges a pleader to atnplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. ")

*5 As have other Circuits, the Second Circuit has recognized that the clarified plausibility standard that was articulated by the Supreme Court in Twombly governs all claims, including claims brought by pro se litigants (although the plausibility of those claims is to be assessed generously, in light of the special solicitude normally afforded pro se litigants).30 It should be emphasized that Fed.R.Civ.P. 8's plausibility standard, explained in Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated, "Specific facts are not necessary" to successfully state a claim under Fed.R.Civ.P. 8(a)(2). Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) [citation omitted; emphasis added]. That statement was merely an abbreviation of the often-repeated point of law-first offered in Conley and repeated in Twombly-that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Twombly, 127 S.Ct. 1965 n. 3 (citing Conley, 355 U.S. at 47) [emphasis added]. That statement did not mean that all pleadings may achieve the requirement of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to relief above the speculative level to a plausible level.31

30 See, e.g., Jacobs v. Mostow, 271 F.App'x 85, 87 (2d Cir. March 27, 2008) (in pro se action, stating, "To survive a motion to dismiss, a complaint must plead enough facts to state a claim up relief that is plausible on its face.'") [citation omitted] (summary order, cited in accordance with Rule 32.1[c][1] of the Local Rules of the Second Circuit); Boykin v. KeyCorp., 521 F.3d 202, 215-16 (2d Cir.2008) (finding that borrower's pro se complaint sufficiently presented a " plausible claim of disparate treatment, " under Fair Housing Act, to give lenders fair notice of her discrimination claim based on lenders' denial of her home equity loan application) [emphasis added].
31 For example, in Erickson, the Supreme Court held that, because the plaintiff-prisoner had alleged that, during the relevant time period, he suffered fi-om hepatis C, he had alleged facts plausibly suggesting that he possessed a sufficiently serious medical need for purposes of an Eighth Amendment claim of inadequate medical care. Erickson, 127 S.Ct. at 2199-2200. Expressed differently, the Court held that such a plaintiff need not also allege that he suffered an independent and "substantial injury" as a result of the termination of his hepatis C medication (a requirement that had been imposed by the district court). This point of law is hardly a novel one, which is presumably why the Erickson decision was relatively brief. Prior to the Supreme Court's decision, numerous decisions, from district courts within the Second Circuit alone, had found that suffering from hepatitis C constitutes having a serious medical need for purposes of the Eighth Amendment. See, e.g., Rose v. Alvees, 01-CV-0648, 2004 WL 2026481, at *6 (W.D.N.Y. Sept.9, 2004); Verlev v. Goord, 02-CV-1182, 2004 WL 526740, at *10 n. 11 (S.D.N.Y. Jan.23, 2004); Johnson v. Wright, 234 F.Supp.2d 352, 360 (S.D.N.Y.2002); McKenna v. Wright, 01-CV-6571, 2002 WL 338375, at *6 (S.D.N.Y. March 4, 2002); Carbonell v. Goord, 99-CV-3208, 2000 WL 760751, at *9 (S.D.N.Y. June 13, 2000). The important thing is that, in Erickson, even the pro se plaintiff was required to allege some sort of fact.

Finally, in reviewing a complaint for dismissal under Fed.R.Civ.P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor. This standard is applied with even greater force where the plaintiff alleges civil rights violations and/or where the complaint is submitted pro se.However, while the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), 32 it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed.R.Civ.P. 8, 10 and 12.33 Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.34 Stated more plainly, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F.Supp.2d at 214 n. 28 [citations omitted].

31 Sealed Plaintif v. Sealed Defendant #1, No. 06-1590, 2008 WL 3294864, at *5 (2d Cir. Aug.12, 2008); see also Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983).
33 See Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir.1972) (extra liberal pleading standard set forth in Haines v. Kerner, 404 U.S. 519 [1972], did not save pro se complaint from dismissal for failing to comply with Fed.R.Civ.P. 8); accord, Shoemaker v. State of Cal., 101 F.3d 108 (2d Cir.1996) (citing Prezzi v. Schelter, 469 F.2d 691) [unpublished disposition cited only to acknowledge the continued precedential effect of Prezzi v. Schelter, 469 F.2d 691, within the Second Circuit]; accord, Praseuth v. Werbe, 99 F.3d 402 (2d Cir.1995).
34 See McNeil v. U.S., 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed... we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The right of self-representation is not a license... not to comply with relevant rules of procedural and substantive law."); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) ( pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law") [citation omitted], accord, Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983); cf. Phillips v. Girdich, 408 F.3d 124, 128, 130 (2d Cir.2005) (acknowledging that pro se plaintiffs complaint could be dismissed for failing to comply with Rules 8 and 10 if his mistakes either "undermine the purpose of notice pleading [ ]or prejudice the adverse party").

C. Standard Governing Motion for Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed.R.Civ.P. 56(e)(2).

*6 A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Anderson, 477 U.S. at 248. As a result, "[c]onclusory allegations, conjecture and speculation... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) [citation omitted]; see also Fed.R.Civ.P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts."[citations omitted]. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. [citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute - even if that nonmoving party is proceeding pro se. 35 (This is because the Court extends special solicitude to the pro se litigant, in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.36 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.36 For this reason, this Court has often enforced Local Rule 7.1(a) (3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement38-even where the nonmoving party was proceeding pro se in a civil rights case.39 35 Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) [citations omitted]; accord, Lee v. Alfonso, No. 04-1921, 2004 U.S.App. LEXIS 21432, 2004 WL 2309715 (2d Cir. Oct. 14, 2004), aff'd, 97-CV-1741, 2004 U.S. Dist. LEXIS 20746, at *12-13 (N.D.N.Y. Feb. 10, 2004) (Scullin, J.) (granting motion for summary judgment); Fox v. Amtrak, 04-CV-1144, 2006 U.S. Dist. LEXIS 9147, at *1-4, 2006 WL 395269 (N.D.N.Y. Feb. 16, 2006) (McAvoy, J.) (granting motion for summary judgment); Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2003) (Sharpe, M.J.) (granting motion for summary judgment); Prestopnik v. Whelan, 253 F.Supp.2d 369, 371-372 (N.D.N.Y.2003) (Hurd, J.).

36 Krug v. County of Rennselaer, 04-CV-0640, 2006 WL 2669122, at *3 (N.D.N.Y. Sept.18, 2006) (McAvoy, J.) ("When dealing with a pro se party, certain procedural rules apply so as to insure that the pro se litigant is not disadvantaged by the lack of legal training. In this regard, the Local Rules require that [a pro se party be informed of the consequences of failing to respond to a motion for summary judgment, before those consequences may be imposed]."); see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) ("This Court has also held that summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default.") [citations omitted].
37 See McNeil v. U.S., 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed... we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ("Nor does the Constitution require judges to take over chores for a pro se [litigant] that would normally be attended to by trained counsel as a matter of course."); Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) ("[I]in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law [even when that strict adherence inures to the detriment of a pro se litigant]."); Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The right of self-representation is not a license... not to comply with relevant rules of procedural and substantive law."); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) ( "[PJro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.") [citation omitted]; LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir.1995) ("Although pro se litigants should be afforded latitude, ... they generally are required to inform themselves regarding procedural rules and to comply with them.... This is especially true in civil litigation.") [internal quotation marks and citations omitted]; Edwards v. INS., 69 F.3d 5, 8 (2d Cir.1995) ("[W]hile a pro se litigant's pleadings must be construed liberally, .. pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.") [citations omitted]; Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) ("[T]he right [to benefit from reasonable allowances as a pro se litigant] does not exempt [the pro se ] party from compliance with relevant rules of procedural and substantive law.") [internal quotation marks and citations omitted].
37 Among other things, Local Rule 7.1(a)(3) requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L.R. 7.1(a)(3).
39 See, e.g., Hassig v. N. Y.S. Dep't of Envtl. Conservation, 01-CV-0284, Decision and Order, at 7 (N.D.N.Y. filed March 4, 2004) (McAvoy, J.), aff'd, No. 04-1773, 2005 WL 290210 (2d Cir. Feb.2, 2005); Lee, 2004 U.S. Dist. LEXIS 20746, at *12-13, 15, aff'd, No. 04-1921, 2004 U.S.App. LEXIS 21432; Harvey v. Morabito, 99-C1913, 2003 WL 21402561, at *1, 3-4 (N.D.N.Y. June 17, 2003) (Sharpe, M.J.), adopted by 99-CV-1913, Order, at 2-3 (N.D.N.Y. filed Jan. 15, 2004) (Munson, J.), aff'd, No 04-1008, 115 F.App'x 521 (2d Cir. Dec.23, 2004); Krug, 2006 WL 2669122, at *2-3; Fox, 2006 U.S. Dist. LEXIS 9147, at *2-3, 2006 WL 395269; Singleton v. Caron, 03-CV-0455, 2005 WL 2179402, at *3-4 (N.D.N.Y. Sept.5, 2005) (Peebles, M.J.), adopted by 03-CV-0455, 2006 WL 2023000, at *3 (N.D.N.Y. July 18, 2006) (Sharpe, J.); Govan, 289 F.Supp.2d at 295; Butler v. Weissman, 00-CV-1240, 2002 WL 31309347, at *3 (N.D.N.Y. June 20, 2002) (Sharpe, M.J.), adopted by 00-CV-1240, Decision and Order, at 1-2 (N.D.N.Y. filed July 22, 2002) (Kahn, J.); DeMar v. Car-Freshner Corp., 49 F.Supp.2d 84, 86 & n. 1 (N.D.N.Y.1999) (McAvoy, C.J.); Costello v. Norton, 96-CV-1634, 1998 WL 743710, at *1 n. 2 (N.D.N.Y. Oct.21, 1998) (McAvoy, C.J.); Squair v. O'Brien & Gere Eng'rs, Inc., 96-CV1812, 1998 WL 566773, at *1 n. 2 (N.D.N.Y. Aug.21, 1998) (Scullin, J.); see also Monahan v. N.Y. City Dep't of Corr., 214 F.3d 275, 292 (2d Cir.2000) (discussing, in pro se civil rights case, district courts' discretion to adopt local rules like 7.1[a] [3] "to carry out the conduct of its business").

III. ANALYSIS

A. Plaintiffs First Amendment Claim

Plaintiff claims that Defendants violated his rights under the Free Exercise Clause of the First Amendment by denying him food consistent with his Rastafarian faith. The First Amendment guarantees the right to free exercise of religion. U.S. Const. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)." Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause." Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir.2003) (citation omitted).

This protection extends "into... aspects of prison life including, pertinently, that of an inmate's diet...." Ward v. Goord, 06-C1429, 2009 WL 102928, at *9 (N.D.N.Y. Jan.13, 2009) (Hurd, J.) (citation omitted). "The Second Circuit has held that it is clearly established that a prisoner has a right to a diet consistent with his or her religious scruples." Ward, 2009 WL 102928, at *9 (citation omitted). Therefore, "Courts have generally found that to deny prison inmates the provision of food that satisfies the dictates of their faith does unconstitutionally burden their free exercise rights." Johnson v. Guiffere, 04-CV-0057, 2007 WL 3046703, at *4 (N.D.N.Y. Oct.17, 2007) (Hurd, J.) (internal quotation marks and citation omitted). "A free exercise claim arising from such a denial brings into focus the tension between the right of prison inmates to freely enjoy and exercise their religious beliefs on the one hand, and the necessity of prison officials to further legitimate penological interests on the other hand." Guiffere, 2007 WL 3046703, at *4 (citation omitted).

*7 "Examination of plaintiffs free exercise claim entails application of a three-part, burden shifting framework." Id. at 5 (citation omitted)." A party asserting a free exercise claim bears the initial burden of establishing that the disputed conduct infringes on his or her sincerely held religious beliefs." Id. (citations omitted)." Importantly, in evaluating this factor the court must be wary of questioning the centrality of particular beliefs or practices to a faith, or a validity of particular litigants' interpretations of those creeds, and instead may only consider whether the particular plaintiff holds a belief which is religious in nature." Id. (internal quotation marks and citations omitted). Stated another way, "[t]he freedom to exercise religious beliefs cannot be made contingent on the objective truth of such beliefs." Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.1984). Rather, a subjective test must be employed to determine whether the disputed conduct infringes on the plaintiffs sincerely held religious beliefs. See Ford v. McGinnis, 352 F.3d 582, 589-90 (2d Cir.2003).

"Once a plaintiff has made this showing, the burden then shifts to the defendant to identify a legitimate penological purpose justifying the decision under scrutiny." Guiffere, 2007 WL 3046703, at *5 (citations omitted)." In the event such a penological interest is articulated, its reasonableness is then subject to analysis under the test set out by the Supreme Court in Turner v. Salley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)." Id. (citations omitted).

"Under Turner, the court must determine whether the governmental objective underlying the regulations at issue is legitimate and neutral, and whether the regulations are rationally related to that objective." Id. (internal quotation marks and citation omitted). The court then asks whether the inmate is afforded adequate alternative means for exercising the right in question." Id. (citation omitted)." Lastly, the court must examine the impact that accommodation of the asserted constitutional right will have on others guards and inmates in the prison." Id. (internal quotation marks and citation omitted)." Decisions rendered since Turner have clarified that[, ] when applying this test, a court should examine the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.'" Id. (citations omitted).

With all of this in mind, it is important to note that "[t]here may be inconveniences [regarding denials of religiously required food] so trivial that they are most properly ignored." Tafari v. Annets, 06-CV-11360, 2008 WL 2413995, at *16 (S.D.N.Y. June 12, 2008) (quoting McEachm v. McGuinnis, 357 F.3d 197, 203 n. 6 [2d Cir.2004])." In this respect, this area of the law is no different from many others in which the time-honored maxim de minimis non carat lex applies. " McEachm, 357 F.3d at 203 n. 6.

*8 Here, as an initial matter, Plaintiff has not alleged facts plausibly suggesting, or adduced admissible record evidence establishing, that the disputed conduct infringed on his sincerely held religious beliefs. In particular, Plaintiff has not alleged or established how the meals that he received were actually "wrong." For example, Plaintiff has not alleged or established that the meals were "wrong" because they were not in conformity with his Rastafarian faith, or because they contained a product to which he is allergic. Nor has Plaintiff alleged or established how receiving non-vegetarian meals infringed on his sincerely held religious beliefs. See Benjamin v. Coughlin, 905 F.2d 571, 580 (2d Cir.1990) (dismissing Rastafarians'"dietary claim" asserting they had constitutional right to observe "Ital, " because plaintiffs "failed to clearly define the claim or to make the evidentiary showing required to establish any constitutional dietary claim").

In any event, Plaintiff has not alleged facts plausibly suggesting, or adduced admissible record evidence establishing, that the "wrong meals" he (allegedly) received constituted a burden that was anything more than de minimis in nature. As explained above in Part I.B. of this Decision and Order, Plaintiff has not established (or even alleged) the number of "wrong meals" that he (allegedly) received.40 As also explained above in Part I.B., in their motion for summary judgment, Defendants concede that Plaintiff was denied vegetarian food during "a few of his meals." Furthermore, in an effort to quantify the extent of this deprivation, Defendants estimate that Plaintiff received the "wrong meal" about "a half dozen or so times."

40 As explained above in Part I.B. of this Decision and Order, the closest Plaintiff comes to doing so is when he provides the Court with a calendar, in which he has circled 72 days between June 29, 2005, and October 20, 2005, on which he asserts he either (1) "miss[ed]" a meal. or (2) received his meal late.

For the sake of argument, the Court will assume that the number of "wrong meals" was three times the number of "wrong meals" conceded by Defendants, which would be the equivalent of one "wrong meal" per week for each of the 18 weeks that Plaintiff was incarcerated at ACCF. What is as significant as the number of "wrong meals" is the time period over which they occurred. Here, such "wrong meals" were not delivered to Plaintiff consecutively. Rather, Plaintiff asserts they were delivered over the course of Plaintiffs incarceration at ACCF, from June 30, 2005, until October 25, 2005 -a time period of approximately 118 days. Given that Plaintiff was supposed to receive three meals per day, Plaintiff was supposed to receive approximately 354 meals while at ACCF. Assuming that Plaintiff received the "wrong meal" approximately 18 out of 354 times, the Court finds that a rational juror could not conclude that the resulting burden on Plaintiffs religious beliefs was anything more than de minimis.

In the analogous case of Odom v. Dixion, the Western District of New York held that the New York State Department of Correctional Services' failure to provide a prisoner with Kosher meals on seven out of 33 occasions ( i.e., over an eleven-day time period) did not "support a § 1983 violation under either the First Amendment or RLUIPA." Odom v. Dixion, 04-CV-0889, 2008 WL 466255, at *11 (W.D.N.Y. Feb.15, 2008) (noting that deprivation was due to "an administrative error based on [the prisoner's] failure to timely advise [the facility's] food service personnel of his brief confinement on keeplock status"). Other courts have issued similar rulings. See, e.g., Norwood v. Strada, 249 F.App'x. 269, 272 & n. 1 (3d Cir.2007) (denial of religiously certified "halal" meals on seven out of seven occasions, during prison's two-and-one-half-day emergency lock-down, was "a mere de minimis intrusion" that failed to substantially burden the inmate's religious beliefs); Rapier v. Harris, 172 F.3d 999, 1006 n. 4 (7th Cir.1999) (affirming summary judgment for defendants because denial of pork-free meal on three occasions out of 810 meals constituted de minim is burden, where the denials were caused by "institutional shortage, " and plaintiff "has not alleged a routine or blanket practice of denying him pork-free meals."); Thomas v. Picio, 04-CV-3174, 2008 WL 820740, at *6 & n. 8 (S.D.N.Y. Mar.26, 2008) (assuming that inmate plaintiff was denied three or four Kosher meals for one or two consecutive days, "such a denial is not a substantial burden" on her free exercise of religion); Omar v. Casterline, 414 F.Supp.2d 582, 593 (W.D.La.2006) ("[T]he refusal to hold three meals [until sunset] because of Ramadan states only a de minimis imposition on... free exercise rights.")41

40 Cf. Tafari, 2008 WL 2413995, at *16 (denial of Kosher meals on a few separate occasions "did not substantially burden [Plaintiffs] religious beliefs and constituted, at most, a de minimis violation."); Ward, 2009 WL 102928, at *9 ("The failure to provide a single meal is insufficient to allege a constitutional violation."); Peterson v. Price, 06-CV-0106, 2007 WL 2893009, at *6 (N.D.W.Va. Sept.28, 2007) ("[T]he failure to provide inmates with one or two kosher meals does not rise to the level of a constitutional claim.").

*9 For each of these alternative reasons, Plaintiffs First Amendment claim is dismissed.

B. Plaintiff's Eighth Amendment Claim

Plaintiff claims that Defendants violated his Eighth Amendment rights in two separate ways. First, he claims that, by denying him food consistent with his vegetarian diet, which was approved by the medical department at ACCF, he was denied the right to adequate prison conditions. Second, he claims that, by knowingly being allowed to lose significant weight, he was denied the right to adequate medical care. The relevant legal standard governing both claims is the same.

"The Eighth Amendment prohibits cruel and unusual punishments' in the course of incarceration." Labounty v. Gomez, 94-C3360, 1998 WL 214774, at *2 (S.D.N.Y. May 1, 1998)." To bring a cause of action pursuant to Section 1983 of Title 42, United States Code, for a violation of the Eighth Amendment's prohibition, a plaintiff must establish that the deprivation of which he is complaining is sufficiently serious' to constitute cruel and unusual punishment and that a defendant's actions in allowing the deprivation must have amounted to deliberate indifference." Labounty, 1998 WL 214774, at *2 (citing Farmer v. Brennan, 511 U.S. 825, 114 [1994, 114 S.Ct. 1970, ___ ____, 128 L.Ed.2d 811, ___ ___])." Thus, there is an objective and subjective component to the test." Id. (citing Rivera v. Senkowski, 62 F.3d 80, 84 [2d Cir.1995]).

"The denial of a medically proscribed diet may constitute an Eighth Amendment violation under certain circumstances." Abdush-Shahid v. Coughlin, 933 F.Supp. 168, 180 (N.D.N.Y.1996) (citing Robles v. Coughlin, 725 F.2d 12, 15-16 [2d Cir.1983]) (other citations omitted). Likewise, "under certain circumstances a substantial deprivation of food may well be recognized as being of constitutional dimension." Robles, 725 F.2d at 15-16 [citations omitted]; see also Chapdelaine v. Keller, 95-C1126, 1998 WL 357350, at *12 (N.D.N.Y. Apr.16, 1998) (Sharpe, M.J.) ("[T]he Eighth Amendment requires that prisoners receive nutritionally adequate food prepared and served in conditions that do not present an immediate danger to the health of the inmates who consume it"). However, "[m]ere negligence or inadvertent failure to provide a medically necessary diet is not a constitutional violation." Abdush-Shahid, 933 F.Supp. at 180.

To establish a valid claim that the denial of food (or the denial of a medically proscribed diet) constitutes an Eighth Amendment violation, one must establish that there was a "sufficiently serious condition" that resulted from the food not being received. See, e.g., Labounty, 1998 WL 214774, at *2. A condition is serious for constitutional purposes if it presents "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (internal quotation marks and citations omitted).42

42 See also Bost v. Bockelmann, 04-CV-0246, 2007 WL 527320, at *8 (N.D.N.Y. Feb.20, 2007) (Sharpe, J.) (concluding that, although Plaintiff allegedly lost fifteen pounds in two days, "there is no evidence in the record from which a reasonable factfinder could conclude that plaintiffs food intake and weight loss concerns represented a condition of urgency or resulted in degeneration or extreme pain sufficient to implicate an Eighth Amendment violation"); cf. Beckford v. Portuondo, 151 F.Supp.2d 204, 213 (N.D.N.Y.2001) (Kahn, J.) (material issue of fact existed with regard to inmate's Eighth Amendment claim because evidence showed that inmate was deprived of two out of three meals per day for eight days); Moss v. Ward, 450 F.Supp. 591, 594, 597 (W.D.N.Y.1978) (material issue of fact existed with regard to inmate's Eighth Amendment claim because evidence showed that inmate was completely deprived of food for four consecutive days, and was given only one meal a day for next three days).

If Plaintiff is able to establish a "sufficiently serious condition, " he must also establish "that corrections personnel intentionally denied, delayed access to, or interfered with the [receipt of food]." Abdush-Shahid, 933 F.Supp. at 180; see also Portuondo, 151 F.Supp.2d at 213. Stated another way, deliberate indifference requires more than "negligent oversight." Bockelmann, 2007 WL 527320, at *10. In addition, a showing of deliberate indifference requires more than just "vague and conclusory allegations." Labounty, 1998 WL 214774, at *2. Finally, it is worth noting that a plaintiff has "a duty to inform [facility] staff that he was not receiving his medically prescribed diet, " and if he "fail[s] to do so[, ] [d]eliberate indifference does not exist." Laboun, 1998 WL 214774, at *2.

1. Whether Plaintiffs Weight Loss Constitutes a Serious Medical Need

*10 As an initial matter, Plaintiffs claim that he is allergic to meat and eggs is problematic because the admissible record evidence before the Court fails to establish a diagnosis by any medical professional that Plaintiff suffers from allergies to meat or eggs. See Bockelmann, 2007 WL 527320, at *8 (noting, as an initial problem to Plaintiffs claim that his medical condition constitutes a serious medical need, that "the record before the court fails to disclose a diagnosis by any medical professional that [Plaintiff] suffers from a medical condition requiring the high calorie diet which he so persistently sought"). The only proof that Plaintiff has offered that supports his claim that he is allergic to meat and eggs is his statement to medical staff, as well as the letters he wrote to Defendant Rockwell, indicating that he is allergic to meat and eggs. (Dkt. No. 54, Part 7, at 26, 28, 30, 32.) Apart from the conclusory and self-serving nature of this "evidence, " it should be noted that (1) Plaintiff failed to inform Defendants of this alleged allergy for roughly a week, despite having multiple opportunities to do so, and (2) he affirmatively indicated during his screening on June 30, 2005, that he did not suffer from any allergies.

However, even assuming that Plaintiff is indeed allergic to meat and eggs, and was entitled to a vegetarian diet for that reason, the only harm that he has alleged as a result of being deprived vegetarian meals on an unspecified number of occasions is that he lost thirty (30) pounds over a four-month period, and that this weight loss contributed to him suffering migraine headaches and dizziness. There are three problems with this alleged harm.

First, although Plaintiff claims that Downstate Correctional Facility has a record of his weight, which supports his weight loss claim, Plaintiff has failed to adduce admissible record evidence establishing this loss of thirty pounds. Second, the record reflects that, at no point in any of the complaints that Plaintiff filed between July and October 2005, or during any of his visits with medical staff, did Plaintiff indicate that he had lost any weight or was experiencing headaches or dizziness. Finally, Plaintiff does not adduce admissible record evidence establishing (or even allege facts plausibly suggesting) that he has been unable to gain weight since leaving ACCF, or that the headaches and dizziness have persisted since October 2005.

As a result, even assuming that Plaintiff lost thirty pounds and experienced dizziness and headaches over a four-month period (from June 30, 2005 to October 25, 2005), as the District Judge Gary L. Sharpe of this Court concluded Bost v. Bockelmann, the undersigned concludes that "there is no evidence in the record from which a reasonable factfinder could conclude that plaintiffs weight loss concerns represented a condition of urgency or resulted in degeneration or extreme pain sufficient to implicate an Eighth Amendment violation." Bockelmann, 2007 WL 527320, at *8.

2. Whether Defendants Were Deliberately Indifferent to any of Plaintiff's Serious Medical Needs

*11 Even if the Court were to find a question of fact as to whether Plaintiffs weight loss constituted a sufficiently serious condition, the Court could not find any admissible record evidence establishing that Defendants were deliberately indifferent to this condition. When viewing the record in the light most favorable to Plaintiff, the Court finds that, during his incarceration at ACCF, Plaintiff (1) wrote four letters to Defendant Rockwell at ISU, (2) complained twice to unidentified corrections officers about his food, and (3) notified the medical staff that he was receiving the "wrong meals" one time in a Health Services Request Form. See Part I.B. of this Decision and Order.

Based on these undisputed facts, the Court finds that there is at least a question of fact as to whether there were certain days on which Plaintiff did not receive vegetarian meals. However, the Court also finds that "[t]here is no evidence in the record... to suggest that this deprivation was deliberate and calculated to deprive the plaintiff of the nourishment constitutionally required and necessary to avoid... weight loss, as distinct from the result of negligent oversight[, ] which does not rise to a level of deliberate indifference." Bocke/mann, 2007 WL 527320, at *10. "Simply stated, the evidence is lacking that any of the constituent groups sued in this action, including the county defendants, prison medical personnel, and the food service providers at [ACCF], were both cognizant of a serious medical need on the part of the plaintiff and aware that their failure to be faithful in providing the prescribed... diet would result in a substantial risk of serious harm." Bockelmann, 2007 WL 527320, at *10.

In support of this finding, the Court makes four points. First, of the four letters that Plaintiff wrote to ISU, two focused almost exclusively on the quality of the food he received, 43 and another was the first letter that he sent to ISU, notifying them that he was a vegetarian. (Dkt. No. 54, Part 7, at 26, 28, 33.) The remaining letter, written on July 29, 2005, explained that Plaintiff was a vegetarian and implied that Plaintiff had problems receiving vegetarian meals. (Dkt. No. 54, Part 7, at 30.) However, neither this letter, nor any of the other letters, in any way stated that Plaintiff was losing weight, or suffering from other side-effects as a result of receiving the "wrong meal." (Dkt. No. 54, Part 7, at 26, 28, 30, 32, 33, 35, 38, 40, 42.)

43 "The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing." Bockelmann, 2007 WL 527320, at *10 (citing LeMaire v. Maass, 12 F.3d 1444, 1456 [9th Cir.1993] [other citation omitted]).

Second, the Court notes that Plaintiff indicated on August 20, 2005, in a Health Services Request Form, that "everyday they send up the wrong meal." The record reflects that, after filling out this form, Plaintiff filled out Health Services Request Forms on two separate occasions (once in early September 2005 and once on October 13, 2005). On neither occasion did Plaintiff mention that he was still receiving the "wrong meal." The Court finds this fact material because, if Plaintiff was having a problem with his meals, based on the fact that he had previously notified the medical department in a Health Services Request Form of his problem, it would be reasonable to expect that he would have again voiced this problem to the medical department.

*12 Third, the record reflects that, in all of the visits that Plaintiff had from the medical department throughout his four-month stay at ACCF, never once did he speak of weight loss, or mention other side-effects that he was suffering as a result of receiving the "wrong meal."

Finally, the record reflects that Defendant Rockwell took action to make the kitchen staff and medical staff aware of Plaintiffs issues; the medical staff also took action to so notify the kitchen staff; and the kitchen staff did not intentionally deprive Plaintiff of his vegetarian diet.44 Simply stated, whatever harm Plaintiff suffered cannot be attributed to anything more than negligence, which, again, is not actionable under the Eighth Amendment.

44 In his memorandum of law in opposition to Defendants' motion for summary judgment, Plaintiff argues that "a screw up or simple negligence or inadvertent failure to provide food or care as requested automatically [gives rise] to a deprivation of constitutional privilege." However, the law is clear that simple negligence does not rise to the level of deliberate indifference. See Bockelmann, 2007 WL 527320, at * 10. Rather, deliberate indifference is a state of mind akin to criminal recklessness. Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003); Hathaway v. Coughlin ("Hathaway II"), 99 F.3d 550, 553 (2d Cir.1996).

For all of these reasons, Plaintiffs Eighth Amendment claims are dismissed.

C. Plaintiffs Fourteenth Amendment Claim

Magistrate Judge Peebles recommended that the Court dismiss Plaintiffs Fourteenth Amendment claim that Defendants' refusal to adhere to the Court Order that he receive a special vegetarian diet associated with his religious practices violated Plaintiffs right to equal protection under the law. Neither party has objected to this recommendation. As a result, the Court reviews the recommendation for clear error, and finds no such error. Accordingly, for the reasons set forth in Magistrate Judge Peebles's Report-Recommendation, Plaintiffs Fourteenth Amendment claim is dismissed.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles's Report-Recommendation (Dkt. No. 66) is ADOPTED in part, as described above; and it is further

ORDERED that Defendants' motion for summary judgment (Dkt.Nos.53, 54) is GRANTED in its entirety; and it is further

ORDERED that Plaintiffs Second Amended Complaint (Dkt. No. 27) is DISMISSED in its entirety. The clerk is directed to enter judgment and close this case.

Attorneys and Law Firms

Lester Hardy, Raleigh, NC, pro se.

Lisa Y. Harper, N.C. Dept. of Justice, Raleigh, NC, for Defendants.

ORDER

LOUISE W. FLANAGAN, Chief Judge.

*1 This matter comes before the court on the motion for summary judgment (DE # 35) of defendants Boyd Bennett (hereinafter "defendant Bennett") and Dennis Rowland (hereinafter "defendant Rowland"). The matter is ripe for adjudication. For the following reasons, the court grants defendants' motion.

STATEMENT OF THE CASE

On October 17, 2006, plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that defendants Bennett and Rowland deprived him of his right to outdoor exercise in violation of the Eighth Amendment of the United States Constitution. The court conducted a frivolity review of plaintiff's claim on November 20, 2006, and allowed it to proceed. The court thereafter issued an order of investigation directing North Carolina Prisoner Legal Services (hereinafter "NCPLS") to investigate plaintiffs claim. On December 4, 2006, plaintiff notified the court that he was rejecting NCPLS's services.

On June 15, 2007, defendants filed a motion for summary judgment, arguing that plaintiffs claims are without merit. Alternatively, defendants argue that they are entitled to qualified immunity. Plaintiff filed a response to defendants' motion on June 22, 2007. Plaintiff thereafter filed several random pleadings.

STATEMENT OF THE FACTS

The facts viewed in the light most favorable to plaintiff are as follows. Plaintiff is a state inmate confined at Polk Correctional Institution in Butner, North Carolina (hereinafter "Polk"), who is serving a sentence of sixty-four (64) years, four (4) months, and fifteen (15) days. In November 2005, plaintiff was involved in an incident where he threw coffee on a female officer, punched her in the face, and threatened to kill her. (Defs.' Mem., Rowland Aff. ¶ 6, Ex. D.) The officer suffered a spinal cord strain and facial injuries as a result of the attack. (Id.)

Following the assault, plaintiff was convicted of assault on a staff member and was demoted to high security maximum control (hereinafter "H-CON") status. Plaintiff was evaluated by psychologist Robley Bowman and found to be psychologically suitable for transfer to CON, and subsequently was transferred to H CON on December 1, 2005. ( Id., Bowman Aff. ¶ 5.) While on H-CON status, plaintiff alleges that he was denied outdoor recreation. Plaintiff states that, as a result of this alleged ...


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