NINA Y. WANG, Magistrate Judge.
This civil action comes before the court on Defendant Steven Woitte's ("Defendant" or "Mr. Woitte") Motion to Dismiss Plaintiff's Amended Complaint ("Motion to Dismiss"). [#45, filed April 2, 2018]. This matter was referred to the undersigned Magistrate Judge pursuant to the Order Referring Case dated January 11, 2018, [#12], and the memorandum dated April 3, 2018, [#46]. This court has reviewed the Motion to Dismiss and associated briefing, the case record, and the applicable case law, and for the reasons set forth below respectfully
Plaintiff Milton Weinstein ("Plaintiff" or "Mr. Weinstein") initiated this action on October 16, 2017, by filing a pro se Prisoner Complaint pursuant to 42 U.S.C. § 1983 claiming he had been denied a kosher diet. See generally [#1]. Mr. Weinstein was within the custody of the Larimer County Sheriff and was housed at the Larimer County Detention Facility ("LCDF") in Fort Collins at the time he filed his Complaint. The court granted Mr. Weinstein leave to proceed in forma pauperis under 28 U.S.C 1915, [#6], and, pursuant to that statute, ordered him to file an amended pleading. See [#7]. Mr. Weinstein subsequently filed an Amended Complaint asserting one claim for violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). [#10].
In his Amended Complaint, Mr. Weinstein named as defendants Mr. Woitte, food service director and representative of Airmark,
On April 2, 2018, Mr. Woitte filed the pending Motion to Dismiss, arguing that he is not a state actor and that monetary damages are not available under RLUIPA. See [#45]. Two days later, this court held a Status Conference at which the undersigned discussed, among other things, the filing of Defendant's Motion to Dismiss, Plaintiff's new mailing address, and the indication on the docket that the U.S. Marshal Service had been unable to locate and serve C.O. Dumell and Bret Richard. See [#51]. Plaintiff did not object to the dismissal of Dumell and Richard, and the court memorialized the voluntary dismissal under Federal Rule of Civil Procedure 41(a) in a subsequently issued Minute Order. See [#52].
Plaintiff did not respond to the Motion to Dismiss, and review of the docket dating from the Status Conference, at which time Mr. Weinstein provided the court with an updated address, does not reveal that any mail has been returned as undeliverable. In addition, during the Status Conference, the court specifically discussed the instant Motion with Plaintiff and advised him that his response was due no later than May 2, 2018. The Motion is ripe for resolution, see Local Rule 7.1(d), and the court addresses Defendant's arguments below.
Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-plead factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility refers to the "scope of the allegations in a complaint: if they are so general that they encompass wide swath of conduct, much of it innocent, then the plaintiffs `have not nudged their claims across the line from conceivable to plausible.'" Oklahoma v. Robbins, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). "The burden is on the plaintiff to frame a `complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Oklahoma 519 F. 3d at 1247 (quoting Bell Atlantic Corp. 127 S.Ct. at 1965). When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court "must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal proposed theory." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Mr. Weinstein is appearing pro se, and thus the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standard than formal pleadings drafted by lawyers"). However, the court's role is not to act as the Plaintiff's advocate. Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). In this District, failure to respond to a motion to dismiss is not deemed as consent to its entry. Gatrell v. City & Cty. of Denver, No. 10-CV-02311-REB-KLM, 2012 WL 219434, at *1 (D. Colo. Jan. 23, 2012). In any event, when dealing with a pro se plaintiff, the Tenth Circuit has stated its preference for resolution of the substance of a motion to dismiss despite the pro se plaintiff's failure to respond. Id. (citing Persik v. Manpower, Inc., 85 F. App'x 127, 130 (10th Cir.2003) (unpublished decision)), report and recommendation adopted, No. 10-CV-02311-REB-KLM, 2012 WL 592889 (D. Colo. Feb. 22, 2012).
As discussed above, Mr. Weinstein's sole claim arises under RLUIPA. The purpose of RLUIPA is to "protect[] institutionalized persons who are unable freely to attend their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). RLUIPA provides in relevant part that:
42 U.S.C § 2000cc-1(a).
Defendant argues first that the claim fails because Plaintiff does not allege that he acted under the color of state law or at the behest of the State. [#45 at 2]. Defendant also argues that the claim fails because he is sued in his individual capacity and because monetary damages are not available as redress under RLUIPA. [Id. at 3]. This court addresses first the arguments regarding capacity and monetary damages.
Plaintiff does not specify whether he sues Mr. Woitte in his individual capacity, official capacity, or both. See [#10]. Defendant contends he is sued in his individual capacity and for support cites pages of the Amended Complaint, presumably for the absence of language demonstrating an official capacity suit. See [#45 at 3, 6 (citing #10 at 1, 2, 3, 5, 8, 13)]. To the extent Plaintiff sued Mr. Woitte in his individual capacity, such claim cannot proceed under RLUIPA. Stewart v. Beach, 701 F.3d at 1334.
However, despite Defendant's arguments to the contrary, it is not at all clear that Plaintiff sues Defendant in his individual capacity only. As Defendant notes in his Motion, when asked whether each Defendant was "acting under the color of state law," Mr. Weinstein checks "no." See [#10 at 2]. With respect to Defendant Woitte, Mr. Weinstein notes that he was "not allowing me to have a certified kosher diet `approved kosher diet' from an outside serce." [Id.]. However, in other sections of the Amended Complaint, Plaintiff states that the "jail" failed to serve him a Kosher diet, [id. at 3], and he appears to refer to Defendant and the former co-defendants and the "jail" interchangeably. See [id. at 4 ("After asking the jail several times to show me who certifies these kosher diets they were unable to provide proff stating in fact that these were in fact `certified kosher' diets.")]. Simply put, it is not clear that Plaintiff understands the meaning of "acting under the color of state law," and the court is required to liberally construe a pro se litigant's pleadings. Accordingly, this court construes Mr. Weinstein's Amended Complaint as pleading a claim against Defendant Woitte in his individual and official capacities.
The matter of whether RLUIPA provides for monetary damages is more nuanced than Defendant suggests. In a 2011 decision, the Supreme Court resolved a split of authority amongst the circuits regarding whether the phrase "appropriate relief" as used in RLUIPA encompasses monetary damages. See Sossamon v. Texas, 563 U.S. 277, 292-93, 131 S.Ct. 1651 (2011) (abrogating Smith v. Allen, 502 F.3d 1255, 1270 (11th Cir. 2007) (concluding that the phrase "appropriate relief" in section 3 of RLUIPA, was "broad enough to encompass the right to monetary damages," thus disagreeing with Boles v. Neet, 402 F.Supp.2d 1237, 1241 (D. Colo. 2005) and similar cases that had found that monetary damages are not available under RLUIPA)). However, the Supreme Court limited its ruling as follows: "We conclude that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA because no statute expressly and unequivocally includes such a waiver." Id. at 293. Accordingly, money damages are not available to plaintiffs suing states, or state employees in their official capacity, under RLUIPA.
But, it is not clear that State sovereign immunity applies to Mr. Woitte to bar monetary damages under RLUIPA, because to the extent he acted at the behest of a governmental entity, the entity would be a county and not a state. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900 (1997) ("It has long been settled that the reference to actions `against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities," and "when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit. . ."). "[T]he question whether a particular state agency has the same kind of independent status as a county or is instead an arm of the State, and therefore `one of the United States' within the meaning of the Eleventh Amendment, is a question of federal law," which can be answered "only after considering the provisions of state law that define the agency's character." Id. at 430, n.5. Defendant did not argue application of Eleventh Amendment immunity, and the court declines to raise it sua sponte at this time. See U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (observing that "a court may raise the issue of Eleventh-Amendment immunity sua sponte but, unlike subject-matter jurisdiction, it is not obligated to do so") (citations omitted). Accord Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 394 (1998) (Kennedy, J., concurring) (citing Patsy v. Board of Regents of Fla., 457 U.S. 496, 515, n.19 (1982)).
Since Sossamon, at least one other court in this District has found that nominal monetary damages were available to a plaintiff who claimed a RLUIPA violation while held in custody at LCDF. See Woodstock v. Shaffer, No. 15-cv-00041-REB-KMT, 2015 WL 13614123, at *4-5 (D. Colo. Sept. 24, 2015) ("Defendants have provided the court with no law, and the court has not found any, regarding the unavailability of money damages under RLUIPA in a suit against a county defendant sued in his or her official capacity"), adopted by 2016 WL 183633 (D. Colo. Jan. 14, 2016), clarified by 2016 WL 369559 (D. Colo. Feb. 1, 2016). See also Woodstock v. Shaffer, No. 15-cv-00041-REB-KMT, 2016 WL 8737190, at *1 n.1 (D. Colo. Feb. 5, 2016) (summarizing that nominal and punitive damages under RLUIPA remained), adopted by 169 F.Supp.3d 1169 (D. Colo. 2016). But see Said v. Teller Cty., No. 14-CV-02745-RPM, 2015 WL 1598098, at *5 (D. Colo. Apr. 9, 2015). Other circuits that have considered the issue after Sossaman have found that money damages are available under RLUIPA against political subdivisions of the states, such as municipalities and counties. See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 290 (5th Cir. 2012); Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1168-69 (9th Cir. 2011) (holding that municipalities and counties may be liable for money damages under RLUIPA); Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 260-61 (3d Cir. 2007) (same); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280-81, 97 S.Ct. 568 (1977) (recognizing that political subdivisions of states do not enjoy Eleventh Amendment immunity).
Amidst facts very similar to the ones presented here, the Woodstock court found that the Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e(a), operated to limit the plaintiff to nominal damages where he had not alleged any injury as a result of the claimed RLUIPA violation. The PLRA states, in pertinent part, "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). However, the PLRA does not bar recovery of nominal damages where no physical injury is alleged. See Searles v. Van Bebber, 251 F.3d 869, 878-79, 880-881 (10th Cir. 2001) (nominal and punitive damages available absent a showing of actual injury). As with the plaintiff in Woodstock, Mr. Weinstein does not allege any physical injury attendant to the claimed RLUIPA violation. See [#10]. Thus, reserving the issue of sovereign immunity, should Plaintiff establish a violation of RLUIPA, he would be entitled to nominal damages only. With this in mind, the court turns to Mr. Woitte's argument that Plaintiff fails to allege he acted at the behest of a governmental entity.
The relevant test for state action asks whether there is "such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014) (quoting Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295, 121 S.Ct. 924, 930 (2001)) (citation and internal quotation marks omitted). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Woodstock, 169 F. Supp. 3d at 1171 (quoting West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255 (1988)) (citation and internal quotation marks omitted). See also Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786 (1982) ("The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.").
Defendant argues that "Plaintiff has not alleged that Defendant Woitte acted under the color of state law, or that he was otherwise acting at the behest of the State," and that Defendant acted only "in the course of his private employment with Aramark." [#45 at 2, 5]. For support, Defendant cites Strope v. Cline, No. 07-3254-SAC, 2010 U.S. Dist. LEXIS 144521, at *8, *13 (D. Kan. Mar. 18, 2010), which granted a Rule 12(b)(6) motion to dismiss a RLUIPA claim in favor of a kitchen line supervisor and kitchen manager who were employed by Aramark Correctional Services, LLC on the basis that those defendants were employees of a private corporation and not state employees. However, I find the reasoning in the Woodstock case more persuasive for the purposes of this Recommendation.
In Woodstock, in recognizing that prisoners have a constitutional right to a diet conforming to their religious beliefs, see Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002), the Magistrate Judge observed that the defendant's role as food service director at the jail was based on a government contract to provide services that the governmental entity was constitutionally obligated to provide. Woodstock, 2016 WL 8737190 at *3. The Woodstock court distinguished Strope on the basis that Strope relied in part on Blum v. Yaretsky, 457 U.S. at 993, which involved a "class of Medicaid patients challenging decisions by the nursing homes in which they reside[d] to discharge or transfer patients without notice or an opportunity for a hearing," and observed that a private nursing home was materially different from a correctional facility, "where the state is responsible for providing needed services, such as food and medical care, to inmates." 2016 WL 8737190 at *2. The Woodstock court found greater analogous circumstances in West v. Atkins, where, in the context of a prison, the Supreme Court held that a physician under contract with the state to provide essential medical services to state prisoners was "acting under color of state law for purposes of § 1983 . . . [and that] such conduct is fairly attributable to the State." Id. at *3 (quoting West, 487 U.S. at 54). See Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1456 n.3 (10th Cir. 1995) (observing that the Atkins court did not expressly undertake any of the four state action inquiries recognized in the Tenth Circuit, "but instead concluded that the physician was clothed with the authority of state law," and that he was "a person who may fairly be said to be a state actor," reasoning that "[c]ontracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights.") (citations and internal quotation marks omitted). See also 1 Martin A. Schwartz, Section 1983 Litigation: Claims & Defenses § 5.6, at 262 (4th ed. 2018) (concluding that the holding of Atkins is based upon "a unique coalescing of factors, namely, (1) the provision of services, pursuant to state contract, which the state is constitutionally obligated to provide, (2) in a state facility, (3) to individuals having no other access to those services, and (4) under the heavy influence of state authority").
In adopting the Magistrate Judge's recommendation in Woodstock, the court agreed that Aramark is a governmental actor, based on the fact that the county jail had "delegated its constitutional responsibility to provide adequate nutrition that complies with prisoners' religious requirements," and found support for its decision in the "overwhelming majority of federal courts" that had similarly concluded that Aramark is a governmental actor when acting in such a capacity. Woodstock, 169 F. Supp. 3d at 1170 (collecting cases, and observing that, with the exception of two cases, "every case this court has located confirms that employees of a private corporation which provides services traditionally provided by the state may themselves be liable for putative constitutional violations").
I agree with the reasoning set forth in Woodstock, and consider Plaintiff's allegations with respect to whether there is "such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brokers' Choice of America, Inc., 757 F.3d at 1143. Plaintiff asserts that he is Jewish and alleges that Defendant worked for Aramark as the Food Service Director, was responsible for ordering and preparing the food served at LCDF, was responsible for ensuring that food was certified as Kosher, and that he denied Plaintiff a Kosher diet and served hot food on the Sabbath, in contravention of the teachings of Plaintiff's faith. See generally [#10]. I find that this is sufficient to state a claim against Defendant Woitte in his official capacity for violation of RLUIPA, and therefore recommend that the Motion to Dismiss be denied. Cf. Ackridge v. Aramark Corr. Food Servs., No. 16-CV-6301 (KMK), 2018 WL 1626175, at *8 (S.D.N.Y. Mar. 30, 2018) (holding that Aramark was acting under color of state law when providing food service in a county detention facility); Dotson v. Shelby Cty., No. 13-2766-JDT-TMP, 2014 WL 3530820, at *13 (W.D. Tenn. July 15, 2014) (collecting cases finding Aramark to be a government actor for food service provided in detention facilities).
For the reasons stated herein, this court respectfully
Additionally,
1. A Status Conference is set for
2. The Parties should be prepared at that time to discuss pretrial scheduling and discovery in this case; and
Greg L. Gatrell, Massillon, OH, pro se.
Stuart L. Shapiro, Denver City Attorney's Office, Denver, CO, for Defendants.
KRISTEN L. MIX, United States Magistrate Judge.
Plaintiff filed an Amended Complaint pursuant to 42 U.S.C. § 1983 on October 29, 2010, which is the presently governing pleading. [# 6]. In an Order issued July 8, 2011, the District Judge adopted the two previouslyissued Recommendations [49, 51], and dismissed certain claims and defendants from the Amended Complaint. Ord., [# 52]. Remaining before the Court are Plaintiff's First Claim for Relief against Defendant City and County of Denver ("Denver') and Defendant John Doe # 1, and Fifth Claim for Relief against Defendant John Doe # 2. In his First Claim for Relief, Plaintiff asserts that Defendant Denver's policies regarding the Denver Police Department's marking and destruction of evidence at the time of his criminal trial in June 2004 violated his due process rights pursuant to the Fifth and Fourteenth Amendments. [# 6] at 4, 19-20. Plaintiff alleges that Defendant John Doe # 1 was the individual employee of the Denver Police Department who incorrectly marked certain evidentiary items and who improperly destroyed or hid other evidence. Id. at 20-21. In his Fifth Claim for Relief, Plaintiff contends Defendant John Doe # 2 wrongfully arrested and imprisoned him on September 10, 2008, in violation of his Fourth Amendment rights. Id. at 15, 24.
Defendant Denver brings the Motion for Judgment on the Pleadings pursuant to Fed.R.Civ.P. 12(c) (the "Motion") on the basis that Plaintiff's remaining claim against Denver is precluded by the statute of limitations. See [# 60]. Pursuant to D.C.COLO.LCivR 7.1 C. and Fed.R.Civ.P. 6(d), Plaintiff's response to the Motion was due December 5, 2011. Plaintiff filed a motion requesting an extension of his response deadline on November 29, 2011, which the Court granted on November 30, 2011. [66, 69]. The Court reset the deadline to December 15, 2011.[# 69]. To date, Plaintiff has not filed a response.
Dismissal of Plaintiff's case may be appropriate based on Plaintiff's failure to comply with the Court's Minute Order establishing a deadline for Plaintiff to file his response. See Fed.R.Civ.P. 41(b). In fact, Denver's second motion pending before the Court seeks dismissal of this action due to Plaintiff's failure to prosecute this lawsuit, in light of his failure to respond to the Motion and his apparent refusal to agree to a deposition date. See [# 70]. While some district court local rules within the Tenth Circuit authorize dismissal based solely on a failure to respond, the District of Colorado's Civil Local Rules do not specify that failure to respond to a motion may be deemed as consent to its entry. See, e.g., D.C. Kan. L. Civ. R. 7.4. In any event, when dealing with a pro se plaintiff, the Tenth Circuit has stated its preference for resolution of the substance of a motion to dismiss despite the pro se plaintiff's failure to respond. Persik v. Manpower, Inc., 85 F. App'x 127, 130 (10th Cir.2003) (unpublished decision). Given the judicial system's strong preference for resolving cases on their merits, the Court considers the Motion on its merits.
"The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Id. (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). However, "[t]he court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (citation omitted). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.Ct. at 1949 (citation omitted).
Defendant Denver argues that Plaintiff's First Claim for Relief is barred by the applicable statute of limitations. The Court agrees.
Actions brought pursuant to 42 U.S.C. § 1983 are subject to the general personal injury limitation period of the state in which the action arose. Wilson v. Garcia, 471 U.S. 261, 280 (1985); Hunt v. Bennett, 17 F.3d 1263, 1265-66 (10th Cir.1994). In Colorado, a two-year statute of limitations applies. See Colo.Rev.Stat. § 13-80-102(1)(g), (i) (creating a two-year limitation period for "[a]ll actions upon liability created by a federal statute where no period of limitation is provided in said federal statue" and for "[a]ll other actions of every kind for which no other period of limitation is provided"); Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir.1993) (applying Colo.Rev.Stat. § 13-80-102 to a § 1983 claim).
By contrast, federal law rather than state law determines when a cause of action accrues. Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968-69 (10th Cir.1994). Claims brought pursuant to § 1983 "accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of [the] action." Hunt, 17 F.3d at 1266 (quoting Johnson v. Johnson County Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir.1991)). "Claims alleging denial of a fair trial are presumed to have accrued at the time the trial concludes." Johnson, 925 F.2d at 1301 (citation omitted). "Claims arising out of police actions toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur." Id. (citation omitted).
Plaintiff initiated this lawsuit on September 10, 2010, but did not file his initial Complaint until September 21, 2010. [1, 3]. Accepting the earlier date in consideration of Plaintiff's pro se status, all claims accruing before September 10, 2008 are outside of the limitations period and should be dismissed as time-barred.
Here, the allegations against Defendants Denver and John Doe # 1 arise from the marking of evidence used during Plaintiff's criminal trial (and alleged destruction of evidence presumably relevant to the criminal trial) which, pursuant to the facts alleged in the Amended Complaint, concluded on June 17, 2004.[# 6] at 4. Therefore, Plaintiff's First Claim for Relief against these two Defendants accrued on June 17, 2004, which is nearly four years outside of the applicable limitations period. Johnson, 925 F.2d at 1301. Thus, the Court recommends that Defendant's Motion be granted, and Defendant Denver be dismissed with prejudice from this lawsuit as the claim asserted against it is barred by the statute of limitations. The Court sua sponte recommends that Defendant John Doe # 1 be dismissed with prejudice for the same reason.
Although the Court may extend the time for a plaintiff to serve a defendant even without a showing of good cause, Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir.1995), the Court is not inclined to do so here. This matter has been pending since September 2010. Given Plaintiff's apparent reluctance to continue the prosecution of this lawsuit (evidenced by his failure to respond to Defendant's Motion and his alleged failure to communicate with counsel for Defendant Denver), the Court does not anticipate any rectification of Plaintiff's failure to timely identify Defendant John Doe # 2. Plaintiff has failed to effect service of Defendant John Doe # 2 within one-hundred twenty days of the filing of this case, failed to provide sufficient contact information for the Court to do so, and failed to provide good cause for the Court to find that an opportunity exists to cure the service deficiency in the future. Therefore, the Court sua sponte recommends that Plaintiff's Fifth Claim for Relief and Defendant John Doe # 2 be dismissed from this action. The Court recognizes that dismissal of Defendant John Doe # 2 at this time will have the effect of a dismissal with prejudice, as any attempt to resuscitate the claim against Defendant John Doe # 2 by Plaintiff would be timebarred by the applicable statute of limitations as described above. However, Plaintiff's evident failure to respond to the Motion for Judgment on the Pleadings, and failure to communicate with counsel for Defendants as attested in the Motion to Dismiss, demonstrates a record of conduct delaying the adjudication of his remaining claims, in addition to a record of indifference as to the outcome. For these reasons, the Court recommends dismissal of Defendant John Doe # 2, with the effect of dismissal with prejudice.
Accordingly, the Court respectfully RECOMMENDS finding as follows:
1) Plaintiff's First Claim for Relief against Defendants Denver and John Doe # 1 should be dismissed with prejudice as barred by the applicable statute of limitations; and
2) Plaintiff's Fifth Claim for Relief against Defendant John Doe # 2 should be dismissed with prejudice Plaintiff's failure to timely identify and serve Defendant John Doe # 2 as stated herein.
The Court FURTHER
The Court FURTHER
IT IS HEREBY
Jonathan (Lane) Woodstock, Pueblo, CO, pro se.
Jeannine Sue Haag, Larimer County Attorney's Office, Fort Collins, CO, Bethany Ann Gorlin, Jessica E. Yates, Neal J.G. McConomy, Snell & Wilmer, LLP, Andrew Bradford Clauss, Christopher William Brophy, Nicole Marie Black, Lewis Brisbois Bisgaard & Smith, LLP, Denver, CO, for Defendants.
Kathleen M. Tafoya, United States Magistrate Judge
Plaintiff, proceeding pro se, was, at the time of the allegations in his Complaint, a prisoner incarcerated at the Larimer County Jail ("LCJ"). (See Doc. No. 9 [Compl.] at 4, filed February 25, 2015.) In his Complaint, Plaintiff alleges that, from January 1, 2014, to March 4, 2014, the defendants refused to provide him with a religious kosher diet, thereby violating Plaintiff's rights under 42 U.S.C. § 1983, the Religious Land Use and Institutionalized Persons Act of 200 ("RLUIPA"), and Colorado law. (See id.) Plaintiff seeks compensatory damages, punitive damages, and injunctive relief. (See id. at 15-16.)
Defendants Shaffer and Palmer move for summary judgment on Plaintiff's claims against them. (Mot.)
Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is "material" if "under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. Moreover, because Plaintiff is proceeding pro se, the court, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). At the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.
Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). There must be an "affirmative link between the defendant's conduct and any constitutional violation." Stidham v. Peace Officer Stds. & Training, 265 F.3d 1144, 1156 (10th Cir. 2001). "[T]o state a claim in federal court, a complaint must explain what each defendant did to him . . . when the defendant did it; how the defendant's action harmed him . . . and what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). A defendant may not be held liable under § 1983 merely because of his or her supervisory position. Se Pemhaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983).
Defendant Palmer is a captain at the Larimer County Sheriff's Office and is assigned to oversee the Larimer County Jail. (Mot., Attach. 1, ¶ 1.) Defendant Shaffer is a lieutenant at the Larimer County Sheriff's Office assigned to the Larimer County Jail since 1995. (Id., Attach. 2, ¶ 1.) Plaintiff alleges these defendants failed to provide him a proper kosher diet. (See Compl.) Specifically, Plaintiff alleges the defendants denied "kites" in which Plaintiff complained about his kosher diet. (See id., ¶¶ 3, 7, 8, 9.) Plaintiff alleges Defendant Palmer "supervised [Defendant] Shaffer at the county jail" and worked with Defendant Shaffer "in setting the guidelines for the kosher diets." (Id., ¶ 12.) Plaintiff alleges Defendant Palmer "instructed staff on how to follow guidelines and policies." (Id.) Plaintiff also alleges Defendant Palmer was aware of Plaintiff's kosher diet problems because of the kites and grievances he filed, but Defendant Palmer made a choice not to fix the problems. (Id.)
Plaintiff does not allege facts to show that Defendants Shaffer and Palmer were involved directly in the alleged constitutional violations regarding the preparation and distribution of the kosher meals. Moreover, to the extent Plaintiff alleges the defendants were involved in the denial of grievances, "a denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citing, e.g., Whitington v. Ortiz, 307 Fed.Appx. 179, 192-193, 2009 WL 74471, at * 12 (10th Cir. Jan. 13, 2009)) (denial of grievances alone is insufficient to establish personal participation in alleged constitutional violations which prompted filing of grievance).
Defendants Shaffer and Palmer are entitled to summary judgment on Plaintiff's § 1983 claims asserted against them for Plaintiff's failure to allege their personal participation in the alleged violations.
Because this court recommends that Defendants Palmer and Shaffer be granted summary judgment on Plaintiff's § 1983 claims, Plaintiff's municipal liability claims also fail as a matter of law, because there was no underlying constitutional violation. See, e.g., Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993); Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (citing Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317-18 (10th Cir. 2002)).
Defendants Palmer and Shaffer, in their individual capacities, raise the defense of qualified immunity to Plaintiff's constitutional claims. Whether a defendant is entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007). To overcome the defendants' claim of qualified immunity, the plaintiff must establish that the defendants' actions violated plaintiff's constitutional or statutory right and that the right at issue was clearly established at the time of the defendants' alleged unlawful conduct. Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). "[C]ourts have discretion to decide which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. "Qualified immunity is applicable unless" the plaintiff can satisfy both prongs of the inquiry. Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks and citations omitted).
This court recommends that Defendants Palmer and Shaffer should be granted summary judgment on Plaintiff's constitutional claims. Thus, Plaintiff has not established that the these defendants violated Plaintiff's constitutional rights, and Defendants Palmer and Shaffer are entitled to qualified immunity in their individual capacities as to Plaintiff's constitutional claims.
Plaintiff's remaining claim against Defendants Palmer and Shaffer under federal law is his claim that the Defendants violated his rights under RLUIPA. Defendants Shaffer and Palmer argue that, except as to one grievance, Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e(a). (Mot. at 6-7.)
The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The "PLRA's exhaustion requirement applies to all inmate suits about prison life." Porter v. Nussle, 534 U.S. 516, 532 (2002). See also Booth v. Churner, 532 U.S. 731, 731-32 (2001) (PLRA requires exhaustion in all matters regardless of remedy sought and availability of remedy at the agency level).
The PLRA's requirement that an inmate exhaust all available administrative remedies before initiating suit is mandatory. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) ("Exhaustion is no longer left to the discretion of the district court, but is mandatory."). See also Jones v. Bock, 549 U.S. at 210B212 ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."). "To exhaust administrative remedies an inmate must properly comply with grievance procedures; substantial compliance is insufficient." Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). "[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules, Crules that are defined not by the PLRA, but by the prison grievance process itself." Bock, 549 U.S. at 218 (internal quotation marks and citation omitted). Thus, it is the prison's own grievance procedures that set forth what the prisoner must do in order to exhaust his or her administrative remedies. Id., 549 U.S. at 218 (citation omitted). After Jones v. Bock, a failure to exhaust administrative remedies constitutes an affirmative defense which must proved by defendants. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).
The court finds Defendants Palmer and Shaffer have failed to show that there is no genuine dispute as to whether Plaintiff exhausted his administrative remedies. Their motion for summary judgment in this regard properly is denied.
Defendants Palmer and Shaffer move for summary judgment as to Plaintiff's RLUIPA claims asserted against them in their individual capacities.
The Tenth Circuit recently held "there is no cause of action under RLUIPA for individual — capacity claims." Stewart v. Beach, 701 F.3d 1322, 1334 (10th Cir. 2012). Accordingly, Defendants Palmer and Shaffer are entitled to summary judgment on Plaintiff's RLUIPA claims to the extent they are directed at Defendants Palmer and Shaffer in their individual capacities.
Defendants Palmer and Shaffer assert that Plaintiff is limited to equitable relief under RLUIPA. (Mot. at 11-12.)
On March 4, 2014, Plaintiff was transferred from the LCJ to the Colorado Department of Corrections. (Mot., Attach. 1, ¶ 2.) Plaintiff's transfer from the LCJ renders moot his requests for injunctive relief concerning that facility. See Jordan v. Sosa, 654 F.3d 1012, 1027-28 (10th Cir. 2011) (transfer between prisons moots claims for declaratory and injunctive relief against officials at former prison). Thus, the court recommends that Plaintiff's claims for injunctive relief against all defendants be dismissed for lack of jurisdiction.
"Several circuit courts have held, under the principles of sovereign (Eleventh Amendment) immunity, that money damages are not available for official — capacity RLUIPA claims." Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311-12 (10th Cir. 2010) (citations omitted). "On the other hand, one circuit court has concluded that monetary relief is available against official — capacity defendants in RLUIPA suits (although, the court also acknowledged, for a prisoner plaintiff, the Prisoner Litigation Reform Act generally will limit such relief to nominal damages)." Abdulhaseeb, 600 F.3d at 1312 (citing Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007)). However, the Tenth Circuit declined to decide the issue of Eleventh Amendment immunity from money damages for officialcapacity RLUIPA claims. Abdulhaseeb, 600 F.3d at 1312. Moreover, "Eleventh Amendment immunity extends only to state officials, and does not protect county or local officials." Meade v. Grubbs, 841 F.2d 1512, 1529 n.17 (10th Cir. 1988) (abrogated on other grounds (emphasis in original).
Defendants have provided the court with no law, and the court has not found any, regarding the unavailability of money damages under RLUIPA in a suit against a county defendant sued in his or her official capacity. Nevertheless, Plaintiff's RLUIPA claim is subject to dismissal, in part, on an alternative basis, because Plaintiff has failed to allege a physical injury sufficient to permit the recovery of monetary damages under the PLRA. The PLRA states, in pertinent part, "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). By its plain language, § 1997e(e) requires a prisoner to allege a physical injury to bring a claim for "mental or emotional injury."
Nevertheless, although § 1997e(e) bars recovery for mental or emotional injury damages absent an allegation of physical injury, it does not bar recovery of nominal damages, punitive damages, or declaratory or injunctive relief. See Searles v. Van Bebber, 251 F.3d 869, 878-79, 880-881 (10th Cir. 2001) (nominal and punitive damages available absent a showing of actual injury); Perkins v. Kansas Dep't of Corrs., 165 F.3d 803, 808 and n. 6 (10th Cir. 1999) (nominal damages and equitable relief not barred by PLRA). Thus, Plaintiff's claims for compensatory damages are barred by the PLRA. However, he may still pursue nominal and punitive damages.
Defendants Palmer and Shaffer move for summary judgment on Plaintiff's claim asserted under the Civil Rights of Institutionalized Persons Act of 1980 ("CRIPA").
CRIPA confers on the Attorney General the authority "to initiate or intervene in a civil action on behalf of state institutionalized persons who are subject to egregious or flagrant conditions which deprive them of their rights." Callahan v. Southwestern Med. Ctr., No. CIV-03-1434-F, 2005 WL 1238770, at *6 (W.D. Okla. Apr. 29, 2005). However, CRIPA "does not provide for an individual right of action." Id.; see also Cooper v. Sumner, 672 F.Supp. 1361 (D. Nev. 1987); 42 U.S.C. § 1997(a)(c).
Accordingly, the court recommends that Plaintiff's CRIPA claim against all defendants be dismissed with prejudice.
Under Colorado law, prisoners "have the right to worship according to the dictates of their consciences." Colo. Rev. Stat. § 17-42-101(1). "Where a statute does not provide for a private cause of action, a plaintiff may not pursue a claim for relief upon the statute." See Hardwood v. Brady, 165 P.3d 871, 876 (Colo. App. 2007) (citing Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203 (Colo. App. 2000)) (holding that plaintiff had no standing to bring claim against defendant under statute prohibiting poisoning of wildlife because statute does not create a private cause of action). There is no statute that authorizes a plaintiff to bring a claim under § 17-42-101. See Grady v. Holmes, No. 07-cv-02251-EWN-CBS, 2008 WL 3539274, at *6 (D. Colo. Aug. 12, 2008).
Accordingly, Plaintiff's claim against all defendants asserted under Colo. Rev. Stat. § 17-42-101 should be dismissed with prejudice.
In his Complaint, Plaintiff alleges violation of his rights under "Article, Section 4 of the Colorado Constitution." (See Compl. at 12.)
Article II, Section 4, of the Colorado Constitution provides:
Thus, no state-based implied remedy is necessary, and Plaintiff's claim for alleged violations of Colorado Constitution Article II, Section 4, asserted against all defendants should be dismissed.
Based on the foregoing, this court respectfully
1. Defendants Shaffer and Palmer should be granted summary judgment on Plaintiff's claims asserted under 42 U.S.C. § 1983 against them for Plaintiff's failure to allege their personal participation in the alleged violations;
2. Defendants Palmer and Shaffer should be granted summary judgment on Plaintiff's § 1983 municipal liability claims;
3. Defendants Palmer and Shaffer should be granted qualified immunity in their individual capacities as to Plaintiff's constitutional claims;
4. Defendants Palmer and Shaffer should be granted summary judgment on Plaintiff's RLUIPA claims to the extent they are directed at Defendants Palmer and Shaffer in their individual capacities;
5. Plaintiff's claims for injunctive relief against all defendants be dismissed for lack of jurisdiction;
6. Plaintiff's claims for compensatory damages against all defendants, which are barred by the PLRA, should be dismissed;
7. Plaintiff's state law claims asserted against all defendants should be dismissed; and
8. Defendants Palmer and Shaffer's motion for summary judgment should be denied as to Plaintiff's RLUIPA claim to the extent he seeks nominal and punitive damages only.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiff's waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Jonathan (Lane) Woodstock, Sterling, CO, pro se.
Jeannine Sue Haag, Fort Collins, CO, Bethany Ann Gorlin, Jessica E. Yates, Snell & Wilmer, LLP, Denver, CO, Nicholas Harry Ores, Ores Law LLC, Loveland, CO, Andrew Bradford Clauss, Christopher William Brophy, Nicole Marie Black, Lewis Brisbois Bisgaard & Smith, LLP, Denver, CO, for Defendants.
Blackburn, United States District Judge
Defendant professes confusion as to the effect of my
My order dismissed the following claims as against all defendants (to include Mr. Jones): (1) under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") as against defendants in their individual capacities; (2) under RLUIPA as against defendants in their official capacities insofar as plaintiff would seek injunctive relief and compensatory damages; (3) under the Civil Rights of Institutionalized Persons Act of 1980 ("CRIPA"); (4) under § 17-4-101(1), C.R.S.; and (5) under Article II, Section 4 of the Colorado Constitution. (
However, my decision left intact plaintiff's claims for nominal and punitive damages under RLUIPA, which claims the magistrate judge properly noted were not barred by the PLRA:
(Id. at 10 (emphasis added).)
In addition, plaintiff has asserted federal constitutional claims against Mr. Jones under 42 U.S.C. § 1983. Indeed, Mr. Jones has addressed these claims in his own motion for summary judgment. (
1. That
2. That the effect of my prior order is clarified as stated herein; and
3. That
Jonathan (Lane) Woodstock, Pueblo, CO, pro se.
Jeannine Sue Haag, Larimer County Attorney's Office, Fort Collins, CO, Bethany Ann Gorlin, Jessica E. Yates, Neal J.G. McConomy, Snell & Wilmer, LLP, Andrew Bradford Clauss, Christopher William Brophy, Nicole Marie Black, Lewis Brisbois Bisgaard & Smith, LLP, Denver, CO, for Defendants.
Kathleen M. Tafoya, United States Magistrate Judge
Plaintiff, proceeding pro se, was, at the time of the allegations in his Complaint, a prisoner incarcerated at the Larimer County Jail ("LCJ"). (See Doc. No. 9 [Compl.] at 4, filed Feb. 25, 2015.) In his Complaint, Plaintiff alleges that, from January 1, 2014, to March 4, 2014, the defendants refused to provide him with a religious kosher diet, thereby violating Plaintiff's rights under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA").
Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is "material" if "under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).
A § 1983 claim "must establish not only the deprivation of a right secured by the Constitution or laws of the United States, but also a deprivation committed under color of state law." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Private actors are excluded from § 1983 liability, no matter how discriminatory or wrongful their conduct. Id. at 50. Similarly, the RLUIPA defines "government" to include "any . . . person acting under color of state law." 42 U.S.C. § 2000cc-5. "[S]tate action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n., 531 U.S. 288, 295 (2001)).
In his Complaint, Plaintiff alleges Defendant Jones acted under color of state law (Compl. at 3) when he told Plaintiff "that his kosher diet is kosher and that kosher guidelines are being followed" (id. at 8), when he "supervised and instructed the inmates in the kitchen how to prepare, cook and serve the kosher diets" (id. at 9), and "chose not to fix the [kosher diet] problems" despite being aware of them (id). Defendant Jones argues, citing Strope v. Cline, No. 07-3254-SAC, 2010 LEXIS 144521 (D. Kan. Mar. 18, 2010), that he is an employee of a private corporation, Aramark, and that there is no factual or legal basis to conclude that there is a nexus between the State's authority and Defendant Jones's conduct. (See Mot. at 4-6 and Ex. B [Jones. Aff.].)
In Strope, the District Court of the District of Kansas concluded that the defendants, the kitchen manager and a kitchen line supervisor, were subject to dismissal because they acted as employees of ARAMARK and not under color of state law. 2010 LEXIS at *2, *5-8, 13. Specifically, the court concluded that "[t]here [was] no evidence of a relationship between [defendants] and the [Kansas Department of Corrections] that supports a finding that [their] conduct is attributable to a state agency or that the state controlled her actions." Id. at *7-8 (citations omitted). The District of Kansas cited Blum v. Yaretsky, 457 U.S. 991 (1982), to support its finding that the defendants had not acted under color of state law. However, Blum involved a "class of Medicaid patients challenging decisions by the nursing homes in which they reside[d] to discharge or transfer patients without notice or an opportunity for a hearing." Blum, 457 U.S. at 993. The Supreme Court concluded that the patients "ha[d] failed to establish `state action' in the nursing homes' decisions to discharge or transfer Medicaid patients to lower levels of care." Id. at 1012. Particularly, the Court noted that "nursing homes [do not] perform a function that has been `traditionally the exclusive prerogative of the State." Id. at 1011 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974)). A private nursing home, however, differs greatly from a correctional facility, where the state is responsible for providing needed services, such as food and medical care, to inmates. See Ramos v. Lamm, 639 F.2d 559, 570-71 (10th Cir. 1980) (citations omitted) (noting that "the State must provide an inmate with a `healthy habilitative environment.' This includes providing nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it.").
Prisoners have a constitutional right to a diet conforming to their religious beliefs. Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (citing LaFevers v. Saffle, 936 F.2d 1117, 1119-20 (10th Cir. 1991)). Defendant Jones's role as Food Service Director at LJC, a state facility, is based on a contract with the facility. (Mot., Ex. B, ¶¶ 2-3.) Therefore, like Atkins, this case is based upon the provision of services, pursuant to state contract, which the state is constitutionally obligated to provide.
In light of the factual similarity between West v. Atkins and this case, this court respectfully
Lisa A. Guerra, Guerra Law Firm, LLC, Englewood, CO, for Plaintiff.
Gordon Lamar Vaughan, Vaughan & DeMuro, Colorado Springs, CO, Katherine Ann Ross, U.S. Attorney's Office, Sueanna Park Johnson, Colorado Attorney General's Office, Denver, CO, for Defendants.
Richard P. Matsch, Senior Judge
On or about July 1, 2014, the Plaintiff was placed in the custody of the federal Immigration and Customs Enforcement agency ("ICE"). ¶ 27. She initially was detained in the "GEO detention facility," located at 3130 North Oakland Street, Aurora Colorado.
The Plaintiff was held in the GEO facility from July 1, 2014 through September 23, 2014. ¶¶ 27-29. While there, she was permitted to wear her hijab. ¶ 29.
On or about September 23, 2014, ICE transferred the Plaintiff to the Teller County Detention Center ("TCDC") in Teller County Colorado. ¶ 31. ICE detainees may be housed at the TCDC, pursuant to contractual relationships among Teller County, the State of Colorado, and the federal government. See ¶¶ 8, 10, 17, 21. Teller County receives federal funding for allowing ICE detainees to be held at the TCDC. ¶ 32. The TCDC is operated by the department of the Sheriff of Teller County. ¶ 11.
Upon being admitted to the TCDC, the Plaintiff was required to remove her hijab and the plaintiff's prayer container was confiscated. ¶¶ 34, 38. The Plaintiff was furnished with a replacement container that held two fluid ounces. ¶ 39.
The Plaintiff repeatedly requested that she be allowed to wear her hijab, explaining that she wore it for religious purposes. The Plaintiff also asked that her prayer container be returned because the two-ounce container was insufficient to perform the cleansing ritual. ¶¶ 38, 41. The plaintiff's requests were denied. ¶¶ 41-42.
On September 29, 2014, the plaintiff's counsel requested that the Plaintiff be transferred from the TCDC on the ground that the plaintiff's rights of religious freedom were being violated there. ¶ 45.
The Plaintiff was transferred back to the GEO facility on September 30, 2014. ¶ 46. The Plaintiff remains in the custody of ICE. ¶ 27.
The Plaintiff filed this action on October 7, 2014, complaining that her rights of religious freedom had been infringed during her seven-day incarceration at the TCDC. She alleges that during her confinement at that facility, she was exposed to and forced to interact with male officers and employees, which left her feeling vulnerable, scared, embarrassed, mortified, and disgraced. ¶ 37. The Plaintiff alleges that she was unable to pray at the TCDC without her hijab and prayer container. ¶ 43. The Plaintiff further alleges that being exposed to male guards without her hijab and being unable to pray at the TCDC caused her substantial emotional distress and made her feel depressed, ashamed, violated, and unable to sleep. ¶ 44. The Plaintiff complains only about the conditions of her confinement at the TCDC. She does not complain of any current deprivations of her religious freedom.
See Compl. [# 1] & First Am. Compl. [# 5].
On November 13, 2014, the Plaintiff voluntarily dismissed her claims against the State of Colorado and Governor Hickenlooper [# 12].
The operative complaint is the second amended complaint, filed January 29, 2015. That pleading identifies the defendants as "Teller County, et al." It is assumed that the defendants named in the second amended complaint are the same as those named in the first amended complaint, with the exception of the State of Colorado and Governor Hickenlooper.
The Plaintiff seeks equitable and monetary relief for alleged violations of the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb through 2000bb-4; the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., and 42 U.S.C. § 1983.
For ease of reference, Defendants ICE, Director Winkowski, Field Director Longshore and Officer Zabat are referred to as "the Federal Defendants."
For ease of reference, the following named defendants are referred to collectively as the "Teller County Defendants": Teller County; Teller County Detention Center; Teller County Sheriff's Department; Teller County Board of County Commissioners; Sheriff Mike Ensminger (in his official and individual capacities); Undersheriff Mike Bishop (in his official and individual capacities), and Teller County Detention Commander Jason Mikesell (in his official and individual capacities).
The Federal Defendants moved pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6) for dismissal of the plaintiff's claims against them.
The Plaintiff concedes that the RLUIPA does not apply to her claims against the Federal Defendants. See 42 U.S.C. § 2000cc-5(4)(A) & (B).
The Plaintiff contends the Federal Defendants violated the RFRA, which provides as follows:
42 U.S.C. § 2000bb-1.
The Federal Defendants argue that the plaintiff's RFRA claim fails because the complaint does not allege that the Federal Defendants took any action or failed to take any action that substantially burdened the plaintiff's exercise of religion. They point out that there are no allegations that any of the Federal Defendants were present at the TCDC when the Plaintiff was forced to remove her hijab and when her prayer container was confiscated. There are no allegations that the Federal Defendants were even aware of those events when they occurred.
The Plaintiff explains that she seeks relief against ICE for "negligent oversight" of the TCDC and "negligent transfer" of the Plaintiff to that facility. The Plaintiff apparently contends that because the TCDC is an ICE contract facility, the Federal Defendants are liable for failing to prevent allegedly illegal policies of the TCDC, or alternatively, that the Federal Defendants are vicariously liable for conduct of the Teller County Defendants.
The Plaintiff has not provided any legal authority supporting either theory of liability under the RFRA. The plaintiff's RFRA claim against the Federal Defendants is not viable because there are no allegations that those Defendants took any action or failed to take any action that substantially burdened the plaintiff's exercise of religion.
In addition, this Court lacks authority to order relief against the Federal Defendants. The RFRA does not waive the federal government's sovereign immunity for money damages. See Webman v. Fed. Bureau of Prisons, 441 F.3d 1022 (D.C.Cir.2006) (reasoning that RFRA's textual reference to "appropriate relief" is not an unequivocal waiver of sovereign immunity); accord Davila v. Gladden, 777 F.3d 1198 (11th Cir.2015); Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 841 (9th Cir.2012). The RFRA waives the federal government's sovereign immunity for equitable relief only, and, as discussed more fully below, the plaintiff's requests for injunctive and declaratory relief are moot.
The Teller County Defendants also moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), arguing that the plaintiff's claims against them fail for a variety of reasons.
The plaintiff's claims against the Teller County Defendants could only be claims pursuant to the RLUIPA and/or 42 U.S.C. § 1983. The Teller County Defendants are not subject to suit under the RFRA. See City of Boerne v. Flores, 521 U.S. 507 (1997) (holding that RFRA, as applied to the states, exceeded Congress' enforcement authority under § 5 of the Fourteenth Amendment).
The RLUIPA prohibits the government from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden furthers "a compelling governmental interest," and does so by "the least restrictive means." 42 U.S.C. § 2000cc-1 (a).
The Teller County Defendants do not dispute that the Sheriff is the official policy maker for the TCDC, and they acknowledge that an official capacity claim against the Sheriff is an appropriate means of asserting a civil rights claim directed to policies of the TCDC. The Defendants correctly point out that the Plaintiff has named defendants who are not proper parties to such a claim.
"Teller County" is an improper designation because an action against the County must be brought in the name of the Board of County Commissioners. The "Board of County Commissioners" is not a proper defendant. Under the Colorado Constitution, the county sheriff is a distinct position, separate from the Board of County Commissioners. See Colo. Const. Art. XIV, § 6 (election of county commissioners); § 8 (election of Sheriff's and other county officers). The Board is not the employer of and does not exercise control over the Sheriff. The Board of County Commissioners is not subject to liability for the policies of the TCDC.
The "Teller County Sheriff's Department" is not a proper party because it is not a distinct entity. The "Teller County Detention Center" cannot be sued because it is a building.
The plaintiff's section 1983 "official capacity" claims against Undersheriff Bishop and Commander Mikesell are improper because those claims duplicate the official capacity claim(s) against Sheriff Ensminger.
The plaintiff's RLUIPA claim against Sheriff Ensminger, Undersheriff Bishop, and Commander Mikesell in their individual capacities are improper because the RLUIPA does not authorize individual liability. Stewart v. Beach, 701 F.3d 1322, 1333-35 (10th Cir.2012).
More importantly, the plaintiff's claims against the Teller County Defendants fail entirely because this Court lacks authority to provide the relief requested. The Plaintiff seeks declarations that the Teller County Defendants violated the RLUIPA (and section 1983). She requests a permanent injunction requiring the Defendants to permit the Plaintiff to wear her hijab and prohibiting the Defendants from infringing on her right to pray while she is in custody. The problem with those requests is that the Plaintiff is no longer being held at the TCDC, and she is no longer subject to its policies. The Plaintiff does not contend that she is unable to wear her hijab at the facility where she is now being held or that she is currently unable to engage in her Muslim prayer rituals.
The plaintiff's transfer from the TCDC renders moot her requests for declaratory and injunctive relief concerning that facility. See Jordan v. Soso, 654 F.3d 1012, 1027-28 (10th Cir.2011) (transfer between prisons moots claims for declaratory and injunctive relief against officials at former prison); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir.2010). Contrary to the plaintiff's arguments, her claims do not fall within a recognized exception to the mootness doctrine, such as the "voluntary cessation" exception or "capable of repetition yet evading review." See Jordan, 654 F.3d at 1034-37.
A constitutional violation could provide the basis for damages under section 1983, but the complaint does not refer to any provision of the United States Constitution.
Even if the Plaintiff could state a plausible First Amendment claim, Sheriff Ensminger, Undersheriff Bishop or Commander Mikesell are entitled to qualified immunity from suit under section 1983. Qualified immunity shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine the applicability of that doctrine, the court must consider (1) whether the plaintiff has sufficiently alleged a statutory or constitutional violation; and (2) whether the legal duty was clearly established at the time of the alleged violation. The court has discretion to decide which prong of the analysis to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A right is considered clearly established only if it has been acknowledged in decisions by the Supreme Court, the Tenth Circuit, or the weight of authority elsewhere. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir.1998). The facts in these decisions need not be identical, but the cases must provide enough notice to alert the defendant to the constitutional right. Green v. Post, 574 F.3d 1294, 1299-1300 (10th Cir.2009); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (A right is clearly established if the contours of the right are "sufficiently clear [so] that a reasonable official would understand that what he is doing violates that right.")
It is not enough for the Plaintiff to cite cases showing that inmates retain protections guaranteed by the First Amendment. To define the subject right, an additional level of specificity is required. See Stewart, 701 F.3d at 1330-31 ("[A] more precise definition does not lead to an overreliance on factual similarity but to a proper reliance.") The rights of religious freedom claimed by the Plaintiff were not clearly established at the time of the alleged violations.
Based on the foregoing, it is
ORDERED that the Federal Defendants' motion for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6) is granted [# 30], and it is
FURTHER ORDERED that the Teller County Defendants' motion for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6) is granted [# 29].
The plaintiff's claims against the State of Colorado and Governor John Hickenlooper were voluntarily dismissed on November 13, 2014.
The Clerk shall dismiss this civil action with prejudice.
2010 U.S. Dist. LEXIS 144521*
MICHAEL STROPE, also known as GORDON EUGENE STROPE, Plaintiff, vs. SAM CLINE, et al., Defendants.
diet, religious, food, plaintiff's claim, allegations, tray, color of state law, deprivation, spoiled, rights, meal, grievance, serving, substantial burden, religion, holiday, regular, prison, dirty
For Sam Cline, Warden, Hutchinson Correctional Facility, in his individual and official capacity, Charles Werholtz, Secretary of Corrections, in his individual and official capacity, David C. Ferris, Accounting Manager, Lansing Correctional Facility, in his individual and official capacity, Elizabeth Rice, Correctional Assistant, Kansas Department of Corrections, in her individual and official capacity, Colene Fischli, Correctional Assistant, Kansas Department of Corrections, in her individual and official capacity, Defendants: Kimberly M. Grunewald, LEAD ATTORNEY, University of Kansas General Counsel, Lawrence, KS; Kimberly M.J. Lynch, LEAD ATTORNEY, Office of Attorney General — Topeka, Topeka, KS; Tim J. Riemann, Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP § KCMO, Kansas City, MO.
For (fnu) Anderson, Kitchen Manager, Aramark, Hutchinson Correctional Facility, in his individual and official capacity, (fnu) Cole, Kitchen Line Supervisor, Aramark, Hutchinson Correctional Facility, in her individual and official capacity, Defendants: James S. Kreamer, Marcos A. Barbosa, LEAD ATTORNEYS, Baker, Sterchi,
For Kansas Department of Corrections, Interested Party: Jon D. Graves, LEAD ATTORNEY, Hutchinson Correctional Facility, Hutchinson, KS.
This matter comes before the court on the motions of defendants Linda Cole and Rusty Anderson for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff, a prisoner in state custody, brings this action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA) alleging violations of his rights under the First, Eighth, and Fourteenth Amendments and interference with his right to free exercise of religion.
Defendants Cole and Anderson were at all relevant times employed by Aramark Correctional Services, LLC. Defendant Cole was employed as a kitchen line supervisor at the Hutchinson Correctional Facility (HCF), and defendant Anderson was employed as the kitchen manager. Plaintiff, at all relevant times, was a prisoner in state custody receiving a religious diet. The court discusses the specific claims against each defendant separately.
In ruling on a
In assessing a complaint, the court may draw upon judicial experience and common sense. lqbal, 129 S.Ct. at 1950. The court need not accept as true allegations which state only legal conclusions. See id.; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Rather, a plaintiff presents a facially plausible claim by pleading facts from which the court can reasonably infer that the defendant is liable for the misconduct alleged. lqbal, 129 S.Ct. at 1949. Where the well-pleaded facts do not show more than the possibility of misconduct, the plaintiff has not shown a plausible claim for relief. Id. at 1950.
Plaintiff's claims against defendant Cole appear in Counts 5 and 6 of the complaint (Doc. 1).
In Count 5, he claims that between February and July 2007, she served
Defendant Cole states plaintiff did not discuss his concerns with her, (Doc. 35-5, Cole affidavit), and the grievance responses prepared by the Kansas Department of Corrections (KDOC) determined the complaints were unfounded (Doc. 1, Exs. 3 and 6).
Plaintiff next complains he was served reduced portions of eggs on March 12 and 14, 2007, and that on May 2, 2007, he was served spoiled chicken. Defendant Cole is not mentioned in the plaintiff's grievance concerning the spoiled chicken (Doc. 1, Ex. 16.)
Plaintiff contends that on the March occasions, defendant Cole refused to weigh his portion of eggs to verify the serving size; defendant Cole's affidavit states plaintiff did not ask that his serving be weighed. The KDOC determined plaintiff's claim of spoiled chicken was unfounded (Doc. 1, Ex. 17).
Plaintiff complains food was served on dirty trays between June 8 and June
Plaintiff claims prisoners receiving the religious line diet were subjected to harassment, claiming that they were subjected to shakedown searches after they ate. Plaintiff does not allege defendant Cole participated in the searches or that she had any specific personal involvement. (Doc. 1, pp. 32-33, Ex. 32-33.)
Plaintiff alleges prisoners receiving the regular diet ate a holiday meal on July 4, 2007, while those receiving the religious diet were served outdated and spoiled fruit. The KDOC found plaintiff was provided a balanced diet and was not denied a religious diet on July 4, 2007. However, plaintiff was advised that if he chose to eat the holiday meal offered on the regular diet line, he would be removed from the religious diet line for 90 days. (Doc. 1, Ex. 43.)
Defendant Cole seeks the dismissal from this matter on the ground she did not act "under color of state law" as contemplated by § 1983 and the RLUIPA. She also argues, in
To seek relief under § 1983, plaintiff must allege the deprivation of a right arising under the Constitution or federal law by a person acting under color of state law. Kentucky v. Graham, 473 U.S. 159, 164, 105 S.Ct. 3099, 87 L. Ed. 2d 114 (1985); B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1305 n. 27 (10th Cir. 2008). Acting under color of state law has been denied to "require[] that the defendant . . . have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L. Ed. 2d 40 (1988) (internal citation omitted). "[T]he purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L. Ed. 2d 504 (1992).
However, the "under color of state law" requirement of §1983 excludes "`merely private conduct,
Here, plaintiff's claims under § 1983 against defendant Cole fail because she did not act under state law but, rather, was an employee of a private corporation. There is no evidence of a relationship between defendant Cole and the KDOC that supports a finding that her conduct is attributable to a state agency
Moreover, even if plaintiff could show that defendant Cole acted under color of state law, his claims would fail on the merits.
First, in order to assert a claim under the First Amendment, plaintiff must show the defendant created a substantial burden on the practice of religion. Kay v. Bemis, 500 F.3d 1214, 1219 (10th Cir. 2007) (quoting Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir. 2007). Not every dissatisfaction experienced by a prisoner related to religious observance violates the First Amendment. Rather, "[a] prisoner may be inconvenienced in the practice of his or her faith so long as the governmental conduct does not prohibit the prisoner from `participating in the mandates of his religion.'" Grady v. Holmes, 2008 U.S. Dist. LEXIS 112312, 2008 WL 3539274, at *4 (D. Colo.2008) (quoting Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.1997)).
While
Likewise, these claims of inedible food and unsanitary trays on a few occasions do not plausibly support a violation of the Eighth Amendment. The Eighth Amendment proscribes cruel and unusual punishment, and a claim of such a deprivation must be supported by allegations of a "sufficiently serious" deprivation creating a "substantial risk of serious harm" to a prisoner. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L. Ed. 2d 811 (1994). Thus, "[a] substantial deprivation of food may be sufficiently serious to state a conditions of confinement claim under the Eighth Amendment." Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002).
Finally, plaintiff alleges a violation of the Fourteenth Amendment based upon the provision of a holiday meal on July 4, 2007, to prisoners receiving the regular diet. To state a claim under the Fourteenth Amendment, plaintiff must establish both that he is a member of a protected class and that he was subjected to treatment substantially different from those similarly situated. See Tonkovich v. Kansas Board of Regents, 159 F.3d 504, 533 (10th Cir.1998). Prisoners are not a protected or suspect class. Copeland v. Matthews, 768 F.Supp. 779, 780-81 (D.Kan. 1991). Here, plaintiff's claim concerning a holiday meal served to the regular line does not state a violation of his right to equal protection. Plaintiff is not a member of a protected class.
Finally, to the extent plaintiff asserts claims against defendant
Plaintiff's claims against defendant Anderson appear in Counts 2, 3, and 4.
In Count 2, plaintiff claims defendant Anderson violated the Eighth Amendment by serving prisoners receiving the religious diet spoiled food and by serving food on dirty trays, that he conspired to violate plaintiff's rights by removing beef, tomatoes, and cucumbers from the religious diet, by serving peanut butter frequently, and by reducing portions. (Doc. 1, p. 10.) In a related grievance, the KDOC advised plaintiff that the facility was serving a common fare diet to religious diet lines. The diet was approved by the state dietician, and has been adopted by the federal Bureau of
Plaintiff also alleges defendant Anderson violated the Fourteenth Amendment based upon an alleged disparity in the quality of food service provided to prisoners receiving the religious diet and the regular diet.(Doc. 1, p. 10)
In Count 3, plaintiff asserts the same claims, alleging defendant Anderson violated his rights under the RLUIPA. (Doc.
In Count 4, plaintiff claims defendant Anderson violated his rights under the Fourteenth Amendment by providing "an unbalanced and unhealthy diet" in retaliation for plaintiff's use of the grievance process. (Doc. 1, p. 11.)
Like defendant Cole, defendant Anderson is an employee of a private corporation rather than a state employee. The actions alleged in the complaint were actions taken in the course of his employment and were not acts taken under color of state law. See Blum v. Yaretsky, 457 U.S. 991. 1002. 102 S.Ct. 2777. 73 L. Ed. 2d 534 (1982): Young v. Martinez. 2008 U.S. Dist. LEXIS 22415, 2008 WL 793575, *11 (D. Colo. 2008), and Harrison v. Richardson, 2009 U.S. Dist. LEXIS 25820, 2009 WL 735128 (D. Kan. 2009). The plaintiff's claims arising under § 1983 against defendant Anderson therefore are subject to dismissal.
Even if plaintiff could establish that defendant Anderson acted under color of state law, his claims of constitutional violations would be subject to dismissal. First, in order to state a claim for relief under the First Amendment, plaintiff must show the defendant's actions "substantially burdened his ability to practice his religion." Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). The complaint does not plausibly suggest that any
Rather, the common fare diet was a decision approved by a state dietician, and the isolated instances alleged by the plaintiff do not suggest any ongoing dietary deprivation that might create a substantial burden on religious exercise.
Likewise, plaintiff's claims under the Eighth Amendment would fail. As discussed above, to state a claim of cruel and unusual punishment, plaintiff must establish both a serious deprivation and deliberate indifference by prison officials. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L. Ed. 2d 811 (1994); Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L. Ed. 2d 251 (1976). Here, even assuming the service of food items grieved by the plaintiff occurred exactly as stated, the isolated events do not suggest plaintiff has been subjected to any continuing serious dietary deprivation. At most, he received unappetizing food on some occasions but did not immediately request replacement items.
To the extent plaintiff asserts claims against defendant Anderson under the RLUIPA, his claims fails as a matter of law because defendant Anderson is an employee of a corporation and not a governmental entity as defined
Finally, plaintiff's claim under the Fourteenth Amendment would fail. First, plaintiff is not a member of a protected class, see Copeland v. Matthews, 768 F.Supp. 779, 780-81 (D.Kan. 1991); next, there is no showing that plaintiff was treated differently than those similarly situated.
For the reasons set forth, the court concludes defendants Cole and Anderson are entitled to dismissal from this action. The defendants were employed by a private corporation at all relevant times, and they did not act under color of state law as contemplated by § 1983 and the RLUIPA.
Moreover, the court concludes that even if the acts in question were reasonably attributable to a governmental entity and thus were taken under color of state law, plaintiff's well-pleaded allegations would be subject to dismissal on the merits.
IT IS, THEREFORE, BY THE COURT ORDERED the motion to dismiss of defendant Linda Cole (Doc. 43) is granted.
IT IS FURTHER ORDERED the motion to dismiss of defendant Rusty Anderson (Doc. 45) is granted.
Copies of this order shall be transmitted to the parties.
Dated at Topeka, Kansas, this 18th day of March, 2010.
/S/ Sam
SAM A. CROW
United States Senior District Judge
Carl Harrison, Leavenworth, KS, pro se.
SAM A. CROW, Senior District Judge.
Mr. Harrison was convicted in the State of Maryland and has been incarcerated since June 13, 2001, on "a life all suspended but 60 year sentence." On July 23, 2008, he and 47 other prisoners from the Maryland Department of Corrections (MDOC) were transferred to the LDC pursuant to a contract between federal agencies and the MDOC.
Plaintiff complains of conditions of confinement and actions of employees at the LDC. As Count 1 of his complaint, he asserts he was subjected to cruel and unusual punishment and excessive force in violation of his rights under the Eighth Amendment. In support, he describes conditions in segregation that he alleges were unnecessary and imposed, not in a good faith effort to maintain prison discipline, but maliciously to cause harm.
As Count 2, plaintiff claims his Fourteenth Amendment due process rights were violated as a result of procedures "enforced to illegally confine (him) to segregation." In support, he alleges he was "arbitrarily placed in segregation" without proper notice, and thus had no opportunity to answer any allegations against him.
As Count 3, plaintiff claims his rights under the Fifth, Sixth, and Fourteenth Amendments have been violated because the LDC's law library is "totally inadequate to assist petitioner in preparations for his post conviction relief petition." As factual support, he alleges he could not use the law library on July 30, 2008, upon his arrival at LDC due to "orientation phases," and when he did use it on August 24, 2008, he discovered inadequate legal research materials and that the "legal clerk" was not knowledgeable as to Maryland law.
Plaintiff seeks compensatory, punitive, and nominal damages against each defendant.
Plaintiff has filed an Application to Proceed Without Prepayment of Fees (Doc. 2), and has attached an Inmate Account Statement in support as statutorily mandated. Section 1915(b)(1) of 28 U.S.C., requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the date of filing of a civil action. Having examined the records of plaintiff's account, the court finds the average monthly deposit to plaintiff's account is $36.69 and the average monthly balance is $31.71. The court therefore assesses an initial partial filing fee of $7.00, twenty percent of the average monthly deposit, rounded to the lower half dollar
At the outset, the court finds from the face of the complaint that plaintiff generally fails to present a cause of action under 42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or law of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48-49 (1988)(citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir.1992). Although plaintiff makes the conclusory allegation that each defendant acted under color of state law, his complaint is against employees of the LDC. The Leavenworth Detention Center is not a state agency and its employees are not state employees or actors. They therefore do not act "under color of state law
Plaintiff complains that he was placed in segregated confinement and a "phase level program" upon his arrival at the LDC, despite his having been a "general population prisoner in Maryland." He alleges he was required to complete level Ito enter general population, but also that he complied and was released into general population on July 30, 2008, along with several other Maryland inmates. On August 6, 2008, he was again placed in segregation, but does not disclose the circumstances or duration
Plaintiff's complaints about his temporary placements in segregation or administrative detention fail to state a federal constitutional claim. Administrative detention implicates constitutional due process only if the confinement is "the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." McDiffett v. Stotts, 902 F.Supp. 1419, 1426 (D.Kan.1995)(quoting Sandin v. Conner, 515 U.S. 472, 486 (1995)); Speed v. Stotts, 941 F.Supp. 1051, 1055 (D.Kan.1996) (citing Sandin, 515 U.S. at 486). Plaintiff has not described conditions or restrictions so atypical in type or duration as to amount to a federal constitutional violation. In any event, an inmate's placement in segregated confinement for brief intervals at various times involves classification decisions purely within the discretion of prison officials, which are not reviewable in federal court. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir.1994). Furthermore, plaintiff has no constitutional right to written notice and a hearing prior to every security classification change.
Mr. Harrison complains of other conditions in the segregation unit including "decreased vocational and therapeutic opportunities;" no operable heating unit; "disregard" for his medical conditions, including high blood pressure and chronic asthma, until October 27, 2008, when he was "finally seen by a facility nurse;" and that his property, including his asthma pump, was placed on "investigatorial hold" in defendant Roberts' office. He claims the status or placement caused harm to his overall progress review concerning parole issues; prevented him from adequately pursuing rehabilitation through substance abuse programs; prevented him from earning good conduct credit and "industrial credit days" to decrease his time in prison
Plaintiff specifically complains that he has made several requests "to be placed on any educational, vocational and or job assignment list" but was informed that due to his sentence, the security level of the facility, and a lengthy waiting list he would be "limited to a basic sanitation job assignment whenever a position became available." He also alleges he filed many grievances regarding his medical care, and was told by "counsler (sic) Ms. T. Tinsley" that he would not be assigned a job because "medical denied to clear him as a result of the grievances that he filed regarding his surgery issue."
A prison official violates the Eighth Amendment's prohibition against cruel and unusual punishment only when two requirements are met. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, objectively, the deprivation alleged must be sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities. Id. Second, the official must have acted with a sufficiently culpable state of mind, namely deliberate indifference to inmate health or safety. Id. Thus, "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Id. at 837. The Supreme Court has noted that conditions of confinement may be restrictive and even harsh, without constituting cruel and unusual punishment under the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Plaintiff claims he needs "case law and annotated code of Maryland and Maryland Rules" to "properly assemble" a post-conviction petition. He states he gave the facility's attorney a list of needed cases on three occasions, but received nothing despite filing grievances. He also alleges that on December 9, 2008, a memorandum "issued stating that Maryland law books would be provided for Maryland inmates." He asserts, however, that law books alone are not enough to constitute adequate access to the courts for one "who lacks legal knowledge and understanding." Finally, he alleges he intended to file his post-conviction petition pro se, but due to the inadequate library has had to obtain assistance from the public defenders' office.
It is well-established that a prison inmate has a constitutional right of access to the courts. However, to assert a claim of denial of court access, an inmate must satisfy the standing requirement of "actual injury" by showing that the alleged denial of legal resources actually hindered his efforts to pursue a nonfrivolous claim. Lewis v. Casey, 518 U.S. 343, 348, 350-352 (1996)(The inmate must "go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim," causing him "actual injury."); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.1996). It is not enough to simply state that he was provided insufficient time in the prison law library or that the library is inadequate. Plaintiff alleges no facts showing actual injury. He may do so by alleging actual prejudice to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim, or that a nonfrivolous legal claim has been dismissed, frustrated or impeded. Id. at 350, 353.
In addition, providing law library facilities to inmates is merely "one constitutionally acceptable method to assure meaningful access to the courts." Id. at 351 (citing Bounds v. Smith, 430 U.S. 817, 830 (1977)). It follows that the inmate represented by counsel, is not entitled to a law library. Plaintiff notes that he has obtained assistance from a public defender attorney.
Moreover, rather than having been denied access, Mr. Harrison managed to file the instant lawsuit in federal court. His complaints regarding lack of immediate access to a law library, and initial difficulties obtaining Maryland legal materials also fail to include any allegations showing actual injury to his pursuit of a non-frivolous legal claim. It follows that plaintiff has failed to state a claim of denial of access to the courts.
Plaintiff's allegations that he was placed in segregation "under the authority of Bruce Roberts," and "to (his) belief of information," under the "directive" and instructions of defendant Assistant Warden Mundt, are conclusory, and barely sufficient to show direct personal involvement by either of these individuals in any of the alleged unconstitutional acts or conditions. Plaintiff's allegations that he received no response from Mundt and Daugherty are clearly insufficient to show their personal involvement in acts that presumably preceded any grievance. Plaintiff alleges no participation by defendants Richardson or Daugherty in any complained — of events. Plaintiff's allegations that defendant Warden Richardson was, or should have been, apprised of circumstances but failed to react and address "the policy or custom correctly" and thereby allowed illegal acts are likewise conclusory. These statements, and plaintiff's claims that defendant Richardson is legally responsible for his subordinates' acts, and was "grossly negligent" in managing the persons he supervises, improperly assert liability of defendant Richardson based upon his supervisory capacity rather than his actual participation in any illegal acts.
Plaintiff shall be given time to show cause why this action should not be dismissed for the reasons stated herein. If he does not respond to this Order within the time allotted, this action may be dismissed without further notice.
Ronald M. Ackridge, Carmel, NY, pro se.
Richard D. Lane, Esq., Marshall Dennehey Warner Coleman & Goggin, New York, NY, Counsel for Defendants Captain Roberts, Chaplain Office, Sergeant Tosi, and County of Westchester.
Joseph P. Wodarski, III, Esq., Bradley L. Wilson, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP, Stamford, CT, Counsel for Defendant Aramark Correctional Services, LLC.
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
Plaintiff arrived at WCDOC on February 4, 2016, at approximately 8:27 p.m. (Id.) WCDOC "processed [Plaintiff] to be of the Jewish faith" and Plaintiff "filled out [a] religious diet request for [k]osher meals." (Id.) For 18 days, from his February 4, 2016 date of admission until dinner on February 23, 2016, Plaintiff did not receive kosher meals. (Id. ¶ 11.)
According to Plaintiff, "Aramark, the Chaplain Office, and [WC]DOC systemically [sic] and routinely practice discrim[in]atory acts against Jewish inmates/detaine[e]s [by] denying Jewish detainees their request for kosher meal[s]." (Id. ¶ 10.) Additionally "[WC]DOC and [Westchester] County [were] well aware of the fact that Aramark has in the past, systemically [sic] denied Jewish inmates/detainees their religious [k]osher dietary meals, [b]ecause Plaintiff ha[d] on other prior occasions had to file grievances[] before Aramark would provide Plaintiff with his religious [k]osher dietary meals." (Id. ¶ 12.)
Plaintiff also alleges that he was denied "regular, weekly, Jewish services." (Id. ¶ 10.) Specifically, Plaintiff alleges he was permitted to attend only one Jewish religious service for Passover since his arrival at WCDOC on February 4, 2016, in violation of RLUIPA. (Id. ¶ 13.) According to Plaintiff, "[WC]DOC and [Westchester] County allow[] [the] Chaplain Office to disregard Jewish inmates/detainees rights to regular and/or weekly Jewish religious services." (Id.) Plaintiff made numerous requests and filed grievances regarding the lack of regular Jewish services. (Id.) Tosi denied Plaintiff's grievance, quoting § 7024.1(d) of the Minimum Standards, requiring that "equal status and protection shall be afforded all prisoners in the exercise of their religious beliefs, except when such exercise results in facility expenditures which are unreasonable or disproportionate to those extended to other prisoners for similar purposes." (Am. Compl. Ex. G ("Apr. 9, 2016 Grievance Response") (quoting 9 N.Y.C.R.R. § 7024.1(d)).) The response noted that WCDOC "does not house enough Jewish [i]nmates to warrant separate Jewish services," and that Rabbi Horowitz was instructed "to see to Plaintiff's religious needs." (Id.)
Plaintiff requests a judgment that Defendants violated his rights under federal and state law. (Id. 6.) Plaintiff also seeks $5,000,000 in compensatory damages and $5,000,000 in punitive damages, as well as attorney's fees and litigation expenses. (Id.)
Plaintiff filed his initial Complaint on August 8, 2016 against Aramark Correctional Food Service, Westchester County Department of Correction, and Captain Roberts. (Compl. (Dkt. No. 2).) That same day, he filed a request to appear in forma pauperis, (Dkt. No. 1), which the Court granted, (Dkt. No. 5).
On October 14, 2016, Plaintiff filed a "Notice of Motion for Summary Judgment," (Dkt. No. 19), along with a memorandum of law, supporting exhibits, and statement of material facts, (Dkt. Nos. 20, 21). On October 19, 2016, Plaintiff filed a supplemental memorandum of law. (Dkt. No. 22.) Pursuant to a memo endorsement, on October 20, 2016, the Court denied the Motion for Summary Judgment without prejudice, as discovery had not yet been conducted, and for failure to follow the Court's individual practices before filing a motion. (Dkt. No. 23.) In response to the denial, Plaintiff wrote to the Court on October 25, 2016 asking that the case proceed. (Dkt. No. 24.) Pursuant to a memo endorsement, on October 27, 2016, the Court informed Plaintiff that a Rule 16 conference would be scheduled once service was complete. (Dkt. No. 25.)
On October 27, 2016, the Court granted Plaintiff leave to file the Amended Complaint pursuant to a Memo Endorsement. (Dkt. No. 26.) On October 31, 2016, the Amended Complained was docketed, alleging claims against Westchester County Department of Correction, Captain Roberts, the Chaplain Office, Sergeant Tosi, and Westchester County. (Dkt. No. 27.) On January 19, 2017, Plaintiff wrote the Court requesting a Rule 16 Conference and renewed his demand for summary judgment. (Dkt. No. 33.) The Court scheduled a conference for February 15, 2017. (Dkt. No. 34.)
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his [or her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, alteration, and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmedme accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (alteration and internal quotation marks omitted). Instead, a complaint's "[factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, and a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face," id. at 570, if a plaintiff has not "nudged [his or her] claim[] across the line from conceivable to plausible, the[] complaint must be dismissed," id.; see also Iqbal, 556 U.S. at 679 ("Determining whether a complaint states a plausible claim for relief will . . . be a context — specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not `show[n]—that the pleader is entitled to relief.'" (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678-79 ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").
"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) ("In addressing the sufficiency of a complaint we accept as true all factual allegations. . . ." (internal quotation marks omitted)); Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013) ("In reviewing a dismissal pursuant to Rule 12(b)(6), we . . . accept all factual allegations in the complaint as true. . . ." (alteration and internal quotation marks omitted)). Further, "[f] or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all reasonable inferences in favor of the plaintiff." Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)).
Generally, "[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F v. Isr. Disc. Bank of N., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted). However, when the complaint is pro se, the Court may consider "materials outside the complaint to the extent that they are consistent with the allegations in the complaint," Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted), including, "documents that a pro se litigant attaches to his opposition papers," Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted), statements by the plaintiff "submitted in response to [a] defendant's request for a pre-motion conference," Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and "documents that the plaintiff[] either possessed or knew about and upon which [he or she] relied in bringing the suit," Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
County Defendants move to dismiss Plaintiff's Amended Complaint on several grounds: (1) that Plaintiff failed to allege that his sincerely held religious beliefs were substantially burdened as is required to state a First Amendment claim; (2) that Plaintiff failed to allege the personal involvement of Roberts and Tosi; (3) that Roberts and Tosi cannot be sued in their official capacities; (4) that Plaintiff failed to allege a violation of the Establishment Clause, Fifth Amendment, Eighth Amendment, or Fourteenth Amendment; (5) that Plaintiff failed to allege the existence of any policy or practice that caused the alleged harms under Monell v. Department of Social Services, 436 U.S. 658 (1978); (6) that Plaintiff's RLUIPA claim fails because RLUIPA does not provide for monetary damages; (7) that the Court should decline to exercise supplemental jurisdiction over the state law claims; (8) that Plaintiff has failed to state a claim for violation of the New York Constitution; (9) that Plaintiff's claim under the Minimum Standards §§ 7009.4 and 7024.6 fails because the Minimum Standards do not provide a private right of action; (10) that Plaintiff's claims pursuant to New York Civil Rights Law 40-c fails because prisons are not covered by the statute; (11) that Plaintiff's claim for a declaratory judgment is moot; and (12) Westchester County Department of Correction and the Chaplain Office are not entities subject to suit. (See generally Cty. Defs.' Mem.)
Due to the significant overlap in the claims regarding the delay in receiving kosher meals against County Defendants and Aramark, the Court first determines whether Aramark was acting under the color of state law and can be sued under § 1983. Then, the Court addresses the claims against County Defendants and Aramark together where appropriate.
Aramark argues that Plaintiff's claims against it must be dismissed because it is not a state actor. (Def. Aramark's Mem. 7-9.)
Here, Plaintiff brings suit alleging constitutional violations against Aramark, a private entity. Therefore, the Court must assess whether Plaintiff has adequately alleged that he was injured by a private party acting under color of state law. In the Second Circuit, there are three circumstances under which a private entity is said to act under color of state law. The Second Circuit has described these circumstances as follows:
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296 (2001)). "The fundamental question that underlies each of these tests is whether the challenged actions of the private actor are `fairly attributable' to the state." Watson v. Grady, No. 09-CV-3055, 2015 WL 2168189, at *9 (S.D.N.Y. May 7, 2015) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). Although Plaintiff has arguably offered little in terms of facts that bear upon the question directly, the Amended Complaint nonetheless includes sufficient allegations for the Court to find the presence of state action under either the close nexus or public function tests. Specifically, Plaintiff alleges that Defendant prepared meals for WCDOC, including kosher meals. (Am. Compl. ¶¶ 9-10, 12.)
To satisfy a claim under the "close nexus" test, a plaintiff must allege "a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (internal quotations omitted). In determining whether such a nexus exists, courts must "analyze whether the state can be fairly held responsible for private conduct by virtue of the ties between the state and private actor." Pagan, 2014 WL 982876, at *24 (internal quotation marks omitted); see also Preston v. New York, 223 F.Supp.2d 452, 465 (S.D.N.Y. 2002) (same), aff'd sub nom. Preston v. Quinn, 87 Fed.Appx. 221 (2d Cir. 2004). Courts have found such a nexus where a private organization performs services that "flow[] directly from the obligations of the government entity and [are] performed under its supervision." Pagan, 2014 WL 982876, at *25; see also West v. Atkins, 487 U.S. 42, 54-55 (1988) (finding state action where a physician provided medical services to inmates pursuant to a contract with the state); Wilson v. Phoenix House, No. 10-CV-7364, 2011 WL 3273179, at *3 (S.D.N.Y. Aug. 1, 2011) (concluding that the defendant in — patient substance abuse treatment center was state actor under the close nexus test). Perhaps unsurprisingly, a number of courts have found that, where Aramark contracts with a prison to provide food to inmates, a sufficiently close nexus exists. See, e.g., Torres, 2015 WL 9077472, at *4-6 (finding close nexus satisfied for First Amendment claims regarding Aramark's provision of Ramadan meals); Best v. Aramark Corr. Servs., LLC, No. 14-CV-243, 2014 WL 4980553, at *3 (S.D. Ind. Oct. 6, 2014) (applying close nexus test in context of the plaintiff's claim that Aramark "failed to provide him with constitutionally adequate meals" and concluding that it "[could not] hold that Aramark is not a state actor in these circumstances subject to liability under § 1983"); Pagan, 2014 WL 982876, at *24 ("[T]here is a sufficiently close nexus between the County . . . and Aramark's actions such that the conduct of Aramark is attributable to the state itself."); Juheh v. Dart, No. 11-CV-3873, 2011 WL 6010267, at *2 (N.D. Ill. Nov. 29, 2011) ("Aramark has voluntarily assumed the function of providing nutritionally adequate food to inmates and may be subject to [§] 1983 liability if its conduct violated the inmate's constitutional right to adequate food."); Jones v. Aramark Food Servs., No. 11-CV-15, 2011 WL 3203524, at *5 n.3 (D. N.J. July 27, 2011) (describing the close nexus test and concluding that "[t]he [c]omplaint appears to allege facts that Aramark . . . may have been acting under color of state law, as required to state a § 1983 claim"); but see James v. Correct Care Solutions, No. 13-CV-19, 2013 WL 5730176, at *8-9 (S.D.N.Y. Oct. 21, 2013) (concluding Aramark was not a state actor where employed to provide food services at Westchester County Jail).
Even if state action could not be found under the close nexus test, it would nonetheless exist due to the public function test. Under that test, the conduct of an otherwise private party will be treated as state action if it is "so clearly governmental in nature as to amount to a public function." Jordan v. Fed. Bureau of Prisons, No. 09-CV-8561, 2013 WL 1143617, at *12 (S.D.N.Y. Mar. 19, 2013) (internal quotation marks omitted). "The mere fact that a private actor is paid by state funds, or is hired by a state actor, is insufficient to establish state action" under the public function test. Emanuel v. Griffin, No. 13-CV-1806, 2013 WL 5477505, at *5 (S.D.N.Y. Oct. 2, 2013). "The public function test as applied is quite stringent and under the doctrine an extraordinarily low number of . . . functions have been held to be . . . public." Doe v. Harrison, 254 F.Supp.2d 338, 343 (S.D.N.Y. 2003) (internal quotation marks omitted). Nevertheless, a number of courts to have considered the question have concluded that "[p]roviding food service . . . to . . . incarcerated people is one part of the government function of incarceration," thus rendering food service providers state actors for purpose of § 1983 analysis. McCullum v. City of Phila., No. 98-CV-5858, 1999 WL 493696, at *3 (E.D. Pa. July 13, 1999); see also Sutton v. City of Phila., 21 F.Supp.3d 474, 482 (E.D. Pa. 2014) (same); Pagan, 2014 WL 982876, at *24 (same). Indeed, many—although not all—courts to have considered the question have concluded that Aramark, when it feeds prisoners, is a state actor under the public function test. See, e.g., Torres, 2015 WL 9077472, at *6 (finding public function satisfied for First Amendment claims regarding Aramark's provision of Ramadan meals); Pagan, 2014 WL 982876, at *24 ("Aramark is serving a public function in providing daily meals to inmates."); Smego v. Aramark Food Servs. Corp., No. 10-CV-3334, 2013 WL 1987262, at *6 (C.D. Ill. May 13, 2013) ("The Aramark [d]efendants are state actors because they have voluntarily assumed the obligation to fulfill an essential state function: feeding detainees in a state facility."); Jubeh, 2011 WL 6010267, at *2 (finding that a county "has a duty to provide nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to detainees' health and well being," and concluding Aramark was a state actor where that duty was outsourced to it (alterations and internal quotation marks omitted)); but see James, 2013 WL 5730176, at *9 (noting the public function test but concluding that the complaint offered no basis to treat Aramark as a state actor).
Because providing food to inmates is a public function, see Torres, 2015 WL 9077472, at *6; Pagan, 2014 WL 982876, at *24, and because Plaintiff's Amended Complaint relates to the meals that Aramark, acting as the state's culinary surrogate, provided to the prisoners, (see Am. Compl. ¶¶ 9-10, 12), the Court concludes that Plaintiff has plausibly alleged that Aramark is a state actor for purposes of this case.
The PLRA does, however, "contain[] its own, textual exception to mandatory exhaustion." Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). The Supreme Court recently explained:
Id. at 1858-59 (quoting Booth, 532 U.S. at 737-38).
There are "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. at 1859. First, an "administrative procedure is unavailable when . . . it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. Second, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. Third, an administrative remedy may be unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. These three circumstances "do not appear to be exhaustive," Williams v. Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), but they do "guide the Court's inquiry," Khudan v. Lee, No. 12-CV-8147, 2016 WL 4735364, at *5 (S.D.N.Y. Sept. 8, 2016).
A plaintiff need not plead that one of these three circumstances exists or that he did in fact exhaust her administrative remedies, because the "[failure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement." Williams, 829 F.3d at 122. Defendants bear the burden of proving that Plaintiff failed to exhaust any available administrative remedies. See McCoy v. Goord, 255 F.Supp.2d 233, 248 (S.D.N.Y. 2003) ("[The] defendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion with particularity."); see also Williams, 829 F.3d at 122 ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints." (internal quotation marks omitted)). Thus, a motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted only if "nonexhaustion is clear from the face of the complaint." Lovick v. Schriro, No. 12-CV-7419, 2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (alterations and internal quotation marks omitted); see also Lee v. O'Harer, No. 13-CV-1022, 2014 WL 7343997, at *3 (N.D.N.Y. Dec. 23, 2014) ("Dismissal under Rule 12(b) (6) for failure to exhaust is appropriate if such failure is evidenced on the face of the complaint and incorporated documents."); Sloane v. Mazzuca, No. 04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006) ("[B]y characterizing non-exhaustion as an affirmative defense, the Second Circuit suggests that the issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss." (internal quotation marks omitted)).
Westchester County and Aramark argue that the Amended Complaint should be dismissed for failure to allege a municipal policy, custom, or practice that caused the alleged constitutional violations. (Cty. Defs.' Mem. 15; Def. Aramark's Mem. 5-7.)
"Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691. Thus, "to prevail on a claim against a municipality under [§] 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury." Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). The fifth element reflects the notion that a Monell defendant "may not be held liable under § 1983 solely because it employs a tortfeasor." Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403 (1997); see also Newton v. City of N. Y., 566 F.Supp.2d 256, 270 (S.D.N.Y. 2008) ("As subsequently reaffirmed and explained by the Supreme Court, municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right."). In other words, a municipality may not be liable under § 1983 "by application of the doctrine of respondeat superior." Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (italics omitted).
Although, as discussed above, a private actor like Aramark may be treated as a state actor for purposes of a claim brought pursuant to § 1983, "[p]rivate employers are not liable under § 1983 for the constitutional torts of their employees unless the plaintiff proves that action pursuant to official policy of some nature caused a constitutional tort." Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990) (alterations, citations, and internal quotation marks omitted); Mora v. Camden County, No. 09-CV-4183, 2010 WL 2560680, at *10 (D. N.J. June 21, 2010) ("[I]n order for an entity such as Aramark to be liable under § 1983, [the p]laintiffs must show that the entity had a relevant policy or custom, and that the policy caused the constitutional violation"); cf. Salvatierra v. Connolly, No. 09-CV-3722, 2010 WL 5480756, at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing claim against municipal agencies where the plaintiff did not allege that any policy or custom caused the deprivation of his rights), adopted by 2011 WL 9398 (S.D.N.Y. Jan. 3, 2011); Arnold v. Westchester Cty., No. 09-CV-3727, 2010 WL 3397375, at *9 (S.D.N.Y. Apr. 16, 2010) (dismissing claim against the county because the complaint did "not allege the existence of an unconstitutional custom or policy"), adopted sub nom. Arnold v. Westchester Cty. Dep't of Corr., 2010 WL 3397372 (S.D.N.Y. Aug. 25, 2010). In determining whether a private employer may be liable in a § 1983 claim, courts are guided by the principles articulated in Monell and its progeny. See Rojas, 924 F.2d at 409 ("Although Monell dealt with municipal employers, its rationale has been extended to private businesses."); see also Gitter v. Target Corp., No. 14-CV-4460, 2015 WL 5710454, at *3 n.4 (S.D.N.Y. Sept. 29, 2015) ("The Second Circuit has extended Monell's rationale to private businesses"); Dilworth v. Goldberg, No. 10-CV-2224, 2011 WL 3501869, at *24 (S.D.N.Y. July 28, 2011) ("[C]ase law has extended the Monell doctrine to private § 1983 defendants acting under color of state law." (alterations and internal quotation marks omitted)), adopted by 2011 WL 4526555 (S.D.N.Y. Sept. 30, 2011).
Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted); Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (describing methods of establishing Monell liability); see also Ryan v. Cty. of Nassau, No. 12-CV-5343, 2018 WL 354684, at *3 (E.D.N.Y. Jan. 10, 2018) ("In order for a municipality . . . to be liable for deliberate indifference to medical needs under Monell . . . the plaintiff must show that the action that caused the constitutional violation was undertaken pursuant to an official policy." (citation and internal quotation marks omitted)). Moreover, a plaintiff also must establish a causal link between the municipality's policy, custom, or practice and the alleged constitutional injury. See City of Okla. v. Tuttle, 471 U.S. 808, 824 n. 8 (1985) ("The fact that a municipal `policy' might lead to `police misconduct' is hardly sufficient to satisfy Monell's requirement that the particular policy be the `moving force' behind a constitutional violation. There must at least be an affirmative link between[, for example,] the training inadequacies alleged, and the particular constitutional violation at issue."); Simms v. City of N., 480 Fed.Appx. 627, 629 (2d Cir. 2012) (the plaintiff "must `demonstrate that, through its deliberate conduct, the [entity] itself was the moving force behind the alleged injury.'" (internal quotation marks and alteration omitted)). Normally, "a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the [municipality]." Newton, 566 F. Supp. 2d at 271 (S.D.N.Y. 2008); see also Tuttle, 471 U.S. at 823-24 ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." (plurality opinion)); Brogdon v. City of New Rochelle, 200 F.Supp.2d 411, 427 (S.D.N.Y. 2002) ("A single incident by itself is generally insufficient to establish the affirmative link between the municipal policy or custom and the alleged unconstitutional violation.").
At this stage, of course, Plaintiff need not prove these elements, but he must still plead them sufficiently to make out a plausible claim for relief. Although there is no heightened pleading requirement for complaints alleging municipal liability under § 1983, see Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993), a complaint does not "suffice if it tenders naked assertion[s] devoid of further factual enhancement," Iqbal, 556 U.S. at 678 (alteration in original) (internal quotation marks omitted). Thus, to survive the Motions, Plaintiff cannot merely allege the existence of a policy or custom but "must allege facts tending to support, at least circumstantially, an inference that such a municipal policy or custom exists." Santos v. New York City, 847 F.Supp.2d 573, 576 (S.D.N.Y. 2012).
Plaintiff has failed to plausibly allege that the delay in receiving kosher meals was the result of a policy, custom, or practice that violated Plaintiff's Free Exercise rights. There are at least two circumstances that courts have expressly identified as constituting a municipal policy: "where there is an officially promulgated policy as that term is generally understood," and "where a single act is taken by a municipal employee who, as a matter of [s]tate law, has final policymaking authority in the area in which the action was taken." Newton, 566 F. Supp. 2d at 271. "A municipal `custom,' on the other hand, need not receive formal approval by the appropriate decisionmaker," id., but "may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law," Kucharczyk v. Westchester County, 95 F.Supp.3d 529, 539 (S.D.N.Y. 2015) (internal quotation marks omitted). "To prevail on this theory of municipal liability, . . . a plaintiff must prove that the custom at issue is permanent and well-settled," Tiernan, 2015 WL 1379652, at *16, which is to say, that it is "a longstanding practice or custom which constitutes the standard operating procedure of the local government entity," Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (internal quotation marks omitted). "Widespread means that [the unconstitutional acts in question] are common or prevalent throughout the [municipality]; wellsettled means that the [unconstitutional acts in question] have achieved permanent, or close to permanent, status." Davis v. City of New York, 228 F.Supp.2d 327, 346 (S.D.N.Y. 2002).
Here, Plaintiff alleges Westchester County "pursued a policy and custom of deliberate indifferences of the rights, needs[,] and laws of Jewish detainees/inmates." (Am. Compl. ¶ 14; see also ¶ 26 (same).) Plaintiff also alleges that WCDOC "systemically [sic] and routinely . . . den[ies] Jewish detainees their request[s] for kosher meal[s]," (Am. Compl. ¶ 10), and "sys[]temically and routinely make[s] Jewish detainees wait 3 to 6 weeks before providing them with [k]osher dietary meals," (id. ¶ 12.) Additionally, Plaintiff asserts that the "procedures for supervising and assuring that Jewish inmates/detainees are provided with religious [k]osher dietary meals" is insufficient, (id. ¶ 14), and WCDOC "took no steps to assure that incoming Jewish inmates/detainees receiv[d] their [k]osher dietary meals upon entry," (id. ¶ 12). Finally, Plaintiff alleges that Westchester County "was well aware of the fact that Aramark . . . denied Jewish inmates/detainees" and took no "steps to prevent Aramark from deny[ing] giving Jewish inmates/detainees their [k]osher dietary meals, in a timely fashion, upon entry into [WC]DOC." (Id.)
Plaintiff neither cites nor describes any official municipal policy or practice, nor does he allege that any individual had official policymaking authority and took action pursuant to that authority. Additionally, the Complaint is devoid of any facts that support the existence of a tacit, widespread custom sufficient to sustain a claim for relief under Monell. "Conclusory allegations that there was such a policy or custom, without identifying or alleging supporting facts, is insufficient to state a claim." Maynard v. City of New York, No. 13-CV-3412, 2013 WL 6667681, at *4 (S.D.N.Y. Dec. 17, 2013); see also Ricciuti v. N. Y. Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991) (reaffirming "that an allegation of municipal policy or custom would be insufficient if wholly conclusory"); Guerrero v. City of New York, No. 12-CV-2916, 2013 WL 673872, at *2 (S.D.N.Y. Feb. 25, 2013) ("At the pleading stage, the mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." (alteration and internal quotation marks omitted)); 5 Borough Pawn, LLC v. City of New York, 640 F.Supp.2d 268, 300 (S.D.N.Y. 2009) (dismissing a Monell claim where the "plaintiffs fail[ed] to allege any facts showing that there is a [c]ity policy—unspoken or otherwise—that violates the Federal Constitution"); cf. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (holding that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning").
Plaintiff has also failed to plausibly allege that the lack of regular Jewish services was the result of a policy, custom, or practice that violated Plaintiff's Free Exercise rights. (See Compl. ¶¶ 10, 13-15.) Plaintiff alleges that the decision not to hold regular Jewish services, as outlined in the April 9, 2016 response to his grievance, (April 9, 2016 Grievance Response), was unconstitutional, (Am. Compl. ¶ 10), and that Westchester County has "allow[ed the] Chaplain Office to disregard Jewish inmates/detainees[s] right to regular and/or weekly Jewish religious services," (id. ¶ 13). According to Plaintiff, Westchester County did not prevent the Chaplain Office from "wrongful[ly] and unlawfully denying Jewish inmates/detainees . . . regular Jewish services." (Id. ¶ 15.) A municipality may be subject to § 1983 liability for acts of its officials "who have final policymaking authority" in the area in which the action was taken. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (internal quotation marks omitted). However, Plaintiff fails to allege who made the decision to not hold regular Jewish services. Sergeant Tosi responded to Plaintiff's grievance, but Plaintiff does not suggest he was "a municipal employee who, as a matter of State law, has final policymaking authority in the area in which the action was taken." Newton, 566 F. Supp. 2d at 271. And, to the extent the "Chaplain Office" was responsible for the decision, Plaintiff fails to allege the Chaplain Office is considered a policymaker under state law or to identify an individual in the Chaplain Office with policymaking authority that was responsible for the decision. See Pignone v. Vill. of Pelham Manor, No. 10-CV-2589, 2014 WL 929805, at *4 (S.D.N.Y. Mar. 6, 2014) (noting that "[a] plaintiff bears the burden of establishing an official's status as a final policymaker with proof of the official's scope of employment and his role within the municipal or corporate organization"). Accordingly, Plaintiffs claims against Westchester County alleging a policy or custom of not holding regular Jewish services are dismissed.
Apart from Aramark's arguments that it is not acting in concert with a state actor or a state actor such that Monell does not apply to its actions, (see Def. Aramark's Mem. 7-9), Aramark further argues that Plaintiff has failed to allege a causal link between the alleged § 1983 violation and an alleged Aramark policy or custom sufficient to support a Monell claim, (see id. at 5-6).
The Amended Complaint asserts that Aramark "systemically [sic] and routinely practices discrim[in]atory acts against Jewish inmates/detaine[e]s in denying Jewish detainees their request[s] for kosher meal[s]," (Am. Compl. ¶ 10), and that "Aramark has in the past, systemically [sic] denied Jewish inmates/detainees their religious [k]osher dietary meals[,] [b]ecause . . . Plaintiff ha[d] on other prior occasions had to file grievances, before Aramark would provide Plaintiff with his religious kosher dietary maels [sic]." (Id. ¶ 12.) Plaintiff does not allege the existence of an Aramark policy or custom under any of the prongs identified in Brandon, 705 F. Supp. 2d at 276-77. In fact, the Amended Complaint indicates that WCDOC was responsible for Plaintiff's intake and religious registration process and that WCDOC policy determines what meals prisoners were served based on the information provided at registration. (Am. Compl. ¶ 9.) The Amended Complaint makes no allegation that Aramark was involved in ensuring Plaintiff was registered to receive the religious dietary accommodations he was constitutionally due or had any independent ability to give Plaintiff kosher meals if the prison has not yet approved him to receive them. Additionally, Plaintiff does not allege that Aramark even knew about Plaintiff's religious dietary restrictions and nonetheless failed to serve him kosher meals. These allegations are insufficient to allege that an Aramark policy was "the `moving force' behind a constitutional violation." Accordingly, Aramark's Motion is granted as to the § 1983 claims.
"It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show . . . the defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). To establish personal involvement, a plaintiff must show that:
Id. at 139 (alterations, italics, and internal quotation marks omitted). In other words, "because vicarious liability is inapplicable to 1983 suits, a plaintiff must plead that each Government — official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. Therefore, Plaintiff must plausibly allege conduct by Roberts and Tosi that falls into one of the five categories identified above. See Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL 365493, at *4 (S.D.N.Y. Jan. 24, 2017) (holding that the five categories "still control[] with respect to claims that do not require a showing of discriminatory intent" post-Iqbal).
Plaintiff has failed to plausibly allege Roberts' personal involvement in the alleged constitutional deprivations. The gravamen of the claims against Roberts is that he "denied Plaintiff's grievance about his failure to receive kosher meals for eighteen days." (Am. Compl. ¶ 16(e) (citing Feb. 29, 2016 Grievance Response.)) In reality, Roberts responded to Plaintiff's request on February 22, 2016 for a written decision regarding Plaintiff's grievance filed on February 15, 2016. ("Feb. 22, 2016 Grievance"). The written response stated that loin February 23, 2016 Sgt. Omess contacted Father Paul Tolve [("Father Tolve")] and had it approved for you to receive a kosher meal which was delivered later that day and continues to be delivered on a daily basis." (Feb. 29, 2016 Grievance Response.) Accordingly, because Plaintiff was approved for kosher meals and continued to receive kosher meals, the grievance was "accepted" and the "complaint rectified." (Id.) Thus, Plaintiff could not appeal the decision and the matter was deemed completed. (Id.) The Amended Complaint contains no allegations whatsoever that Roberts was involved in or somehow permitted Plaintiff to be denied kosher meals prior to his grievance being rectified, or that he even knew Plaintiff was denied kosher meals. To the extent Roberts was even informed of the violation through the February 15, 2016 grievance, Roberts did not "fail[] to remedy the wrong," Grullon, 720 F.3d at 139 (internal quotation marks omitted), rather, the February 22, 2016 grievance response indicates the wrong was remedied.
Additionally, the Amended Complaint lacks any allegation that Roberts failed to intervene in the denial of kosher meals by failing to remedy a known wrong or "exhibit[ing] deliberate indifference" to Plaintiff's rights "by failing to act on information indicating that unconstitutional acts were occurring." Grullon, 720 F.3d at 139 (italics and internal quotation marks omitted). Nor does Plaintiff allege that Roberts personally was aware that WCDOC had a history of denying inmates kosher meals, such that the Court could reasonably infer that Roberts knew Plaintiff would be denied kosher meals. See id. at 139 (listing as categories of personal involvement when a defendant allows "a policy or custom" of unconstitutional practices to continue or when he "was grossly negligent in supervising subordinates who committed the wrongful acts") (internal quotation marks omitted). The Court therefore grants Roberts' Motion to Dismiss for lack of personal involvement.
Plaintiff has plausibly alleged Tosi's personal involvement in the alleged constitutional deprivations. The gravamen of the claims against Tosi is that Tosi denied Plaintiff's grievance seeking separate Jewish services. (Am. Compl. ¶ 16(f) (citing Apr. 9, 2016 Grievance Response).) Relying on Minimum Standard § 7024.1(d), which provides that "equal status and protection shall be afforded all prisoners in the exercise of their religious beliefs, except when such exercise results in facility expenditures which are unreasonable or disproportionate to those extended to other prisoners for similar purpose," Tosi's grievance response states that "[t]he Westchester County Department of Correction does not house enough Jewish Inmates to warrant a separate Jewish service. The director of Pastoral Care Father Paul Tolve is aware of your issue and has instructed Rabbi Horowitz to see to your religious needs." (Apr. 9, 2016 Grievance Response).
The Second Circuit noted in dictum some years ago that it is "questionable whether an adjudicator's rejection of an administrative grievance would make him liable for the conduct complained of." McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). Since then, "courts in [the Second] Circuit are divided regarding whether review and denial of a grievance constitutes personal involvement in the underlying alleged unconstitutional act." Burton v. Lynch, 664 F.Supp.2d 349, 360 (S.D.N.Y. 2009); see also Thomas v. Calero, 824 F.Supp.2d 488, 507-08 (S.D.N.Y. 2011) (discussion division and collecting cases); Garcia v. Watts, No. 08-CV-7778, 2009 WL 2777085, at *15-16 (S.D.N.Y. Sept. 1, 2009) (same).
Thomas, 824 F. Supp. 2d at 507 (internal quotation marks and citations omitted).
Here, Plaintiff has sufficiently alleged an "ongoing" constitutional violation regarding his lack of access to regular Jewish services at the time he filed the grievances. See infra Part II.B.5. And, Tosi, as the supervisory official who reviewed the grievance, could have remedied it directly. Thomas, 824 F. Supp. 2d at 507; see also Young v. Choinski, 15 F.Supp.3d 172, 192 (D. Conn. 2014) (noting that "if the supervisory official is confronted with an ongoing constitutional violation and reviews a grievance or appeal regarding that violation, that official is "personally involved" if he or she can remedy the violation directly" (internal quotation marks omitted)); Phillip v. Schriro, No. 12-CV-8349, 2014 WL 4184816, at *5 (S.D.N.Y. Aug. 22, 2014) (contact from grievance committee to wardens regarding repeated denial of attendance at religious services sufficiently alleged ongoing violation defendant could remedy); cf. Burton v. Lynch, 664 F.Supp.2d 349, 363 (S.D.N.Y. 2009) (finding no ongoing violation for grievance regarding alleged beating that "relates to a past harm which has ceased"). Thus, the Court cannot say that Plaintiff's claim against Tosi fails as a matter of law. The Court therefore denies Tosi's Motion to Dismiss for lack of personal involvement.
Defendants argue that the Amended Complaint fails to state a Free Exercise claim under the First Amendment. (Cty. Defs.' Mem. 4-9; Def. Aramark's Mem. 10-11.) The Free Exercise Clause of the First Amendment is an "unflinching pledge to allow our citizenry to explore . . . religious beliefs in accordance with the dictates of their conscience." Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984). "Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause," Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003), which includes "a constitutional right to participate in congregate religious services," Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (citing Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.), cert. denied, 492 U.S. 909 (1989)); see also Pugh v. Goord, 571 F.Supp.2d 477, 511 (S.D.N.Y. 2008) (finding that prisoners "are entitled to a reasonable opportunity to worship").
"To be entitled to protection under the free exercise clause of the First Amendment, a prisoner must make a threshold showing that the disputed conduct substantially burdened his sincerely held religious beliefs." Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *9 (S.D.N.Y. Mar. 30, 2015) (internal quotation marks omitted); see also Salahuddin v. Goord, 467 F.3d 263, 274-45 (2d Cir. 2006) ("The prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs.").
"[A] substantial burden exists where the state puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." Id. at 477 (alterations and internal quotation marks omitted); Gilliam, 2017 WL 476733, at *4 (same). The Second Circuit has further specified that "[t]he relevant question in determining whether [the plaintiff's] religious beliefs were substantially burdened is whether participation in the [religious activity], in particular, is considered central or important to [the plaintiff's religious] practice." Ford, 352 F.3d at 593-94. Once the plaintiff satisfies this burden, the defendants then "bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct," although "the burden remains with the prisoner to show that these articulated concerns were irrational." Salahuddin, 467 F.3d at 275 (alterations and internal quotation marks omitted). The burden then shifts back to the plaintiff "to show that these articulated concerns were irrational." Id. (alteration and internal quotation marks omitted).
Defendant argues that "the legitimate penological interests pertaining to cost . . . justified the lack of regular Jewish services at WCDOC." (Cty. Defs.' Mem. 7.) More specifically, County Defendants point out that in response to Plaintiff's grievance, Plaintiff was informed that WCDOC does not house enough Jewish inmates to warrant a separate Jewish service, and doing so would result in a cost that is unreasonable or disproportionate to those extended to other prisoners for similar purposes. (Id.)
While keeping prison operating costs down may be a "legitimate governmental objective," see, e.g., Simmons v. Robinson, No. 07-CV-7383, 2010 WL 5538412, at *10 (S.D.N.Y. Jan. 28, 2010) ("[I]t is well established that [the state] has a legitimate interest in cost-effectively meeting the religious dietary needs of multiple inmate groups."), adopted, 2011 WL 31066 (S.D.N.Y. Jan. 4, 2011), the record at this point does not allow a thorough review of the other relevant factors the Court must consider in determining whether there is a penological interest that justified the burden, such as "alternative means of [receiving Jewish services]; the impact on guards, inmates, and prison resources of accommodating [regular Jewish services]; and the existence of alternative means of facilitating [regular Jewish services] that have only a de minimis adverse effect on valid penological interests," Holland v. Goord, 758 F.3d 215, 222-23 (2d Cir. 2014) (quoting Salahuddin, 467 F.3d at 274 (stating courts must consider these four factors in evaluating the legitimate penological interest)).
County Defendants argue Plaintiff's Fifth Amendment claims should be dismissed, because the Fifth Amendment does not apply to claims against state actors. (Defs.' Mem. 11.) County Defendants are correct that "[t]he Fifth Amendment . . . applies only to proceedings by the Federal Government." United States v. Ng, 699 F.2d 63, 69 (2d Cir. 1983) (internal quotation marks omitted). Accordingly, the Court grants County Defendants' Motion to Dismiss the Fifth Amendment claims.
Were the Court to liberally construe Plaintiff's Fifth Amendment claims as a Fourth Amendment Due Process Claim, that too would fail. In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that "[w]here a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham, 490 U.S. at 395); see also Medeiros v. O'Connell, 150 F.3d 164, 169 (2d Cir. 1998) (same). Here, Plaintiff's claims are covered by the First and Eighth Amendments. Accordingly, any Fourteenth Amendment Due Process Claim, to the extent one has been pled, is dismissed.
Defendants argue that Plaintiff has failed to state an Eighth Amendment claim for cruel or unusual punishment.
Plaintiff has failed to plead that the conditions he faced —both the denial of kosher meals and religious services —alone or in combination, "pose[d] an unreasonable risk of serious damage to his health." Walker, 717 F.3d at 125. Plaintiff chose not to eat the non-kosher meals provided to him. (Feb. 22, 2016 Grievance.) However, "[h]e has not been denied the meals by . . . [D]efendants. While . . . [P]laintiff's allegations regarding preparation of the meals and compliance with Jewish dietary law are relevant to concerns under the First Amendment and RLUIPA," addressed elsewhere in this opinion, "the allegations do not suggest that the meals were not nutritionally adequate or were dangerous to [P]laintiff's health." Hayes v. Bruno, 171 F.Supp.3d 22, 34 (D. Conn. 2016), reconsideration denied, No. 14-CV-1203, 2016 WL 10545502 (D. Conn. Dec. 22, 2016); see also Ward, 2009 WL 102928, at *7 ("In this case, [the plaintiff] has failed to establish an Eighth Amendment claim based upon denial of kosher meals during his transport . . . he has neither proven the existence of imminent danger to his health and well-being nor an actual injury . . . Additionally, when [the plaintiff] brought the situation to an officer's attention, the officer . . . attempted to remedy the problem." (footnote and citation omitted)). And, lack of access to religious services is not a sufficiently serious denial of a "basic human need" and did not expose Plaintiff to sufficiently serious risk of harm. See Walker, 717 F.3d at 125 (describing "basic human needs" as "food, clothing, medical care, and safe and sanitary living conditions"); see also Seymore v. Dept of Corr. Servs., No. 11-CV-2254, 2014 WL 641428, at *3 (S.D.N.Y. Feb. 18, 2014) ("[T]he Second Circuit . . . has explained that because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient to sustain a conditions-of-confinement claim." (alteration and internal quotation marks omitted)). Thus, Plaintiff fails allege a sufficiently serious deprivation required to state an Eighth Amendment claim. See Jones v. Smith, No. 09-CV-1058, 2015 WL 5750136, at *1-2 (N.D.N.Y. Sept. 30, 2015) (denial of hot, low sodium kosher meals does not violate Eighth Amendment); see also Modlenaar v. Liberatore, No. 07-CV-6012, 2009 WL 2179661, at *5 (W.D.N.Y. July 22, 2009) (denial of kosher food for six days does not violate the Eighth Amendment) (citing cases). Accordingly, the Court grants County Defendants' Motion to Dismiss the Eighth Amendment claims.
County Defendants argue Plaintiff's Equal Protection claim should be dismissed because the Amended Complaint does not allege discriminatory intent. (Defs.' Mem. 13-15.) "The Equal Protection Clause of the Fourteenth Amendment requires that all persons similarly situated be treated in the same manner." Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir. 1996). In other words, "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) (internal quotation marks and emphasis omitted); see also Bailey v. Town of Evans, 443 F.Supp.2d 427, 430 (W.D.N.Y. 2006) (same). To state a violation of the Equal Protection Clause, a plaintiff must allege "that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005); see also Barrow v. Van Buren, No. 12-CV-1268, 2015 WL 417084, at *22 (N.D.N.Y. Jan. 30, 2015) (same); Nash v. McGinnis, 585 F.Supp.2d 455, 462 (W.D.N.Y. 2008) ("In order to plead a facially valid equal protection claim . . . [a] plaintiff must allege: (1) that he has been treated differently from similarly — situated inmates, and (2) that the discrimination is based upon a constitutionally impermissible basis, such as race, religion, national origin, or some other protected right.").
County Defendants seek dismissal of Plaintiff's allegations pursuant to RLUIPA because RLUIPA does not authorize claims for monetary damages against state officers in either their official or individual capacities. (See Cty. Defs.' Mem. 16.) RLUIPA "protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). "RLUIPA does not authorize claims for monetary damages against state officers in either their official or individual capacities." Holland, 758 F.3d at 224 (citing Washington, 731 F.3d at 145-46); see also Keitt v. Hawk, No. 13-CV-850, 2015 WL 1246058, at *11 (N.D.N.Y. Jan. 8, 2015) (same). Instead, a plaintiff may only seek injunctive relief. See Holland, 758 F.3d at 224; see also Fortress Bible Church v. Feiner, 734 F.Supp.2d 409, 520 (S.D.N.Y. 2010) ("It is readily apparent that injunctive relief constitutes appropriate relief under RLUIPA." (internal quotation marks omitted)). Because Plaintiff only seeks money damages under RLUIPA, this claim is dismissed.
Defendants contend that the Court should decline to exercise jurisdiction over the state law claims if the federal claims are dismissed, or in the alternative, that the state law claims lack merits. (See Cty Defs.' Mem. 17-19; Def. Aramark's Mem. 12-13.) Because the Court has not dismissed all of federal claims, the Court maintains supplemental jurisdiction over the state law claims and turns to the merits.
County Defendants argue that Plaintiff's Free Exercise Claim under Article I § 3 of the New York Constitution should be dismissed on the same grounds as the First Amendment Free Exercise Claim. (Cty. Defs.' Mem. 17.) While "the issue of identicality between federal and New York State constitutional protection [is] an open one," New Creation Fellowship of Buffalo v. Town of Cheektowaga, N. Y, No. 99-CV-460, 2004 WL 1498190, at *79 (W.D.N.Y. July 2, 2004), aff'd sub nom. 164 Fed.Appx. 5 (2d Cir. 2005), there is significant overlap between the two claims.
Pursuant to Article I § 3 of the New York Constitution, "[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind." N.Y. Const. art. I, § 3. "This free exercise right has expressly been extended to those incarcerated in New York correctional facilities by section 610 of the Correction Law." Rivera v. Smith, 472 N.E.2d 1015, 1019-20 (N.Y. 1984) (citing N.Y. Correct. Law § 610). "Notwithstanding the importance of this right, it does not prevent the imposition of reasonable restrictions by prison officials, but rather such restrictions must be weighed against the institutional needs and objectives being promoted." Id. "The nature of a correctional facility, where confinement and order are necessary, is such that inmates cannot be afforded free exercise rights as broad as those enjoyed outside the prison setting." Id. Thus, in evaluating a claim under Article I § 3 of the New York Constitution, the Court must balance "the interest of the individual right of religious worship against the interest of the State which is sought to be enforced." People ex rel. DeMauro v. Gavin, 706 N.E.2d 738, 739 (N.Y. 1998).
For the same reasons the Court found the allegations sufficient to state a violation of Plaintiff's Free Exercise rights for the delay in receipt of kosher meals and lack of regular Jewish religious services, the Court finds Plaintiff has alleged a violation of Article I § 3 of the New York Constitution. However, at this stage in the proceeding, for the same reasons as the federal claims, the Court cannot properly balance Plaintiff's "interests of . . . religious worship against the interest of' Westchester County. Gavin, 706 N.E.2d at 739. What "institutional needs and objectives [are] being promoted," Rivera, 472 N.E.2d at 1020, by the restrictions Plaintiff complains of are open questions that can be discussed at a later date in a motion for summary judgment. Thus, County Defendants' Motion is denied as to this claim.
County Defendants argue that Plaintiff's reference to New York Civil Rights Law § 40-c fails to state a claim for relief under the statute. (Cty. Defs.' Mem. 19.) The Court agrees that jails and prisons are not defined as "places of public accommodation" or "amusement" under the statute. N.Y. Civ. Rights Law § 40. Thus, the Court grants County Defendants' Motions to Dismiss this claim.
Defendant Aramark argues that Plaintiff fails to state a claim for intentional infliction of emotional distress. (Def. Aramark's Mem. 11.) "The state-law tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of N.Y., 78 F.3d 787, 790 (2d Cir. 1996). Plaintiff has not alleged any of these elements in the Amended Complaint, and thus, the Court grants Defendant Aramark's Motions to Dismiss this claim.
For the foregoing reasons, as to Westchester County, the Motion to Dismiss the Amended Complaint is granted as to all the claims.
As to the claims against Roberts in his official and individual capacity, the Motion to Dismiss the Amended Complaint is granted as to all the claims.
As to the claims against Tosi in his individual capacity, the Motion to Dismiss the Amended Complaint is granted as to the First Amendment Establishment Clause, Fifth Amendment, Eighth Amendment, and Fourteenth Amendment claims; RLUIPA claims; state law claims pursuant to Minimum Standards §§ 7009.4 and 7024.6; state law claims pursuant to New York Civil Rights Law 40-c; and state law claims for intentional infliction of emotional distress. Tosi's Motion to Dismiss the Amended Complaint is denied as to the First Amendment Free Exercise Claim.
As to the claims against Aramark, the Motion to Dismiss the Amended Complaint is granted as to the First Amendment Free Exercise Clause, First Amendment Establishment Clause, Fifth Amendment, Eighth Amendment, and Fourteenth Amendment claims; RLUIPA claims; state law claims pursuant to Minimum Standards §§ 7009.4 and 7024.6; state law claims pursuant to New York Civil Rights Law 40-c; and state law claims for intentional infliction of emotional distress. Aramrak's Motion to Dismiss the Amended Complaint is denied as to the New York Constitutional claims.
However, because this is the first adjudication of Plaintiff's claims on the merits, the dismissals are without prejudice. Should Plaintiff choose to file a Second Amended Complaint, he must do so within 30 days of this Opinion. Plaintiff should include within that Second Amended Complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. The Second Amended Complaint will replace, not supplement, the Amended Complaint. The Second Amended Complaint must contain all of the claims and factual allegations Plaintiff wishes the Court to consider. The Court will not consider factual allegations contained in supplemental letters, declarations, or memoranda. If Plaintiff fails to abide by the 30-day deadline, this Action may be dismissed with prejudice.
Andre Lovell Dotson, Memphis, TN, pro se.
Jean E. Markowitz, Law Office Of Jean E. Markowitz, Pablo Adrian Varela, Ryan Andrew Strain, Baker Donelson Bearman Caldwell & Berkowitz, Memphis, TN, Cameron S. Hill, Baker Donelson Bearman Caldwell & Berkowitz, Chattanooga, TN, for Defendants.
JAMES D. TODD, District Judge.
There is no mystery about why Plaintiff filed this case initially in state court. Dotson has filed more than three cases in this district that have been dismissed as frivolous or for failure to state a claim. See Dotson v. Gilless, No. 00-2229-BBD-ja (W.D.Tenn. Mar. 29, 2000) (ECF No. 3, order dismissing case and imposing sanctions). In addition to recognizing Dotson as a three-strike filer under 28 U.S.C. § 1915(g), the order in case number 00-2229 barred Plaintiff from filing any lawsuit in this district without leave of court (id. at 15-17) and advised him that "[a]ny complaint submitted by plaintiff without this motion [for leave to file] and [supporting] affidavit will not be filed but will be immediately returned to the plaintiff for failure to comply with this order" (id. at 16).
Dotson subsequently filed several suits in state court that were removed to this Court. On January 9, 2002, a suit filed by Dotson in the Shelby County Circuit Court was removed. In an order issued on January 17, 2002, then — United States District Judge Bernice B. Donald dismissed the complaint for want of subject-matter jurisdiction and as frivolous. Dotson v. Gilless, No. 02-2013-BBD-dkv (W.D.Tenn. Jan. 17, 2002) (ECF No. 2, order dismissing complaint). In that order, Judge Donald reaffirmed the sanctions that had previously been imposed and sanctioned Dotson $150 on the ground that he had "flagrantly avoided complying with the Court's order in [case number 00-2229] despite the warning that failure to comply would result in the imposition of sanctions, including a monetary fine. . . ." Id. at 13 (internal quotation marks omitted).
A second case filed by Dotson was removed to this Court on February 12, 2002. In an order issued on April 23, 2002, then — United States District Judge Julia Smith Gibbons dismissed the case for failure to state a claim. Dotson v. Gilless, No. 02-2086-JSG-ja (W.D.Tenn. Apr. 23, 2002) (ECF No. 3, order dismissing case). That order also reaffirmed the sanctions imposed in case number 00-2229 and imposed the following, additional restriction:
(Id. at 14.) Dotson was also fined $150. (Id.)
A third case filed in state court by Dotson was removed to this Court on August 1, 2003. In an order issued on January 29, 2004, United States District Judge Samuel H. Mays, Jr. dismissed the case for failure to state a claim. Dotson v. Shelby Cnty., No. 03-2566-SHM-tmp (W.D.Tenn.) (ECF No. 4). Judge Mays declined to sanction Dotson because the complaint arguably alleged that he was in imminent danger of serious physical injury. (Id. at 12-13 n. 5.)
Since the commencement of this action, the parties have filed many documents and motions. On October 10, 2013, Plaintiff filed a "Notice of Motion to Objection to the Defendants [sic] Notice of Removal," which appears to argue that the Notice of Removal violates the Anti-Injunction Act, 28 U.S.C. § 2283. (ECF No. 3.) Defendants Oldham and Moore filed a response to Plaintiff's filing on October 30, 2013 (ECF No. 10), and Aramark filed its response on November 4, 2013 (ECF No. 11).
On November 7, 2013, the Clerk docketed Plaintiff's Motion to Remand the Case to State Court. (ECF No. 13.) On November 18, 2013, responses to the Motion to Remand were received from Aramark and from Defendants Oldham and Moore, respectively. (ECF Nos. 16 & 17.)
On November 13, 2013, Plaintiff filed a motion, titled "Motion for Leave to File an Amended Remand the Case to State Court" (ECF No. 14), which appears to be a motion to amend the Motion to Remand. On November 25, 2013, Aramark filed a response to the motion to amend. (ECF No. 21.) The "Motion for Leave to File an Amended Remand the Case to State Court" is GRANTED. The Court will consider the argument presented in that filing in evaluating Plaintiff's Motion to Remand.
The removal statute, 28 U.S.C. § 1441(a), provides:
Under 28 U.S.C. § 1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Plaintiff's complaint asserts claims under three federal statutes and the First Amendment to the United States Constitution and, therefore, this Court has original jurisdiction. Oldham and Moore were, therefore, entitled to remove the case to federal court.
On November 13, 2013, Defendants Oldham and Moore filed a Motion to Refer Pro-Se Prisoner's Complaint for Review Pursuant to 28 U.S.C. § 1915A and Stay Response Dates or in the Alternative for an Extension of Time to Respond. (ECF No. 15.) On November 22, 2013, Aramark joined in this motion. (ECF No. 20.) On December 4, 2013, Aramark filed a Motion to Stay Discovery Pending the Court's Ruling on Aramark's Motion to Dismiss. (ECF No. 23.)
On November 20, 2013, Plaintiff filed a Motion for Appointment of Counsel. (ECF No. 18.) On December 4, 2013, Defendants Oldham and Moore filed a response in opposition to the Motion that also objected to certain exhibits to Plaintiff's Motion. (ECF No. 22.) On December 5, 2013, Aramark joined the response filed by Oldham and Moore. (ECF No. 25.) The Court declines to strike the exhibits to Plaintiff's Motion and has considered them to the extent they are relevant to the request for the appointment of counsel.
Pursuant to 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." However, "[t]he appointment of counsel in a civil proceeding is not a constitutional right." Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir.2002) ("[T]he plaintiff's were not entitled to have counsel appointed because this is a civil lawsuit."); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir.1993) ("There is no constitutional or . . . statutory right to counsel in federal civil cases. . . ."). Appointment of counsel is "a privilege that is justified only by exceptional circumstances." Lavado, 992 F.2d at 606 (internal quotation marks and citation omitted). "In determining whether `exceptional circumstances' exist, courts have examined the type of case and the abilities of the plaintiff to represent himself. This generally involves a determination of the complexity of the factual and legal issues involved." Id. at 606 (internal quotation marks and citations omitted). Appointment of counsel is not appropriate when a pro se litigant's claims are frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanherry, 752 F.2d 254, 256 (6th Cir.1985)); see also Cleary v. Mukasey, 307 F. App'x 963, 965 (6th Cir.2009) (same).
On January 2, 2014, Plaintiff filed a Motion for Leave to File an Amended Complaint, accompanied by his proposed amended complaint, which was intended to supersede, rather than to supplement, his original complaint. (ECF No. 33.) Aramark filed its response in opposition on January 16, 2014. (ECF No. 35.)
On February 10, 2014, Plaintiff filed a motion, titled "Petition for a Writ of Habeas Corpus Ad Testificandum," that seeks a hearing in this matter commencing August 8, 2014. (ECF No. 41.) That motion is not well taken and is DENIED.
On March 17, 2014, Plaintiff filed a Motion to Lift Stay of Discoveries. (ECF No. 45.)
On June 2, 2014, Plaintiff filed a Motion to Compel Discovery. (ECF No. 49.) Aramark responded to the Motion on June 10, 2014 (ECF No. 51), and Oldham and Moore filed their response on June 12, 2014 (ECF No. 52). Because discovery in the matter has been stayed, the motion to compel is DENIED.
On January 23, 2014, the Clerk issued a letter setting a trial date of August 18, 2014, in this matter. (ECF No. 37.) On June 18, 2014, Defendants filed a Joint Motion and Supporting Memorandum to Continue both the trial date and the pre-trial order deadline until screening is completed. (ECF No. 54.) Plaintiff responded to the Motion on July 7, 2014. (ECF No. 55.) The setting letter was erroneously issued while the case was stayed; therefore, the Motion to Continue is GRANTED.
Before addressing the remaining motions, the Court has considered, as a preliminary matter, whether Dotson is eligible to litigate this claim in federal court despite his designation as a three-strike filer and the sanctions that were imposed on him in case numbers 00-2229 and 02-2086. Twenty-eight U.S.C. § 1915(g) provides:
The Sixth Circuit has not addressed whether a district court can dismiss removed claims because the prisoner-plaintiff is a three-strike filer. Several courts in other jurisdictions that have considered the issue have permitted removed cases by three-strike filers to proceed. See Gay v. Chandra, 682 F.3d 590, 596 (7th Cir.2012) ("The PLRA's three-strikes obstacle does not apply in state courts, where Gay filed this suit."); Howard v. Braddy, No. 5:12-CV-404 (MTT), 2013 WL 5461680, at *4 (M.D.Ga. Sept.30, 2013) (denying motion to dismiss under § 1915(g) because "[t]he clear language of the statute applies only to actions in forma pauperis. . . . The Court will not construe 28 U.S.C. § 1915(g) to apply to non-in forma pauperis cases. . . .") (report and recommendation adopted by district court); Gray v. Cardoza, No. CIV S-05-2611
It is unnecessary for the Court to resolve whether a removed case can be dismissed sua sponte under 28 U.S.C. § 1915(g) because, even if § 1915(g) applied to removed actions, the complaint arguably comes with the "imminent danger" exception to that provision.
In his original complaint, Plaintiff alleges that he was booked into the Jail on November 28, 2012. During intake, Plaintiff stated that he is a "striving Muslim who practice Islam as his religiously way of life." (ECF No. 1-1 at 2.)
Chaplain Muhammad initially responded to Plaintiff that Defendant Moore was working on his request for a religious diet. Subsequently, on or about January 5, 2013, Muhammad told Plaintiff that Defendant Moore had said that, because only non-pork meats are served at the Jail, Plaintiff will have to eat the same meals that are served to other inmates. (Id.) Plaintiff has exhausted his administrative remedies. (Id. at 3-4.)
Under some circumstances, a refusal to provide a religiously sanctioned diet might satisfy the "imminent danger" requirement of § 1915(g). "The cases bear out that prison administrators must provide an adequate diet without violating the inmate's religious dietary restrictions. For the inmate, this is essentially a constitutional right not to eat the offending food item. If the prisoner's diet, as modified, is sufficient to sustain the prisoner in good health, no constitutional right has been violated." Alexander v. Carrick, 31 F. App'x 176, 179 (6th Cir.2002) (collecting cases); see also Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir.2010) (same). Because the original complaint alleges that Plaintiff has refused to eat certain items and is rapidly losing weight, it adequately alleges that Plaintiff was in imminent danger of serious physical injury when he commenced this action. Therefore, Plaintiff is entitled to litigate this case in federal court despite his status as a "three-strike" filer.
The Court will now proceed to screen Plaintiff's amended complaint under 28 U.S.C. § 1915A(b). The amended complaint purports to assert claims under RLUIPA, RFRA, the Tennessee Constitution, and the First Amendment to the United States Constitution. (ECF No. 33-1 at 6-7, ¶¶ 26-29; see also id. at 1.) The claims against Defendants Oldham and Moore are now asserted against them in their individual capacities. (Id. at 2, ¶¶ 5-6.) The claim about the failure to serve halal meals is essentially identical to the claim in the original complaint. (Id. at 3-5, ¶¶ 10-22; see also ECF No. 1-1 at 2-4.)
The amended complaint also asserts a new claim arising from the failure to provide disposable razors. According to Plaintiff, disposable razors have been "taken . . . out of the system and replaced . . . with electric clippers. . . ." (ECF No. 33-1 at 5-6, ¶ 23.) This change allegedly violates the religious rights of Muslim prisoners, who are required, inter alia, to shave the hair from below their navels" and "depilate the [] hair from the arm pits." (Id.) The preamble to the amended complaint explains that the electric clippers "makes it impossible for the plaintiff to privately remove those hairs." (Id. at 1.) The prayer for relief seeks injunctive relief and compensatory and punitive damages. (Id. at 7-9.)
28 U.S.C. § 1915A(b).
In assessing whether the complaint in this case states a claim on which relief may be granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b) (6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.2010). "Accepting all well-pleaded allegations in the complaint as true, the Court `consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.' Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). "[P]leadings that . . . are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 ("Rule 8(a)(2) still requires a `showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only `fair notice' of the nature of the claim, but also `grounds' on which the claim rests.").
"A complaint can be frivolous either factually or legally. Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted." Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)).
Id at 471.
"Pro se complaints are to be held `to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed." Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir.2004)). Pro se litigants and prisoners are not exempt from the requirements of the Federal Rules of Civil Procedure. As the Sixth Circuit has explained:
Wells v. Brown, 891 F.2d 591, 594 (6th Cir.1989); see also Brown v. Matauszak, 415 F. App'x 608, 612, 613 (6th Cir.2011) (affirming dismissal of pro se complaint for failure to comply with "unique pleading requirements" and stating "a court cannot `create a claim which [a plaintiff] has not spelled out in his pleading'") (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975)) (alteration in original); Payne v. Secretary of Treas., 73 F. App'x 836, 837 (6th Cir.2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir.2011) ("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.").
The Tennessee Court of Appeals has held that there is no private right of action for damages under the Tennessee Constitution. See Bowden Bldg. Corp. v. Tenn. Real Estate Comm'n, 15 S.W.3d 434, 444-45 (Tenn.Ct.App.1999), perm. app. denied (Tenn. Feb. 14, 2000); Lee v. Ladd, 834 S.W.2d 323, 324-25 (Tenn.Ct.App. Mar.4, 1992). The Sixth Circuit has held the same. See Cline v. Rogers, 87 F.3d 176, 179-80 (6th Cir.1996); see also Peterson v. Dean, No. 3:09-cv-628, 2009 WL 3517542, at *1 (M.D.Tenn. Oct.23, 2009) ("Tennessee does not allow for a private right of action for damages based on violations of the Tennessee Constitution" (emphasis omitted)); Alexander v. Beale Street Blues Co., 108 F.Supp.2d 934, 945 (W.D.Tenn.1999).
Plaintiff's claim under the Free Exercise Clause of the First Amendment is properly brought under 42 U.S.C. § 1983, which provides a right of action against state officials who violate a plaintiff's rights under the United States Constitution or federal law.
"Inmates clearly retain protections afforded by the First Amendment . . ., including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (citation omitted). However, "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. . . . The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives including deterrence of crime, rehabilitation of prisoners, and institutional security." Id. (internal quotation marks, alteration and citation omitted); see also Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) ("The very object of imprisonment is confinement. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration."). Thus, "when a prison regulation imposes on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests," Turner v. Salley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and is not an "exaggerated response to such objectives,'" id. (internal quotation marks omitted); see also Overton, 539 U.S. at 132.
In this case, Plaintiff complains that the Jail has refused to serve him halal meats. Instead, Jail policy attempts to accommodate the religious beliefs of Muslim prisoner by serving only non-pork meats. Muslim prisoners do not have a constitutional right to require Jail officials to provide a diet containing halal meat. "Prison administrators must provide an adequate diet without violating the inmate's religious dietary restrictions. For the inmate, this is essentially a constitutional right not to eat the offending food item. If the prisoner's diet, as modified, is sufficient to sustain the prisoner in good health, no constitutional right has been violated." Alexander, 31 F. App'x at 179 (collecting cases). The Sixth Circuit has held in an unpublished opinion that provision of a vegetarian diet adequately protects Muslim inmates. Abdullah v. Fard, No. 97-3935, 1999 WL 98529, at *1 (6th Cir. Jan.28, 1999) ("Abdullah averred that a prohibition against non-Halal meat was fundamental to his religion. However, he can comply with this prohibition by eating vegetarian meals. Thus, Abdullah's First Amendment claim fails because the disputed policy does not force him to violate his religion."); see also Abdul-Aziz v. Ricci, F. App'x ____, 2014 WL 2699758, at *3 (3d Cir.2014) ("Abdul-Aziz has presented evidence establishing only that any meat eaten by Muslims must be Halal, not that Halal meats must be eaten on feast days. Therefore his First Amendment rights were not violated, nor were his Fourteenth Amendment rights.");
The RLUIPA provides, in pertinent part, that:
42 U.S.C. § 2000cc-1(a). The Court of Appeals has set forth the standard for evaluating an inmate's claim under the RLUIPA:
Hayes v. Tennessee, 424 F. App'x 546, 554-55 (6th Cir.2011) (internal quotation marks, alteration and additional citations omitted).
The Court will assume that a halal diet is a "religious exercise" within the meaning of the RLUIPA. The term "religious exercise" "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). Thus, the "RLUIPA bars inquiry into whether a particular belief or practice is `central' to a prisoner's religion," but it "does not preclude inquiry into the sincerity of a prisoner's professed religiosity." Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). The Court will also assume that Plaintiff's desire for a halal diet is sincere.
A prison does not impose a substantial burden on a Muslim inmate's exercise of his religion where he has an alternative to eating non-halal meat. See, e.g., Cloyd., 2012 WL 5995234, at *4 ("[A]s long as a plaintiff is given an alternative to eating non-halal meat, he does not suffer a `substantial burden' to his religious beliefs under the RLUIPA."); Hudson v. Caruso, 748 F.Supp.2d 721, 730 (W.D.Mich.2010) ("Furthermore, there is no `substantial burden' to plaintiff's religious beliefs under RLUIPA, because they are given alternatives to eating non-halal meat. While plaintiff's may want to have halal meat entrees rather than vegetarian entrees and non-meat substitutes, their food preferences, as prisoners, are limited." (citations omitted)); cf. Heard v. Caruso, 351 F. App'x 1, 10 (6th Cir.2009) ("If Heard's religion requires adherence to a Nation-of-Islam diet, prison officials' refusal to accommodate this diet would impose a substantial burden.").
The complaint also asserts claims under the Free Exercise Clause and the RLUIPA arising from the requirement that Muslim inmates remove the hair from their armpits and below their navels. (ECF No. 33-1 at 5-6, ¶ 23.) According to Dotson, the Jail has replaced disposable razors with electric clippers. (Id.) Because the complaint does not allege that Dotson's religion forbids the use of electric clippers to remove body hair, there is no allegation that his rights under the Free Exercise Clause or the RLUIPA have been violated. That the use of electric clippers might somehow reduce an inmate's privacy is not akin to requiring him to violate his religious beliefs.
Therefore, the Court DISMISSES Plaintiff's claims under the Tennessee Constitution and RFRA for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1). The Court also DISMISSES Plaintiff's § 1983 and RLUIPA claims arising from the failure to provide disposable razors, pursuant to 28 U.S.C. § 1915A(b)(1). The only remaining claims are the § 1983 Free Exercise Claim and the RLUIPA claim arising from the failure to provide a halal diet.
It is now appropriate to address Aramark's Motion to Dismiss, which was filed on November 22, 2013. (ECF No. 19.) Plaintiff responded to the motion on December 18, 2013. (ECF No. 29.) Aramark filed its reply on January 15, 2014. (ECF No. 34.)
In its Motion to Dismiss, Aramark first argues that the RFRA is inapplicable to it. (ECF No. 19-1 at 7-8.) The Court has already dismissed the RFRA claim against all parties; therefore, it is unnecessary to address this argument. Next, Aramark argues that Plaintiff's Free Exercise claim should be dismissed because he does not have a direct cause of action arising under the First Amendment. (ECF No. 19-1 at 8-9.) The Court has already held that Plaintiff's Free Exercise claim is properly construed as arising under 42 U.S.C. § 1983. This aspect of Aramark's motion is DENIED.
Aramark also asserts that Plaintiff's RLUIPA and Free Exercise claims must be dismissed because Plaintiff has not alleged that Aramark acts under color of state law. (ECF No. 19-1 at 9-13.) "A § 1983 plaintiff may not sue purely private parties." Brotherton v. Cleveland, 173 F.3d 552, 567 (6th Cir.1999). Thus, "[i]n order to be subject to suit under § 1983, [a] defendant's actions must be fairly attributable to the state." Collyer v. Darling, 98 F.3d 211, 231-32 (6th Cir.1997). "In the Sixth Circuit, `it is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison inmates may be sued under § 1983 as one acting under color of state law.'" Johnson v. Aramark, No. 3:11-CV-P517-M, 2012 WL 219503, at *2 n. 3 (W.D.Ky. Jan.25, 2012) (quoting Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993)), aff'd, 482 F. App'x 992 (6th Cir.2012). Construed liberally, the amended complaint alleges that Aramark operates inside the Jail to provide food services to inmates. (ECF No. 33-1 at 2, ¶¶ 7-8; id. at 4-5, ¶¶ 19-20.)
Aramark has not addressed whether the legal standard used in those jurisdictions holding that it is not a state actor is the same as that in the Sixth Circuit. The only decisions the Court has located in this circuit addressing the status of Aramark have assumed, for purposes of screening, that Aramark is a state actor. Johnson, 2012 WL 219503, at *2 n. 3; Grimes v. Aramark Corr. Servs. Co., No. 5:10CV-P43-R, 2010 WL 4638780, at *3 n. 4 (W.D.Ky. Nov. 5, 2010) (same); Lucas v. Aramark Corrs. Food Serv., No. 3:08CV-P310-H, 2010 WL 59194, at *1 n. 2 (W.D.Ky. Jan.5, 2010) (same); Crow v. Dailey, No. 3:06CVP176-S, 2006 WL 2734433, at *2 n. 1 (W.D.Ky. Sept.21, 2006) (same); see also Wilson v. ABL Food Servs., No. 3:11-0530, 2012 WL 3779472, at *5 (M.D.Tenn. Aug.7, 2012) (holding, on a motion for summary judgment, that "Defendant ABL, a corporation that contracts with the State to provide food to inmates, is considered a state actor for purposes of § 1983") (report and recommendation), adopted, 2012 WL 3779470 (M.D.Tenn. Aug.30, 2012).
Next, Aramark seeks dismissal of the Free Exercise claim because Plaintiff has not sufficiently alleged that he was injured due to an Aramark policy or custom. The Sixth Circuit has applied the standards for assessing municipal liability to claims against private corporations that operate prisons or provide care to prisoners. Thomas v. Coble, 55 F. App'x 748, 748-49 (6th Cir.2003); see also Johnson v. Corr. Corp. of Am., 26 F. App'x 386, 388 (6th Cir.2001); Street v. Corr. Corp. of Am., 102 F.3d 810, 817-18 (6th Cir.1996). Aramark "cannot be held liable under a theory of respondeat superior." Braswell v. Corr. Corp. of Am., 419 F. App'x 622, 627 (6th Cir.2011). Instead, to prevail on a § 1983 claim against Aramark, Plaintiff "must show that a policy or well-settled custom of the company was the `moving force' behind the alleged deprivation" of his rights. Id.; see also Bruederle v. Louisville Metro Gov't, 687 F.3d 771, 777 (6th Cir.2012) (same), cert. denied, ___ U.S. ___, 133 S.Ct. 866, 184 L.Ed.2d 678 (2013).
The amended complaint alleges that requests for religious diets must be submitted to the chaplain, "who must verify it, then send it to the assistant chief of Programs or designee, who then must approve of the diet." (ECF No. 33-1 at 3, ¶ 12.) The Muslim chaplain forwarded a request for Plaintiff to receive halal meals (id. at 3-4, ¶ 14), and Defendant Moore allegedly denied Plaintiff's request because the Jail serves a non-pork diet to all inmates (id. at 4, ¶ 16). These allegations suggest that it is the Jail's policy, rather than any decision by Aramark, that prevents Plaintiff from receiving a halal diet.
To be sure, the amended complaint contains some allegations about Aramark, but it is unclear what point Plaintiff is attempting to make. He alleges as follows:
(Id. at 4-5, ¶¶ 19-20; see also id. at 5, ¶ 22 (alleging that an Aramark lawyer sent Plaintiff a letter stating that the company was not covered under the Tennessee Open Records Act)).
Paragraphs 19 and 21 pertain only to Aramark's responses to correspondence and questions raised by Plaintiff. (Id at 4-5.) Paragraph 20 appears to be unrelated to Plaintiff's claim that he has not been provided with a halal diet at the Jail. (Id. at 5.) The relevance of the allegations about the "type of meat" served by Aramark is unclear. For purposes of Plaintiff's claims in this action, the "type of meat" is important only insofar as the meat is or is not halal. Because Plaintiff's request for a halal diet was denied by Defendant Moore, the Court has assumed that Plaintiff has adequately alleged that he is not receiving halal meat.
Aramark has moved to dismiss the RLUIPA claim against it on the ground that Plaintiff has not sufficiently alleged that Aramark has imposed a substantial burden on his exercise of religion. (ECF No. 19-1 at 16-17.) The basis for this aspect of the motion is that Plaintiff "does not allege that Aramark has any input whatsoever in deciding whether he should receive a religious diet." (Id. at 17.) This argument is well taken. The amended complaint alleges that Defendant Moore made the decision to deny Plaintiff's request for a religious diet. This aspect of Aramark's Motion to Dismiss is GRANTED. This dismissal also is without prejudice to his right to file a second amended complaint that cures the deficiency if the facts so warrant.
Aramark has also moved to dismiss Plaintiff's claims because he has no constitutional right to receive halal meat. (Id. at 17-18.) The Court has declined to dismiss the Free Exercise claim despite the fact that Plaintiff has no right to compel any party to provide him with a halal diet. This aspect of Aramark's Motion to Dismiss is DENIED.
Finally, Aramark argues that Plaintiff has failed to comply with the statutory filing requirements under Tennessee Code Annotated § 41-21-805. (ECF No. 19-1 at 18-20.) Aramark has not cited any decision holding that a prisoner suit that is removed to federal court may be dismissed for failure to comply with that provision. The decision in Pence v. TMNO Healthcare, LLC, No. 13-1199, 2013 WL 5550862 (W.D.Tenn. Oct.8, 2013), on which Aramark relies, arose in an entirely dissimilar context, involving a defendant's objection to a plaintiff's motion to voluntarily dismiss a removed case without prejudice and consideration of whether such a dismissal would deprive the defendant of an absolute defense.
It is unclear whether, if a motion to dismiss on the basis of Plaintiff's failure to submit the affidavit required by § 41-21-805 had been filed in state court, Plaintiff would have been permitted to cure that defect. The case is no longer in state court, the filing fee has been paid by Defendants Oldham and Moore, as the removing parties, and Plaintiff has been given leave to file an amended complaint that does not rely on § 41-21-805. Because Aramark has not demonstrated that it is entitled to dismissal of Plaintiff's complaint on that basis after its removal to federal court, this aspect of the Motion to Dismiss is DENIED.
In summary, Aramark's Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The Free Exercise and RLUIPA claims against Aramark are DISMISSED WITHOUT PREJUDICE to Plaintiff's right to file a second amended complaint that cures the pleading deficiencies.
A response from the remaining Defendants to the pending motion for injunctive relief will be required. Therefore, Defendants Shelby County, Oldham and Moore are ORDERED to file a response to Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction. Both that response and an answer to the amended complaint are due within twenty-one (21) days after the date of this order.
Plaintiff also sued the "Chaplain Office." (Am. Compl. 1.) The Chaplain Office is an administrative arm of the County of Westchester. As such, it does "not have a legal identity separate and apart from the municipality, and cannot sue or be sued." Carroll v. City of Mount Vernon, 707 F.Supp.2d 449, 450 n.2 (S.D.N.Y. 2010) (quoting Warner v. Vill. of Goshen Police Dep't, 256 F.Supp.2d 171, 175-76 (S.D.N.Y. 2003)). Plaintiff's claims against the Chaplain Office must therefore be dismissed. In light of Plaintiff's pro se status and clear intention to assert claims against the County of Westchester, the Court construes the Complaint as asserting claims against the County of Westchester, and directs the Clerk of Court to amend the caption of this Action to replace the Chaplain Office with the County of Westchester.
Plaintiff also sued "Aramark Correctional Food Service." (Am. Compl.) However, Aramark points out this was in error and the proper defendant is "Aramark Correctional Services, LLC." (Def. Aramark's Mem. 1.) The Clerk of the Court is instructed to update the caption accordingly.
Horton v. Sheriff of Cook Cnty., No. 11 C 6064, 2012 WL 5838183, at *3 (N.D.Ill. Nov. 16, 2012). The Court endorses these observations.