UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOSHUA SCHWARTZ, JENNIFER GREENBERG and :
BENJAMIN PERSKY, Plaintiffs,
-against-
MARTIN F. HORN, Commissioner of the New York City :
Department of Correction, Defendant. :
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Plaintiffs Joshua Schwartz, Jennifer Greenberg and Benjamin Persky by their attorneys, Egert & Trakinski, allege as follows:
INTRODUCTION
1. This is an action for declaratory and injunctive relief arising under 42 U.S.C. §1983 to enjoin defendant from preventing plaintiffs from exercising their sincerely held ethical, moral and religious beliefs while in the custody of the New York City Department of Correction (“DOC”). Defendant is violating plaintiffs’ rights granted under the Free Exercise Clause of the First Amendment to the Constitution of the United States and Article I, Section 8 of the New York State Constitution by failing to provide vegan food for ethical, moral and religious purposes thereby denying plaintiffs’ rights to freely exercise their sincerely held beliefs. Furthermore, defendant is violating plaintiffs’ rights to Equal Protection and Due Process pursuant to the Fourteenth Amendment to the Constitution of the United States.
Plaintiffs also allege that defendantÂ’s actions have deprived, and continue to deprive, plaintiffs of their right to free exercise of religion as protected under the Religious Land Use and Institutionalized Persons Act of 2000, by unlawfully imposing a substantial burden on plaintiffsÂ’ religious exercise. Moreover, defendantÂ’s arbitrary and malicious acts have prevented plaintiffs from practicing their sincerely held ethical, moral and religious beliefs, thereby causing severe and continuing physical, psychological and emotional harm.
JURISDICTION
2. This Court has jurisdiction pursuant to Section 1331 of the Judicial Code (28 U.S.C.A. § 1331) as this is a civil action arising under the Constitution of the United States.
3. This Court has jurisdiction pursuant to 28 U.S.C.§ 1343(a)(3) as this action seeks to remedy deprivations, under color of law, of plaintiffs’ rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and applicable federal laws.
4. This Court has jurisdiction as plaintiffs’ claims are based upon 42 U.S.C. § 1983 which authorizes actions to redress the deprivation, under color of state law, of rights, privileges and immunities secured to plaintiffs by the Constitution of the United States.
5. Plaintiffs’ claims are also predicated on the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc which permits actions against persons deprived of the free exercise of religion.
6. Plaintiffs’ claims for declaratory relief and compensatory damages are sought under 28 U.S.C. §§ 2201 and 2202.
7. Plaintiffs seek permanent injunctive relief pursuant to Rule 65 of the Federal
Rules of Civil Procedure.
8. Plaintiffs’ claims for attorney fees and costs are predicated upon 42 U.S.C. §1988 which authorizes the award of attorneys’ fees and costs to prevailing parties pursuant to 42 U.S.C. §1983.
VENUE
9. Venue is conferred by 28 U.S.C.§ 1391(b) and as defendant and DOC’s main offices are located in New York, New York and a substantial part of the events giving rise to this claim occurred in New York, New York.
PARTIES
10. Plaintiff Joshua Schwartz, inmate identification number 3100201611, is currently incarcerated at the Eric M. Taylor Center (EMTC), a DOC facility on Rikers Island, 10-10 Hazen Street, East Elmhurst, New York.
11. Plaintiff Jennifer Greenberg, inmate identification number 3100201610, is currently incarcerated at the Rose M. Singer Center (RMSC), a DOC facility on Rikers Island, 19-19 Hazen Street, East Elmhurst, New York.
12. Plaintiff, Benjamin Persky, inmate number 1410212600, is currently incarcerated at the George R. Vienero Center (GRVC), a DOC facility on Rikers Island, 09-09 Hazen Street, East Elmhurst, New York.
13. Defendant, Martin F. Horn, is currently Commissioner of the New York City Department of Correction and is named in both his official and individual capacity. The DOC is located at 60 Hudson Street, New York, New York.
PLAINTIFFSÂ’ BELIEFS
14. Plaintiffs Schwartz and Persky were born Jewish. Plaintiff Greenberg has been raised in the traditions of Judaism for the past two years.
15. Animal-based diets, especially in light of modern-day factory farms, are in conflict with Jewish mandates to preserve human health, attend to the welfare of animals, protect the environment, conserve resources, help feed the hungry and pursue peace.
16. Plaintiffs Joshua Schwartz, Jennifer Greenberg and Benjamin Persky each hold sincere beliefs in non-violence toward all sentient beings. Pursuant to their beliefs, Plaintiffs follow a vegan diet, abstaining from consuming, meat, dairy, eggs and other animal by-products.
17. Plaintiffs are opposed to current methods of animal agriculture which include
raising animals in intensive confinement systems which prevent them from performing even their most basic natural functions, such as stretching or turning, as well as barbaric slaughter practices which expose fully conscious animals to skinning, scalding and dismemberment.
18. Plaintiffs believe that animals are violently and unnecessarily killed to supply food and other consumer products and that under the tenets of Judaism, it is morally and ethically wrong to contribute to this suffering by eating animals or otherwise exploiting them.
19. Plaintiffs believe that consistent with their beliefs in non-violence they must refrain from consuming meat and other animal by-products.
REQUEST FOR VEGAN MEALS
20. All plaintiffs requested vegan meals from the DOC, its officers, employees or agents.
21. Plaintiffs, or plaintiffsÂ’ representatives notified DOC that their requests for vegan
meals were based on moral, ethical and religious grounds. All of plaintiffsÂ’ requests for vegan meals were denied.
22. Various appeals were made to the DOC on behalf of plaintiffs, however the DOC rejected them all.
23. Defendant maintains that the DOC is not obligated to provide vegan or even vegetarian meals to any inmates and, moreover, the DOC has a policy of not providing vegetarian meals.
24. Each plaintiff has suffered negative health consequences as a result of not being provided nutritionally adequate meals free of meat, dairy, eggs and other animal products.
25. The DOC meals supplied to plaintiffs are nutritionally inadequate to maintain proper health.
JOSHUA SCHWARTZ
26. On or about November 21, 2002, Schwartz informed correction officers of his moral, ethical and religious beliefs and requested a vegan diet. He was informed that any request for a special diet must be approved by the DOCÂ’s Nutritional Service Department.
27. Schwartz submitted a “Diet Prescription Request” to the dietician in or about November 2002. Such request was denied and a “no vegetarian diet” policy was indicated as the reason (see DOC Diet Prescription Request attached hereto as Exhibit A). When Schwartz made further requests, DOC officers replied that there was nothing that could be done about the policy.
28. Over the course of the next several months, Schwartz again requested vegan meals citing, in addition to his ethical beliefs, medical reasons. Since infancy, Schwartz has suffered from chronic asthma, the symptoms of which are significantly alleviated by adherence to a vegan diet.
29. In addition to requests made to correctionÂ’s officers, captains, dieticians and doctors, Schwartz has consulted with a Rabbi on Rikers Island in an effort to obtain a nutritionally adequate vegan diet.
30. Counsel for Schwartz submitted a written request to the DOC on or about January 14, 2003. This appeal was verbally denied by the DOC legal department (see facsimile dated January 14, 2003 to Michael Pochia from Leonard Egert and Amy Trakinski attached hereto as Exhibit B).
31. On or about April 11, 2003, counsel for Schwartz again appealed DOCÂ’s refusal to supply vegan food to Schwartz citing his sincere spiritual and ethical beliefs in non-violence and the fact that refraining from all animal products was part of his practice of Judaism (see letter dated April 11, 2003 to Martin F. Horn from Leonard Egert and Amy Trakinski attached hereto as Exhibit C).
32. DOC rejected this appeal on or about May 1, 2003. DOC did not question the sincerity of SchwartzÂ’s beliefs nor did it provide specific reasons for its continual denial of SchwartzÂ’s request, but simply stated that DOC was not obligated to provide the requested diet (see letter dated May 1, 2003 to Leonard Egert and Amy Trakinski from Martin F. Horn attached hereto as Exhibit D).
33. DOC was informed that its continued refusal to provide a nutritionally adequate diet in conformity with SchwartzÂ’s religious beliefs was causing him to suffer negative health effects.
34. Schwartz has visited the health clinic no fewer than five times with asthma related illnesses, a severe fever with temperatures exceeding 103 degrees and has experienced weight loss, colds, chronic coughing and fatigue.
JENNIFER GREENBERG
35. Shortly after being placed into DOC custody in or about November 2002, Greenberg requested a vegan diet from correction officers and the captain in charge of her area.
36. Greenberg informed DOC personnel and the Rabbi on staff of her sincerely held beliefs regarding non-violence and reiterated her request for vegan food.
37. Greenberg was informed that the DOC does not provide either vegan or vegetarian meals. These requests and further requests for vegan meals were subsequently denied. 38. In or about April 2003, a Massachusetts attorney representing Greenberg on an unrelated matter, appealed to the Warden of RMSC requesting a modification of GreenbergÂ’s diet (see letter dated April 1, 2003 to Wayne Lamont from Derege Demissie attached hereto as Exhibit E).
39. DOC responded by ordering a physical examination of Greenberg and sending her to the dietician. The dietician informed Greenberg that there were no vegetarian meals offered at the RMSC facility.
40. On or about April 11, 2003, present counsel for Greenberg filed a more detailed appeal with defendant which explained that Greenberg held sincere moral, ethical and religious beliefs in non-violence and that she believes that non-human animals “are violently and unnecessarily exploited to supply” food and clothing products (see Exhibit C, page 2).
41. DOC was further placed on notice that GreenbergÂ’s abstention from consuming and using animal products is part of her practice of Judaism (see Exhibit C, page 2).
42. DOC was made aware that its continued refusal to provide a nutritionally adequate diet in conformity with GreenbergÂ’s ethical, moral and religious beliefs was causing her to suffer negative health effects (see Exhibit C, page 2).
43. DOC rejected this appeal on or about May 1, 2003. DOC did not question the sincerity of GreenbergÂ’s beliefs nor did it provide specific reasons for its continual denial of GreenbergÂ’s request, but simple stated that DOC was not obligated to provide the requested diet (see Exhibit D).
44. Greenberg has suffered, and continues to suffer ill heath effects as a direct result of DOCÂ’s failure to provide her with an acceptable and nutritionally adequate vegan. These negative health effects include chronic fatigue, aching joints and muscles, and potential malnutrition.
BENJAMIN PERSKY
45. Shortly after his incarceration in or about July 2002, Persky requested a vegan diet from CorrectionÂ’s officers and other DOC personnel based on his moral, ethical and religious beliefs.
45. Persky was informed that since he did not have a “medically diagnosable condition,” he could not obtain a special diet.
46. Persky was further informed by DOC representatives that vegetarian diets were not offered.
47. Several DOC doctors examined Persky and Persky informed them which foods
he could and could not eat and which foods DOC was offering. Persky repeatedly told DOC doctors and correction officers that they were required to provide him with a nutritionally adequate diet in conformance with his moral, ethical, and religious beliefs.
48. After repeated requests, Persky was finally allowed to see DOC dietician, Celia Petit. Persky informed Petit which foods he could eat and which foods he was actually being offered.
49. Persky informed the dietician that some meals only provided an ounce or two of boiled vegetables and that there were many occasions when the meals offered did not include anything that he could eat.
50. The dietician suggested that Persky take a blood test to which he submitted. Afterward, Persky repeatedly asked for the results of his blood test and for a follow-up visit with the dietician. The dietician would neither meet with Persky nor provide him with the blood test results.
51. Persky filed a grievance which did not result in any adequate change in the meals provided.
52. Many individuals contacted the warden and the facility on PerskyÂ’s behalf requesting that he be provided with vegan meals.
53. Neal D. Barnard, M.D., President of Physicians Committee for Responsible Medicine wrote to prison authorities to request vegan meals on PerskyÂ’s behalf, including suggestions for a nutritionally balanced and easy to prepare food plan (see letter dated August 1, 2002 to Ms. Williams from Neal D. Barnard, M.D., attached hereto as EXHIBIT F).
54. An attorney from People for the Ethical Treatment of Animals wrote to then DOC Commissioner William Fraser on August 22, 2002, explaining the basis for PerskyÂ’s strong ethical and moral beliefs which required that Persky live as a vegan and requested that he be provided with vegan food (see letter dated August 22, 2002 to William J. Fraser from Mathew Penzer, attached hereto as Exhibit G).
55. PerskyÂ’s current counsel, on or about April 11, 2003, demanded that Persky be provided with vegan meals based on his sincere ethical, moral and religious beliefs. This demand was rejected by the DOC (see Exhibits C and D).
56. All demands on behalf of Persky for vegan meals were ignored by DOC.
57. The DOC did not question the sincerity of PerskyÂ’s beliefs nor did it provide specific reasons for its continued denial of PerskyÂ’s dietary requests, but simply stated that DOC was not obligated to provide the requested diet (see Exhibit D).
58. The nutritionally inadequate diet being offered to Persky has caused him to suffer from malnutrition, fatigue, weight loss, and most likely anemia.
COUNT ONE
(Violation of the United States Constitution First and Fourteenth Amendment and New York State Constitution Article I, Section 8; Free Exercise of Religion)
59. Plaintiffs repeat each and every allegation contained in paragraphs 1 through 58, as if fully set forth herein.
60. Defendant’s refusal to provide plaintiffs with a vegan diet prevents plaintiffs from adhering to their sincerely held moral, ethical and religious beliefs. Defendant thereby denies plaintiffs the right to free exercise of religion under the First Amendment to the Constitution of the United States, as applied to the State and City of New York by the Fourteenth Amendment to the Constitution of the United States and Article I, Section 8 of the New York State Constitution. Defendant’s actions and policies undertaken pursuant to the rules, regulations and practices of the New York City Department of Correction are, therefore, unconstitutional and unlawful pursuant to 42 U.S.C.§ 1983.
COUNT TWO
(Violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States; 42 U.S.C. § 1983)
61. Plaintiffs repeat each and every allegation contained in paragraphs 1 through 60, as if fully set forth herein.
62. DefendantÂ’s refusal to provide plaintiffs with a vegan diet, despite plaintiffsÂ’ sincerely held moral, ethical and religious beliefs, denies plaintiffsÂ’ their guaranteed rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.
63. Such deprivation of Due Process by an agency of a political subdivision of the State by application of DOC rules, regulations and practices are unconstitutional and unlawful pursuant to 42 U.S.C. §1983.
COUNT THREE
(Violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States; 42 U.S.C. § 1983)
64. Plaintiffs repeat each and every allegation contained in paragraphs 1 through 63, as if fully set forth herein.
65. Defendant has refused, and continues to refuse, plaintiffsÂ’ requests for vegan meals or an acceptable alternative in accordance with plaintiffsÂ’ sincerely held ethical, moral and religious beliefs.
66. Upon information and belief, defendant provides other inmates with special religious dietary requirements, including Kosher and Halal meals for other Jewish and Muslim inmates.
67. Upon information and belief, defendant supplies other inmates special diets that are low in fat, sodium and cholosterol or high in calories.
68. Defendant’s denial of plaintiffs’ right to freely exercise their sincerely held moral, ethical and religious beliefs constitutes an impermissible burden on plaintiffs’ First Amendment rights, and discriminates against plaintiffs’ beliefs. Such discrimination on the basis of plaintiffs’ moral, ethical and religious beliefs by an agency of a political subdivision of the State violates plaintiffs’ Equal Protection rights under the Fourteenth Amendment to the Constitution of the United States. Defendant’s actions and policies undertaken pursuant to the rules, regulations and practices of the New York City Department of Correction are, therefore, unconstitutional and unlawful pursuant to 42 U.S.C. §1983.
COUNT FOUR
(Violation of the Religious Land Use and Institutionalized Persons Act of 2000; “Substantial Burden of Religious Exercise” 42 U.S.C. § 2000cc)
69. Plaintiff repeats each and every allegation contained in paragraphs 1 through 68, as if fully set forth herein.
70. Defendant’s refusal to provide plaintiffs vegan meals, despite plaintiffs’ sincerely held ethical, moral and religious beliefs, constitutes a substantial burden on plaintiffs’ exercise of religion under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.§ 2000cc.
71. Defendant has deprived, and continues to deprive, plaintiffs of their rights to free exercise of religion by unlawfully imposing a substantial burden on plaintiffsÂ’ religious exercise.
72. On information and belief, the substantial burden defendant has imposed on plaintiffsÂ’ religious exercise is imposed in a program or activity that receives federal financial assistance.
73. The substantial burden defendant has imposed on plaintiffsÂ’ religious exercise affects, or the removal of that substantial burden would affect, commerce with foreign nations or among the several States.
WHEREFORE, plaintiffs respectfully request that this Court grant the following relief:
A. A declaration that defendantÂ’s failure to provide plaintiffs with nutritionally sufficient vegan diets, as required by plaintiffsÂ’ sincerely held moral, ethical and religious beliefs, is in violation of the Free Exercise Clause, Equal Protection and Due Process Clauses of the First and Fourteenth Amendments to the Constitution of the United States and Article I, Section 8 of the New York State Constitution;
B. A declaration that the New York City Department of Correction policy of “No Vegetarian Diets” is in violation of the Free Exercise Clause, Equal Protection and Due Process Clauses of the First and Fourteenth Amendments to the Constitution of the United States and Article I, Section 8 of the New York State Constitution;
C. A declaration that defendant’s failure to provide plaintiffs with nutritionally sufficient vegan diets, as required by plaintiffs’ sincerely held moral, ethical and religious beliefs, is in violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.§ 2000cc;
D. A declaration that the New York City Department of Correction policy of “No Vegetarian Diets” is in violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.§ 2000cc;
E. A preliminary and permanent injunction requiring defendant, his agents, servants and employees, to provide plaintiffs and similarly situated inmates in the custody of defendant a nutritionally sufficient vegan diet;
F. Award plaintiffs monetary damages for defendantÂ’s deprivation of plaintiffsÂ’ First and Fourteenth Amendment rights as they may prove at trial, or at a minimum, nominal damages;
G. Award plaintiffs the full costs and attorneysÂ’ fees arising out of this action;
H. Such other and further relief as this Court may deem just and appropriate.
DEMAND FOR JURY
Pursuant to Rule 38(f) of the Federal Rules of Civil Procedure, plaintiffs hereby demand a trial by jury in this action of all the issues so triable.
Dated: New York, New York
July 2, 2003
EGERT & TRAKINSKI
By: _________________________
Leonard Egert
Amy Trakinski
Attorneys for Plaintiffs
165 West 91 Street, #16B
New York, New York 10024
Telephone: (212) 334-6858
Facsimile: (212) 579-7315