GARY L. SHARPE, Senior District Judge.
Plaintiff Gavin C. Thomas commenced this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed in forma pauperis. Dkt. No. 1 ("Compl."); Dkt. No. 7 ("IFP Application").
Thereafter, defendants Delaney and Dupra filed an answer to the amended complaint. Dkt. No. 29. On March 30, 2018, this Court issued a Mandatory Pretrial Discovery and Scheduling Order. Dkt. No. 31.
On May 4, 2018, plaintiff filed a motion to amend his amended complaint. Dkt. No. 34 ("May 2018 Prop. SAC"). Thereafter, defendant LaValley was served, and he filed an answer to the amended complaint. Dkt. No. 40.
Presently before the Court is plaintiff's second motion to amend his amended complaint. Dkt. No. 43 ("June 2018 Prop. SAC").
The legal standard governing motions to amend was discussed at length in the March 2018 Order, and it will not be restated in this Decision and Order. See March 2018 Order at 2-4.
Plaintiff's proposed second amended complaint re-asserts the First Amendment claims against defendants Dupra, Delaney, and LaValley contained in the amended complaint. Compare Dkt. No. 24, with June 2018 Prop. SAC. Plaintiff also seeks to add claims against these defendants under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, and the Equal Protection Clause of the Fourteenth Amendment, as well as a claim for harassment. See generally June 2018 Prop. SAC.
In addition to these claims, the proposed second amended complaint seeks to add as defendants Corrections Officers Stoughton and Crowningshield. See June 2018 Prop. SAC at 3-5. Plaintiff's proposed claims against Corrections Officer Stoughton are based on allegations that he confronted plaintiff about plaintiff's hair style on February 18, 2018, then wrote plaintiff a misbehavior report, placed him in keeplock for twenty-four hours, and revoked his phone, packages, commissary, and recreation privileges for seventeen days because of his hair. Id. at 3. Plaintiff's proposed claims against Corrections Officer Crowningshield are based on allegations that he confronted plaintiff in the prison yard on May 18, 2018, told plaintiff that he knows that plaintiff sued his "friends," then threatened plaintiff and confiscated his identification card to "deprive [plaintiff] recreation[.]" Id. at 4.
Liberally construed, the proposed second amended complaint asserts the following claims: (1) claims against defendants Dupra, Delaney, LaValley and Corrections Officer Stoughton for interference with plaintiff's right to freely exercise his religion, in violation of plaintiff's rights under the First Amendment and RLUIPA
"RLUIPA does not authorize claims for monetary damages against state officers in either their official or individual capacities." Holland v. Goord, 758 F.3d 215, 220-22 (2d Cir. 2014). Accordingly, plaintiff's RLUIPA claims for monetary damages are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for plaintiff's failure to state a claim upon which relief may be granted.
The Equal Protection Clause requires that the government treat all similarly situated people alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Specifically, the Equal Protection Clause "bars the government from selective adverse treatment of individuals compared with other similarly situated individuals if `such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'" Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)). To state a viable claim for denial of equal protection, a plaintiff generally must allege "purposeful discrimination . . . directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). In the alternative, under a "class of one" theory, plaintiff must allege that he has been intentionally treated differently from others similarly situated, with no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003).
Here, plaintiff alleges in conclusory fashion that the actions of the named and proposed defendants constitute "religious discrimination." See June 2018 Prop. SAC at 2, 5. Plaintiff's proposed second amended complaint does not allege that any of the named or proposed defendants treated all members of the Rastafarian religion, to which plaintiff purports to belong, differently than members of other religious groups with regard to hair length or style. Moreover, assuming that plaintiff has intended to assert an equal protection claim under a "class of one" theory, the proposed second amended complaint is devoid of any allegations that plaintiff was intentionally treated differently from others similarly situated, with no rational basis for the difference in treatment. See Village of Willowbrook, 528 U.S. at 564. In fact, the proposed second amended complaint fails to identify any individuals treated differently than plaintiff under a similar situation. See Vaher v. Town of Orangetown, 916 F.Supp.2d 404, 434 (S.D.N.Y. 2013) (dismissing the plaintiff's Equal Protection claim where the amended complaint was "completely devoid of any reference to `similarly situated' or `substantially similar' individuals"). Instead, plaintiff's claim that he was discriminated against is entirely conclusory, which is not enough to survive sua sponte review. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (concluding that a pleading that only "tenders naked assertions devoid of further factual enhancement" will not survive sua sponte review) (internal quotations and alterations omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("[A] plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."); Thomas v. Pingotti, No. 9:17-CV-0300 (GTS/DEP), 2017 WL 3913018, at *7 (N.D.N.Y. Sept. 6, 2017) ("Conclusory allegations of disparate treatment or a plaintiff's personal belief of discriminatory intent are patently insufficient to plead a valid claim under the Equal Protection clause.").
Accordingly, plaintiff's equal protection claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
Verbal harassment and name calling, absent physical injury, are not constitutional violations cognizable under Section 1983. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam); Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y. 1998) ("verbal harassment or profanity alone, unaccompanied by any injury no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983") (quotation omitted); see also Rivera v. Goord, 119 F.Supp.2d 327, 342 (S.D.N.Y. 2000) (collecting cases); Baskerville v. Goord, No. 97-CV-6413, 2000 WL 897153, at *3 (S.D.N.Y. July 6, 2000) ("Mere verbal abuse or the use of . . . slurs or epithets reflecting . . . prejudice, although reprehensible, does not form the basis of a claim pursuant to § 1983."). This principle holds true even when the harassment concerns a plaintiff's religion. See, e.g., Hamilton v. Erhardt, No. 10-CV-6234, 2011 WL 3476475, at *4 (W.D.N.Y. Aug. 9, 2011) (holding that verbal taunting does not amount to a constitutional violation "even where such verbal harassment pertains to the plaintiff's race or religion.").
"While under extreme circumstances the Eighth Amendment's prohibition against cruel and unusual punishment may encompass intentionally inflicted psychological injury, necessarily excluded from this protection is conduct causing only de minimis psychological harm." Johnson v. Brown, No. 9:09-CV-0002 (GTS/DEP), 2010 WL 6243352, at *6 (N.D.N.Y. Sept. 3, 2010) (collecting cases), report and recommendation adopted by 2011 WL 1097864 (N.D.N.Y. Mar. 22, 2011).
In this case, the proposed second amended complaint fails to allege facts which plausibly suggest that any of the comments made by any of the named or proposed defendants subjected plaintiff to psychological harm which rises to the level of a constitutional violation. Indeed, plaintiff does not allege that he suffered any injuries as a result of any of the alleged comments.
Accordingly, plaintiff's claims based on verbal harassment are dismissed pursuant to 28 U.S.C. 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
In light of the legal standard governing motions to amend, and defendants' failure to oppose the motion, the Court grants plaintiff's motion to amend to the extent the proposed second amended complaint asserts the following claims: (1) First Amendment free exercise claims against defendants Dupra, Delaney, LaValley and Corrections Officer Stoughton; (2) RLUIPA claims for injunctive and declaratory relief against defendants Dupra, Delaney, LaValley and Corrections Officer Stoughton in their official capacities
