     11-4186-pr
     Smith v. Artus et al.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                              SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007
     IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
     DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
     TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 4th day of April, two thousand thirteen.
 4
 5            PRESENT: ROBERT D. SACK,
 6                             RAYMOND J. LOHIER, JR.,
 7                                                      Circuit Judges,
                                                       *
 8                             JOHN G. KOELTL,
 9                                                      District Judge.
10            ------------------------------------------------------------------
11
12            AUREL SMITH,
13
14                                             Plaintiff-Appellant,
15
16                                     v.                                          No. 11-4186-pr
17
18            DALE ARTUS, Superintendent, Clinton Correctional
19            Facility, LINDA TURNER, Deputy Superintendent,
20            Clinton Correctional Facility, BRIAN FISCHER,
21            Commissioner of the Department of Correctional
22            Services, KENNETH PERLMAN, Deputy
23            Commissioner of Program Services for the Department
24            of Correctional Services, MARK LEONARD, Director


              *
             The Honorable John G. Koeltl, of the United States District Court for the
     Southern District of New York, sitting by designation.

                                                           1
 1          of Ministerial and Family Services for the Department
 2          of Correctional Services, NORMAN BEZIO, Director
 3          of Special Housing for the Department of Correctional
 4          Services, R. ROCK, Superintendent, Great Meadow
 5          Correctional Facility, KAREN LAPOLT, Deputy
 6          Superintendent of Programs at Great Meadow
 7          Correctional Facility,
 8
 9                                           Defendants-Appellees.
10
11          ------------------------------------------------------------------
12
13          FOR APPELLANT:                   JENNY STAPLETON (Vilia B. Hayes and Sarah L. Cave,
14                                           on the brief), Hughes Hubbard & Reed LLP, New
15                                           York, NY.
16
17          FOR APPELLEES:                   JULIE M. SHERIDAN, Assistant Solicitor General
18                                           (Andrew D. Bing, Deputy Solicitor General, and
19                                           Barbara D. Underwood, Solicitor General, on the
20                                           brief), for Eric T. Schneiderman, Attorney General of
21                                           the State of New York, Albany, NY.
22
23          Appeal from a judgment of the United States District Court for the Northern
24   District of New York (Norman A. Mordue, Judge).
25          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
26   AND DECREED that the judgment of the District Court is VACATED and
27   REMANDED.
28          Plaintiff-appellant Aurel Smith appeals from the District Court’s judgment entered
29   September 30, 2010, dismissing, as relevant here, Smith’s state law claims with prejudice
30   and granting summary judgment for the defendants-appellees on Smith’s claims based on
31   the First Amendment Free Exercise Clause and the Religious Land Use and
32   Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.1 We assume the


            1
              In a previous order dated April 2, 2012, this Court dismissed portions of Smith’s
     appeal relating to his claims for money damages under federal law and his inability to
     attend congregate religious services while incarcerated in the Special Housing Unit of
     Upstate Correctional Facility. The portions of the District Court decision addressing
     those issues remain undisturbed by this order.
                                                         2
 1   parties’ familiarity with the facts and record of the prior proceedings, to which we refer
 2   only as necessary to explain our decision.
 3          The District Court held that Smith’s transfer to a new prison facility rendered moot
 4   his claims for injunctive and declaratory relief under the First Amendment and RLUIPA
 5   based on his former prison facility’s prohibition against performing demonstrative prayer
 6   in the prison recreation yard. On appeal, Smith argues, and the defendants-appellees
 7   agree, that these claims are not moot because (1) Smith is similarly not allowed to engage
 8   in demonstrative prayer at Attica Correctional Facility, where he is currently incarcerated,
 9   and (2) there is a statewide policy banning inmate demonstrative prayer in prison
10   recreation yards during recreation time. In light of this new information, which we
11   recognize was not made available to the District Court, Smith’s injunctive and declaratory
12   relief claims are clearly not moot. See Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per
13   curiam) (“[A] case becomes moot when the issues presented are no longer live or the
14   parties lack a legally cognizable interest in the outcome.” (quotation marks omitted)).
15          Smith also argues that the District Court erred in dismissing his state law claims
16   with prejudice. We agree. In response to the defendants-appellees’ motion for summary
17   judgment, Smith, then acting pro se, filed a handwritten opposition in which he stated:
18   “[P]laintiff withdraws only the following contentions . . . (5) All state-law claims.” Smith
19   did not specify whether he wished to withdraw the claims with or without prejudice. In
20   dismissing with prejudice, the District Court explained that “[t]o the extent that [it] could
21   liberally construe [Smith]’s withdrawal of his claims as a request for a Court Order
22   dismissing those claims without prejudice . . . [it] denies that request based on a finding
23   that a dismissal with prejudice is more appropriate.”2 Although we have recognized a


            2
             Although the District Court analyzed Smith’s request based on Rule 41(a)(2) of
     the Federal Rules of Civil Procedure, a plaintiff's request to withdraw some but not all of
     his claims is properly considered as an amendment to the pleadings based on Rule
     15(a)(2). Nevertheless, as we have explained in the past, requests to withdraw only some
                                                   3
 1   district judge's authority to “convert a dismissal sought to be entered without prejudice to
 2   one with prejudice,” we have also made plain our view that “fundamental fairness
 3   requires . . . afford[ing] the plaintiff an opportunity to withdraw his motion and proceed
 4   with the litigation in the event that a district judge proposes to [do so].” Gravatt v.
 5   Columbia Univ., 845 F.2d 54, 56 (2d Cir. 1988). The District Court erred by failing to
 6   give Smith this opportunity.
 7          The District Court’s analysis of Smith’s request was problematic in other respects
 8   as well. The District Court rested its decision on its findings that (1) the defendants had
 9   expended time and effort in filing a motion for summary judgment requesting the
10   dismissal of the state law claims, and (2) the state law claims lacked merit. But the
11   defendants’ response to the state law claims was minimal; their 37-page memorandum of
12   law in support of summary judgment referred to the state law claims in a single paragraph
13   and argued only that violation of state law could not form the basis of a claim under 42
14   U.S.C. § 1983, rather than addressing the state law claims as freestanding claims. In its
15   independent review of the merits of the state law claims, the District Court too addressed
16   only whether the state law claims could properly form the basis of a Section 1983 claim.
17   Elsewhere in its decision, however, the District Court acknowledged that New York law
18   was unclear on the issue of prohibiting demonstrative prayer in the recreation yard,
19   suggesting that it had not determined that the state law claims lacked merit as
20   freestanding claims.
21          Finally, by resting its decision exclusively on these two grounds, the District Court
22   failed to apply all of the factors set out in Zagano v. Fordham University, 900 F.2d 12 (2d
23   Cir. 1990), which are to be considered when determining whether to grant a motion for
24   voluntary dismissal without prejudice. They include “the plaintiff's diligence in bringing



     claims and requests to withdraw an entire action are subject to the same standard. See
     Wakefield v. N. Telecom, Inc., 769 F.2d 109, 114 n.4 (2d Cir. 1985).
                                                   4
 1   the motion; any ‘undue vexatiousness’ on plaintiff’s part; the extent to which the suit has
 2   progressed, including the defendant’s effort and expense in preparation for trial; the
 3   duplicative expense of relitigation; and the adequacy of plaintiff’s explanation for the
 4   need to dismiss.” Id. at 14. Because Smith did not explain in his pro se submission why
 5   he wished to withdraw his claims, and because the District Court did not seek
 6   clarification, the District Court likely lacked the information necessary to conduct a full
 7   analysis under Zagano.
 8          We therefore vacate that part of the judgment dismissing Smith’s state law claims
 9   with prejudice and remand with instructions to grant Smith the opportunity to renew his
10   request as to the state law claims and to explain why the factors enumerated in Zagano
11   favor granting a motion to dismiss without prejudice. Smith should also be given the
12   opportunity to withdraw his request to dismiss the state law claims.
13          For the foregoing reasons, the judgment of the District Court is VACATED in
14   part, insofar as it dismissed as moot Smith’s claims for declaratory and injunctive relief
15   related to engaging in demonstrative prayer in prison recreation yards under the First
16   Amendment Free Exercise Clause and RLUIPA, and VACATED in part, insofar as it
17   dismissed Smith’s state law claims with prejudice, and REMANDED with instructions to
18   permit Smith to renew his request for dismissal of his state law claims without prejudice
19   or to withdraw his request to dismiss those claims.
20

21                                              FOR THE COURT:
22                                              Catherine O’Hagan Wolfe, Clerk of Court
23




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