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Russell v. Pallito

United States District Court, D. Vermont

March 23, 2017


          OPINION AND ORDER (DOCS. 30, 33, 41, 63)

          Geoffrey W. Crawford, Judge United States District Court

         Plaintiff Justin Russell, an inmate of the Vermont Department of Corrections ("DOC"), has brought this civil-rights lawsuit against four officials and employees of the DOC: Andrew Pallito, the former Commissioner; Lisa Menard, the current Commissioner; Cynthia Mason, a Correctional Officer; and Richard Bilodeau, a Correctional Facility Shift Supervisor. Russell alleges that Pallito violated his rights under the Free Exercise Clause of the First Amendment when he instituted a policy that Muslim prisoners would be provided kosher meals rather than halal meals. Russell alleges that Menard has continued this policy during her time as Commissioner.[1] Russell asserts claims for damages against both Pallito and Menard in their personal capacities, and for injunctive and declaratory relief against Menard in her official capacity. He also seeks class certification on these claims.

         Currently ripe for decision are the following motions: Defendant Menard's Motion to Dismiss (Doc. 30); Defendant Pallito's Motion for Judgment on the Pleadings (Doc. 33); and Russell's Motion to Certify Class Action (Doc. 41). The Report and Recommendation of the United States Magistrate Judge on these motions was filed on August 9, 2016. (Doc. 63.) Plaintiffs objections were filed on August 23, 2016. (Doc. 64.) Defendants did not file objections.


         A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge 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); accord Cullen, 194 F.3d at 405.

         In evaluating both a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and a motion for judgment on the pleadings, under Rule 12(c), a court evaluates whether the complaint '"contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         After careful review of the record, the Magistrate Judge's Report and Recommendation, and the objections, this court ADOPTS IN PART and REJECTS IN PART the Magistrate Judge's recommendations.

         I. Personal Involvement

         Russell first challenges the Magistrate Judge's recommendation to dismiss the individual damages claims against Pallito and Menard on the grounds that the complaint does not sufficiently allege their personal involvement in Russell's claim that the DOC instituted a policy of providing kosher, rather than halal, meals to Muslim prisoners. (Doc. 64 at 2-5.)

         The court recites the following allegations relevant to Russell's claims against Pallito and Menard. The complaint alleges that Russell was first approved for a halal diet on September 30, 2014, when he was housed at Northwest State Correctional Facility ("NWSCF") in Swanton, Vermont. (Doc. 61 ¶ 12.) He was transferred to Northern State Correctional Facility ("NSCF") in Newport, Vermont, on October 7. (Id. ¶ 19.) In December, according to the complaint, "pursuant to a policy change approved and implemented by DOC Commissioner Andrew Pallito, halal-approved prisoners [at NSCF] began receiving prepackaged meals that were clearly labeled 'kosher.'" (Id. ¶ 13.) As a result, "Russell began to abstain from eating anything except fruits and vegetables . . . because he could not be sure that anything else was halal." (Id. ¶ 37.) He began to lose weight because he was not getting enough calories. (Id. ¶ 37.)

         On January 5, 2015, Russell was transferred back to NWSCF, where "prisoners were still receiving halal meals, " rather than kosher substitutes. (Doc. 61 ¶ 38.) Eating well, Russell gained the weight he had lost. (Id. ¶ 38.) Russell was released to community supervision on January 26, 2015, but "lost his housing" in early March and was returned to prison. (Id. ¶ 39.)

         Russell was initially placed at NWSCF. (Doc. 61 ¶ 40.) When Russell was incarcerated there before, in January 2015, Muslim prisoners had received halal meals, but now they were "given prepackaged meals that were clearly labeled 'kosher.'" (Id.) Shortly thereafter, Russell was transferred back to NSCF, where "[h]e and other Muslim prisoners were given a prepackaged kosher diet in place of halal." (Id. ¶ 41.) According to Russell, "[t]his practice, which was instituted at the direction of Defendant Pallito, has continued since Defendant Menard" became the Commissioner in summer 2015. (Id.)

         The Magistrate Judge concluded that the complaint insufficiently alleged the personal involvement of either Pallito or Menard. (Doc. 63 at 23-25.) The Magistrate Judge found that the "sole factual allegation" regarding Pallito-that the meal change in December 2014 was "pursuant to a policy change approved and implemented by" Pallito-"merely reflect[ed] a respondeat superior argument." (Id. at 23.) The rest of the allegations regarding Pallito were conclusory, and therefore also insufficient to allege Pallito's personal involvement. (Id. at 24.) With regard to Menard, the Magistrate Judge concluded that the complaint failed to allege that "any lawsuits or other grievances" alerted Menard to the policy in question, which is necessary to hold liable a supervisor who continues an unconstitutional policy but did not create or implement it. (Id. at 25.)

         The court respectfully disagrees with the Magistrate Judge's conclusion that the complaint does not sufficiently allege Pallito's personal involvement. The complaint alleges that, at two different prisons run by the DOC, Russell and other Muslim prisoners stopped receiving halal meals and instead received kosher meals. Thus the complaint alleges that the asserted unconstitutional conduct is the result of a policy in place across multiple Vermont prisons. While it is true that the complaint lacks specific allegations regarding when or how Pallito implemented this policy, these are unnecessary to allege his personal involvement in this case.

         A complaint can allege facts "upon information and belief where the facts are peculiarly within the possession and control of the defendant or where the belief is based on factual information that makes the inference of culpability plausible." Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotation marks and citations omitted) (citing Iqbal, 556 U.S. at 678 and Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008)). Determining the plausibility of a claim is a '"context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 679). Here, it is a reasonable inference that a policy that changed the food served to Muslim prisoners at multiple prisons within the DOC was either created or implemented by the DOC Commissioner. These are the kinds of policy decisions that one expects might fall within his or her purview. This is not an attempt to conjure a custom or policy out of a single instance of alleged unconstitutional conduct and then conclusorily attribute it to a supervisory defendant. Cf. Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012) ("[I]solated acts of excessive force by non-policymaking municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability."); Birdsall v. City of Hartford, 249 F.Supp.2d 163, 172-73 (D. Conn. 2003) (granting summary judgment to police chief on plaintiff s excessive force claim where plaintiff "presented no evidence" that police chief had "initiated a policy or custom requiring or permitting the use of excessive force" and no evidence of "other incidents similar ... to suggest that the alleged use of undue force was a standard practice"). Accordingly, the complaint satisfactorily alleges the personal involvement of Pallito under the third means of establishing supervisory liability under Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995): a supervisor is liable if he "created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of that policy or custom."[2]

         Pallito argues in his motion for judgment on the pleadings that, under DOC policy, he is not responsible for determinations regarding "food service operations" and "menu formulation, " and that those decisions are instead made by the Director of Administrative Services, prison superintendents, and other food-service staff. (Doc. 33 at 17; Doc. 33-1 at 2 (DOC Directive 354.01); Doc. 33-1 at 7 (DOC Directive 354.02).) But at the same time, Pallito acknowledges that he "provided general guidance regarding the [DOC's] food service options." (Doc. 33 at 17.)

         It may be that the evidence proves Pallito's version of the facts, and shows that he had nothing to do with the decision to give kosher meals to Muslim prisoners. But in evaluating Pallito's motion for judgment on the pleadings (evaluated under the same standard as a motion to dismiss, see Hoyden v. Paterson, 594 F.3d 150, 157 n.4 (2d Cir. 2010)), the court must accept the factual allegations in the complaint as true and draw all reasonable inferences therefrom. "Plausibility" is not a measure of "probability." Iqbal, 556 U.S. at 678. Said another way, the allegations "need not be more likely than other possibilities." Loreley Financing (Jersey) No. 3 Ltd. v. Wells Fargo Sec, LLC, 797 F.3d 160, 174 (2d Cir. 2015) (citing Bell Ail. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The court cannot conclude at this stage of the proceedings that it is implausible that Pallito played a role in this alleged change of policy, especially on such a sensitive issue as religious requirements and dietary restrictions.

         Russell also contends that the Magistrate Judge wrongly concluded that Menard, who became DOC Commissioner in September 2015, had no personal involvement in the alleged violations. (Doc. 64 at 4-5.) He argues that Menard had notice of the "ongoing unconstitutional harms when she assumed office, " because "this very lawsuit was then underway, " and that in any event, she was brought in as a defendant in the first amended complaint in December 2015. (Doc. 64 at 4; Doc. 21.) Defendants respond that the complaint "alleged no facts plausibly demonstrating that Menard knew or learned about the policy or practice in issue or this lawsuit through grievance appeals, letters, other complaints, reports or meetings and decided to allow it to continue." (Doc. 67 at 8-9.)

         A supervisory defendant may be held liable, not only for creating a policy, but also for allowing it to continue after learning of it. K & A Radiologic Tech. Servs., Inc. v. Comm 'r of Dep't of Health of State of N.Y., 189 F.3d 273, 278 (2d Cir. 1999); Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Doe v. New York, 97 F.Supp.3d 5, 11 (E.D.N.Y. 2015). The complaint alleges that Menard is the current DOC Commissioner and names her as a defendant. (Doc. 61 ¶ 4.) It alleges that the policy of serving kosher meals to Muslim prisoners has continued since Menard became Commissioner in 2015. (Id. ¶ 41.) Thus, the complaint alleges that Menard learned of the policy-when she was named as a Defendant and served with the complaint-and that she has allowed the policy to continue. To the extent Russell seeks damages for kosher meals instead of halal meals served to him after Menard became Commissioner and after she learned of the policy, Menard may be liable.

         Accordingly, the court rejects the Magistrate Judge's recommendation to grant Defendants' motions on the basis of personal involvement and dismiss Russell's claims against Defendants in their personal capacities for money damages. Instead, the court denies the motions on those grounds.

         II. ...

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