17-119-cv
Jackson v. Marks


                         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
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

    At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New
York, on the 17th day of May, two thousand eighteen.

PRESENT: PIERRE N. LEVAL,
         GERARD E. LYNCH,
         CHRISTOPHER F. DRONEY,
                    Circuit Judges.
________________________________________________

NAHSHON JACKSON,

                        Plaintiff-Appellant,

                   v.                                         No. 17-119-cv

LAWRENCE K. MARKS, TINA M. STANFORD,
JEFF MCKOY, JEFFERY A. HALE,

                        Defendants.
________________________________________________

   FOR PLAINTIFF-APPELLANT:                     MATTEO GODI, Samuel Adkisson, Law
                                                Students, Yale Law School Appellate
                                                Litigation Project, New Haven, CT,

                                                Tadhg Dooley, Benjamin M. Daniels,
                                                Wiggin and Dana LLP, New Haven, CT.
    Appeal from the United States District Court for the Southern District of New York
(McMahon, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court dismissing this action is VACATED,
and the matter is REMANDED for further proceedings consistent with this summary
order.

        NahShon Jackson, a former inmate in the custody of the New York State
Department of Correction and Community Supervision ("DOCCS"),1 alleged in a civil
complaint that he was deprived of approximately half of his weekly meals because they
did not comport with his religious requirements. Jackson is a Rastafarian and adheres to a
religious diet called Ital. Ital prohibits the consumption of meat and preservatives.

       For some period during his incarceration, Jackson was served all of his meals from
the "Cold Alternative Diet," which comported with his religious dietary restrictions. In
October 2015, however, Defendant McKoy, in his role as DOCCS Deputy Commissioner
for Programs, approved a change in Jackson's meal plan, requiring that ten of his twenty-
one weekly meals be served from the "Pilot Hot Kosher Menu." App. 22, 24. According to
Jackson, he could not eat from the "Pilot Hot Kosher Menu" without violating his sincerely
held religious beliefs. Jackson further alleged that he had previously entered into an
agreement with DOCCS that bound him to eat only items that were included in the "Cold
Alternative Diet." Therefore, Jackson could not eat the meals on the "Pilot Hot Kosher
Menu" that did not comport with the "Cold Alternative Diet" or his religion, and thus, he
was effectively denied approximately half of his meals.

        Jackson requested permission to file a complaint in the federal court regarding that
alleged deprivation, along with other claims, in forma pauperis because he could not afford
the district court's filing fee. The district court denied this request, finding that Jackson had
accumulated three "strikes" under 28 U.S.C. § 1915(g) because he had three or more prior
actions dismissed as frivolous or malicious, or for failing to state a claim upon which relief
may be granted. As a result, the district court dismissed this action without prejudice.
Jackson then filed his appeal of that order with this Court. We granted Jackson's motion to
proceed in forma pauperis on the issue of whether his assertion that he was denied proper
meals was sufficient to satisfy the "imminent danger exception" to the "three-strikes"
provision and appointed counsel.

       Jackson argues that he should be excepted from the "three-strikes rule" because he
is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). We review de
novo the district court's ruling on the three-strikes rule. Polanco v. Hopkins, 510 F.3d 152,
155 (2d Cir. 2007). Moreover, we need not make an "overly detailed inquiry into whether
       1
         Plaintiff was released from incarceration in May 2017. His claims for damages may still move
forward, though any claims for declaratory or injunctive relief are now moot. Beyah v. Coughlin, 789
F.2d 986, 988–89 (2d Cir. 1986).

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the allegations qualify for the exception," as the three-strikes rule is merely a threshold
procedural question. Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010). We agree that
Jackson has alleged a sufficiently serious injury to fall under the exception listed in section
1915(g). Jackson alleged that missing approximately half of his weekly meals caused him
to suffer weight loss, stress, and hunger. We have previously held that "a substantial
deprivation of food" can cause serious physical harm sufficient to find cruel and unusual
punishment in violation of the Eighth Amendment. Robles v. Coughlin, 725 F.2d 12, 15
(2d Cir. 1983). Given that the section 1915(g) analysis is a less exacting standard than the
Eighth Amendment analysis, compare Chavis, 618 F.3d at 169, with Phelps v. Kapnolas,
308 F.3d 180, 185 (2d Cir. 2002), we conclude that Jackson's allegations meet the
exception to the three-strikes rule because the allegations of deprivations of food were
prolonged and substantial.

      Jackson's complaint also alleges constitutional violations against Defendants Marks
and Stanford related to Jackson's parole supervision. Although those allegations do not
meet the "imminent danger" exception of § 1915(g), they may proceed on remand. See
Chavis, 618 F.3d at 171–72 (a plaintiff filing in forma pauperis on the basis of the imminent
danger exception may proceed with all claims contained in the complaint even if some do
not meet the exception).

      Accordingly, we VACATE the judgment of the district court dismissing this case,
and REMAND for further proceedings consistent with this summary order.



                                           FOR THE COURT:
                                           Catherine O=Hagan Wolfe, Clerk of Court




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