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Weinstein v. Woitte, 1:17-cv-02506-CMA-NYW. (2018)

Court: District Court, D. Colorado Number: infdco20180827559 Visitors: 11
Filed: Aug. 14, 2018
Latest Update: Aug. 14, 2018
Summary: RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER 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
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RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER

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 RECOMMENDS that the Motion to Dismiss be GRANTED IN PART and DENIED IN PART.

BACKGROUND

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,1 as well as C.O. Dumell, lead supervisor, and Bret Richard, Chaplin. Mr. Weinstein alleges generally that the food at LCDF was "not certified kosher diets recognized by a Rabbi or anyone of Jewish Religion," and that LCDF personnel "[t]herefore had me engage in a diet that did not adhere to my religious belief." [Id. at 4]. Mr. Weinstein also alleges that Mr. Woitte is "[t]he main person responsible," and, specifically, "responsible for ordering the kosher diet, and making sure it's certified kosher," and that Mr. Woitte "can't provide proof from a Rabbi or a certification that he is serving a kosher diet, he just mixes up different servings and calls it kosher," and he "serves hot food on Shabot (the Sabith) which is not allowed in the Jewish Religion."2 [Id. at 5]. Mr. Weinstein asks for $25,000 in damages, but does not seek any injunctive relief. Following its review of the Amended Complaint under § 1915(e)(2) and Local Rule 8.1, the court ordered that the matter be reassigned to the Honorable Christine M. Arguello, who referred the case to the undersigned Magistrate Judge for pretrial management. See [#11, #12].

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].3 Thus, the case proceeds with Mr. Woitte as the sole Defendant.

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.

LEGAL STANDARDS

I. Federal Rule of Civil Procedure 12(b)(6)

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).

II. Pro Se Litigants

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).

ANALYSIS

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:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C § 2000cc-1(a).4 See also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010). Under RLUIPA, "[a] person may assert a violation of this chapter as claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). See also Stewart v. Beach, 701 F.3d 1322, 1333 (10th Cir. 2012). RLUIPA defines "government," in relevant part, as "(i) a State, county, municipality, or other governmental entity under the authority of a State; (ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and (iii) any other person acting under the color of State law. 42 U.S.C § 2000cc-5(4)(A)(i)-(iii). See also Stewart, 701 F.3d at 1333. RLUIPA "does not provide a cause of action against individual defendants in their individual capacities." Stewart, 701 F.3d at 1334-35.

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.

I. Individual versus Official Capacity and Monetary Damages

A. Individual Capacity

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.

B. Official Capacity

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.5

C. Damages Under RLUIPA

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.

II. Government Actor

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.").6

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").7 The court determined, under the applicable state action test, that there existed a nexus between the challenged conduct and the State, and thus the defendant was properly considered a state actor and his alleged violations of plaintiff's rights in that regard were actionable. Id. at 1171.

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).

CONCLUSION

For the reasons stated herein, this court respectfully RECOMMENDS that:

(1) Defendant's Motion to Dismiss [#45] be GRANTED IN PART and DENIED IN PART; (2) Insofar as Plaintiff alleges a violation of RLUIPA against Defendant Stephen Woitte as an individual, such claim be DISMISSED; (3) Insofar as Plaintiff seeks compensatory damages against Defendant Woitte in his individual or official capacity, such claim for relief be DISMISSED; and (4) Insofar as Plaintiff seeks nominal damages against Defendant Woitte in his official capacity, such claim for relief be allowed to PROCEED.8

Additionally,

IT IS ORDERED that:

1. A Status Conference is set for September 28, 2018 at 3:00 pm in Courtroom A-502, 5th Floor, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. Please remember that anyone seeking entry into the Alfred A. Arraj United States Courthouse will be required to show valid photo identification. See D.C.COLO.LCivR 83.2(b);

2. The Parties should be prepared at that time to discuss pretrial scheduling and discovery in this case; and

3. In light of his failure to respond to the Motion to Dismiss, Plaintiff is specifically advised that failure to appear or otherwise contact the court for the Status Conference may lead to a Recommendation that this action be dismissed without prejudice for failure to prosecute.

2012 WL 219434 Only the Westlaw citation is currently available. United States District Court, D. Colorado. Greg L. GATRELL, Plaintiff, v. CITY AND COUNTY OF DENVER, a municipality, John Doe # 1, Deputy Sheriff of the Denver Police Department, in his individual and official capacities, and JOHN DOE # 2, Deputy Sheriff of the Denver Police Department, in his individual and official capacities, Defendants. Civil Action No. 10-CV-02311-REB-KLM. Jan. 23, 2012.

Attorneys and Law Firms

Greg L. Gatrell, Massillon, OH, pro se.

Stuart L. Shapiro, Denver City Attorney's Office, Denver, CO, for Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, United States Magistrate Judge.

*1 This matter is before the Court on Defendant Denver's Motion for Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) [Docket No. 60; Filed November 10, 2011] and Defendant City and County of Denver's Motion to Dismiss for Failure to Prosecute Pursuant to Fed.R.Civ.P. 41(b) [Docket No. 70; Filed January 4, 2012]. Both Motions are referred to this Court for recommendation. [62, 71]. Plaintiff has not timely filed a Response to the Motion for Judgment on the Pleadings. The Court has reviewed both Motions, the case file, and the applicable law, and is sufficiently advised on the premises. For the reasons stated below, the Court respectfully RECOMMENDS that Defendant Denver's Motion for Judgment on the Pleadings [# 60] be GRANTED and Defendant Denver's Motion to Dismiss [# 70] be DENIED AS MOOT.

I. Summary of the Case

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.

11. Standard of Review

*2 "Judgment on the pleadings should not be granted `unless the moving party clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.'" Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir.2006) (citation omitted). A motion for judgment on the pleadings made pursuant to Fed.R.Civ.P. 12(c) is reviewed under the same legal standard as a motion for failure to state a claim made pursuant to Fed.R.Civ.P. 12(b)(6). Mock v. T G. & Y Stores Co., 971 F.2d 522, 528 (10th Cir.1992). The Rule 12(b)(6) standard tests "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide `plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.2007) (citing Bell Ad Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That is, a complaint must include "enough facts to state a claim to relief that is plausible on its face." TON Services, Inc. v. Qwest Corp., 493 F.3d 1225, 1235 (10th Cir.2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Moreover, "[a] pleading that offers `labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (citation omitted).

"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).

*3 Finally, the Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 594, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his or her] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir.1994).

III. Analysis

A. Defendants Denver and John Doe # 1

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.

B. Defendant John Doe # 2

*4 As stated, Plaintiff's Amended Complaint was filed on October 29, 2010. [# 6]. Pursuant to Fed.R.Civ.P. 4(m), the deadline for service on Defendant John Doe # 2 has been long expired. While Fed.R.Civ.P. 4(c) requires that the Court effect service for a plaintiff proceeding in forma pauperis, such as this Plaintiff, he must still provide sufficient information for the Court to do so. See Hill v. Ortiz, No. 07-cv-00571-LTB-CBS, 2008 WL 2020289, at *6 (D.Colo. May 9, 2008) (unpublished decision). To date, Plaintiff has not provided identifying information to enable the U.S. Marshal to serve Defendant John Doe # 2. At this stage of the litigation, it is clear that Plaintiff cannot provide the necessary information to effect service on Defendant John Doe # 2.

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.

IV. Conclusion

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.

*5 The Court FURTHER RECOMMENDS that Defendant Denver's Motion for Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) [# 60] be GRANTED.

The Court FURTHER RECOMMENDS that Plaintiff's Amended Complaint [# 6] be DISMISSED WITH PREJUDICE in full.

The Court FURTHER RECOMMENDS that Defendant City and County of Denver's Motion to Dismiss for Failure to Prosecute Pursuant to Fed.R.Civ.P. 41(b) [# 70] be DENIED AS MOOT.

IT IS HEREBY ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dept of Corr., 183 F.3d 1205, 1210 (10th Cir.1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir.1996). A party's objections to this 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., 73 F.3d 1057, 1060 (10th Cir.1996).

2015 WL 13614123 Only the Westlaw citation is currently available. United States District Court, D. Colorado. Jonathan (Lane) WOODSTOCK, Plaintiff, v. Lt. S. SHAFFER, Chaplain Bret Rickard, Captain Palmer, and S. Jones, Defendants. Civil Action No. 15-cv-00041-REB-KMT Signed 09/24/2015

Attorneys and Law Firms

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.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Kathleen M. Tafoya, United States Magistrate Judge

*1 This matter is before the court on "Defendants Shaffer and Palmer's Motion for Summary Judgment" (Doc. No. 40 [Mot.], filed May 28, 2015). Plaintiff filed his response June 17, 2015 (Doc. No. 58 [Resp.]) and his declaration in support of his response on June 29, 2015 (Doc. No. 67 [Pl.'s Decl.]). Defendants Shaffer and Palmer filed their reply on July 1, 2015 (Doc. No. 58 [Reply]).

STATEMENT OF CASE

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 STANDARD

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.

ANALYSIS

I. Personal Participation

*2 Defendants Shaffer and Palmer move for summary judgment on Plaintiff's claims against them on the basis that they did not personally participate in the alleged violations. (Mot. at 5-6.)

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.

2. Municipal Liability Claims

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)).

*3 Defendants Palmer and Shaffer are entitled to summary judgment on Plaintiff's municipal liability claims.

3. Qualified Immunity

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.

4. Failure to Exhaust Administrative Remedies

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).

*4 Defendant Palmer explains that the Inmate Handbook for LCJ, a copy of which is given to all inmates upon being booked into the jail, sets forth the administrative process for inmate grievances. (Mot., Attach. 1, ¶ 7.) In a case involving food service at LCJ, the inmate must first file a grievance with the kitchen staff, then must file an appeal with Defendant Shaffer, and finally must file an appeal with Defendant Palmer, whose decision is final. (Id.) Defendant Palmer swears in his Affidavit that four of seven grievances filed by Plaintiff related to portion sizes and the alleged failures in preparing and serving meals consistent with kosher standards. (Id., ¶ 8.) Defendant Palmer states that Plaintiff only followed the entire appeal process as to one of his grievances originally filed by Plaintiff on February 3, 2014, in which Plaintiff complained about being served a beef patty and sausage patty on that date. (Id.) However, Defendant Palmer does not attach any of the grievances to his motion and affidavit. Moreover, Plaintiff attaches to his response an Inmate Grievance/Appeal form, signed by Defendant Palmer on March 3, 2014, in which Plaintiff complains that the "kosher trays [are being] messed with every day in some way," that "[i]t is becoming the norm for the kitchen to mess with the kosher [diet] in some way," and that the LCJ "is showing a pattern of anti-semetic behavior." (Resp. at 14.)

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.

5. RLUIPA Claims Asserted Against Defendants in their Individual Capacities

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.

6. RLUIPA Claims for Injunctive Relief and Money Damages

Defendants Palmer and Shaffer assert that Plaintiff is limited to equitable relief under RLUIPA. (Mot. at 11-12.)

A. Injunctive Relief

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.

B. Money Damages

"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."

*5 Here, Plaintiff seeks compensatory damages from each defendant. (See Compl. at 15-16.) However, Plaintiff fails to allege he suffered any physical or mental injury. (See Compl.) Plaintiff's Complaint fails to allege sufficient facts showing that he suffered a physical injury which would permit him to be awarded compensatory damages for any mental or emotional suffering under the PLRA. Accordingly, Plaintiff cannot recover compensatory damages.

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.

7. Claim for Violation of Civil Rights of Institutionalized Persons Act of 1980

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.1

8. Claim for Violation of Colorado Revised Statute § 17-42-101

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.

9. Claim for Violation of Colorado Constitution Article II, Section 4

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:

The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.

*6 "Colorado law does not contain the statutory equivalent to 42 U.S.C. § 1983." Walker v. Bd. of Transp., Reg'l Transp. Dist., 76 F.Supp.2d 1105, 1112 (D. Colo. 1999). In Board of County Commissioners of Douglas County v. Sundheim, 926 P.2d 545, 549 (Colo. 1996), the Colorado Supreme Court declined to recognize an implied cause of action to enforce the Colorado Constitution via a § 1983 lawsuit, concluding "that where other adequate remedies exist, no implied remedy is necessary." Id. at 553. Here, the enforcement of federal constitutional rights through § 1983 provides an adequate remedy for the claims alleged by Plaintiff.

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.

CONCLUSION

Based on the foregoing, this court respectfully

RECOMMENDS that "Defendants Shaffer and Palmer's Motion for Summary Judgment" (Doc. No. 40) be GRANTED in part and DENIED in part as follows:

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.

ADVISEMENT TO THE PARTIES

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).

2016 WL 369559 Only the Westlaw citation is currently available. United States District Court, D. Colorado. Jonathan (Lane) WOODSTOCK, Plaintiff, v. Lt. S. SHAFFER, Chaplain Bret Rickard, Captain Palmer, and S. Jones, Defendants. Civil Action No. 15-cv-00041-REB-KMT Signed 02/01/2016

Attorneys and Law Firms

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.

ORDER GRANTING DEFENDANT SHAD JONES'S MOTION TO CLARIFY AND DENYING MOTION TO STAY

Blackburn, United States District Judge

*1 The matters before me are (1) Defendant S. [Shad] Jones' [sic] Motion To Clarify Court's Order Overruling Objections to and Adopting Recommendation of Magistrate Judge (ECF No. 124) [#125],1 filed January 28, 2016; and (2) Defendant S. [Shad] Jones' [sic] Motion To Stay Outstanding Discovery Issues Re: Defendant Jones [#126], filed January 28, 2016. I exercise my prerogative to rule on the motion without awaiting the benefit of a response, D.C.COLO.LCivR 7.1(d).

Defendant professes confusion as to the effect of my Order Overruling Objections to and Adopting Recommendation of Magistrate Judge [#124], filed January 14, 2016 on the claims remaining against him.2 More specifically, he appears to be under the impression that I may have dismissed all claims in this lawsuit in which he is implicated, mooting his still-pending diapositive motion. He therefore seeks to stay ruling on currently pending discovery motions until that confusion is resolved. Although my order is perfectly clear, especially read in conjunction with the recommendation which it approved and adopted, I nevertheless will grant the motion to clarify and reiterate the operative language of the order. There is thus no need for a stay.

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. (See Order ¶¶ 4 & 5 at 5-6 [#124], filed January 14, 2016.) Thus, the only claims that have been dismissed in their entirety as against all defendants (to include Mr. Jones) are those asserted under (1) CRIPA; (2) § 17-4-101(1), C.R.S.; and (3) the Colorado Constitution. (See Recommendation at 11-13 [#80], filed September 24, 2015 (demonstrating lack of private right of action under any of these rubrics).)

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:

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). *2 Thus, Plaintiff's claims for compensatory damages are barred by the PLRA. However, he may still pursue nominal and punitive damages.

(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. (See Defendant S. [Shad' Jones' [sic] Motion To Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) at 4-6 [#46], filed June 5, 2015.)3 Nothing in my order adopting the recommendation addressed plaintiff's section 1983 claims against anyone other than the movants, Captain Palmer and Lieutenant Shaffer. Those claims insofar as they implicate Mr. Jones therefore also remain for determination and adjudication.4

THEREFORE, IT IS ORDERED as follows:

1. That Defendant S. [Shad] Jones' [sic] Motion To Clarify Court's Order Overruling Objections to and Adopting Recommendation of Magistrate Judge (ECF No. 124) [#125], filed January 28, 2016, is granted;

2. That the effect of my prior order is clarified as stated herein; and

3. That Defendant S. [Shad] Jones' [sic] Motion To Stay Outstanding Discovery Issues Re: Defendant Jones [#126], filed January 28, 2016, is denied.

2016 WL 8737190 Only the Westlaw citation is currently available. United States District Court, D. Colorado. Jonathan (Lane) WOODSTOCK, Plaintiff, v. LT. S. SHAFFER, Chaplain Bret Rickard, Captain Palmer, and S. Jones, Defendants. Civil Action No. 15-cv-00041-REB-KMT Signed 02/05/2016

Attorneys and Law Firms

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.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Kathleen M. Tafoya, United States Magistrate Judge

*1 This matter is before the court on "Defendant S. [Shad] Jones' Motion to Dismiss Amended Complaint" (Doc. No. 46 [Mot.], filed June 5, 2015), which this court converted into a motion for summary judgment based on the fact that Defendant Jones submitted evidence in support of the motion. (See Doc. No. 81, Courtroom Minutes, filed Sept. 24, 2105.) After time for additional briefing on the motion, Plaintiff filed his response on November 4, 2015 (Doc. No. 98 [Resp.]), and Defendant Jones filed his reply on November 18, 2015 (Doc. No. 101 [Reply]).

STATEMENT OF CASE

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").1

STANDARD

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).

*2 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.

ANALYSIS

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.").

*3 In the context of a prison, the Supreme Court has 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." West v. Atkins, 487 U.S. 42, 54 (1988). In analyzing the Atkins case, the Tenth Circuit stated, "[t]he Court reasoned 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.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1456 n.3 (10th Cir. 1995) (quoting Atkins, 487 U.S. at 56). See generally 1 MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS, DEFENSES, AND FEES, § 5.6, at 262 (2d ed. 1991) (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").

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.

CONCLUSION

In light of the factual similarity between West v. Atkins and this case, this court respectfully

RECOMMENDS that "Defendant S. [Shad] Jones' Motion to Dismiss Amended Complaint" (Doc. No. 46) (converted into a motion for summary judgement) be DENIED.

ADVISEMENT TO THE PARTIES

*4 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); Intl 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); hut 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).

2015 WL 1598098 Only the Westlaw citation is currently available. United States District Court, D. Colorado. Tunne Ahamed Said, Plaintiff, v. Teller County, Teller County Detention Center, Teller County Sheriff Department, Teller County Board of Commissioners, Mike Ensminger, Sheriff of Teller County, in his official and individual capacities, Stan Bishop, Undersheriff of Teller County, in his official and individual capacities, Jason Mikasell, Detention Commander of Teller County, in his official and individual capacities, Teller County Detention Sergeants, in their official and individual capacities, Immigration and Customs Enforcement ("ICE"), Thomas Winkowski, Acting Director of ICE, in his official capacity, John Longshore, Colorado ICE Field Director, hi his official capacity, Carl Zabat, Colorado ICE Enforcement and Removal Operations officer, in his official capacity, State of Colorado, John Hickenlooper, Governor State of Colorado, in his official capacity, Defendants. Civil Action No. 14-cv-02745-RPM Signed April 9, 2015

Attorneys and Law Firms

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.

ORDER OF DISMISSAL

Richard P. Matsch, Senior Judge

*1 Plaintiff Tunne Ahamed Said ("the Plaintiff") describes herself is as a devout, life-long Muslim. According to her religious beliefs, a woman should wear an hijab to cover her hair. The Plaintiff believes it is a grievous sin for any man, other than immediate family members, to see her without her hijab, and that it is a sin to pray without wearing the hijab. ¶ 8. The plaintiff's religious practices also include cleansing all exposed body parts immediately before kneeling to pray. Id.; see also Pl.'s resp. to Federal Defs.' mot. at p. 2. A prayer container is an essential accessory for that cleansing ritual. 1138.1

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.

*2 The complaint and first amended complaint named the following defendants:

Teller County; Teller County Detention Center; Teller County Sheriff Department; Teller County Board of Commissioners; Mike Ensminger (Teller County Sheriff in his official and individual capacities); Stan Bishop (Teller County Undersheriff in his official and individual capacities); Jason Mikasell (Teller County Detention Commander in his official and individual capacities);2 Unknown Teller County Detention Sergeants, in their official and individual capacities; Immigration and Customs Enforcement ("ICE"); Thomas Winkowski (Acting Director of ICE); John Longshore (Colorado ICE Field Director, in his official capacity); Carl Zabat (Colorado ICE Enforcement and Removal Operations Officer, in his official capacity); State of Colorado, and Governor John Hickenlooper (in his official capacity).

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. § 1983.3 The second amended complaint does not identify which claims are asserted against which defendants.

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:

(a) In general Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. *3 (b) Exception Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) Judicial relief A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

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).

*4 Section 1983 is not itself a source of substantive rights. The complaint does not identify any basis for her § 1983 claim against the Teller County Defendants, other than the RLUIPA.

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.

*5 The Plaintiff argues that her claims about the TCDC's policies survive because her requested relief includes money damages. That argument fails. Monetary relief is not available under the RLUIPA. See Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 1663, 179 L.Ed.2d 700 (2011) ("States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. . . ."). The private right of action conferred by section 1983 cannot be employed to obtain relief that is unavailable under RLUIPA's own enforcement provisions.

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.

Strope v. Cline United States District Court for the District of Kansas March 18, 2010, Decided; March 18, 2010, Filed CIVIL ACTION No. 07-3254-SAC

Reporter

2010 U.S. Dist. LEXIS 144521*

MICHAEL STROPE, also known as GORDON EUGENE STROPE, Plaintiff, vs. SAM CLINE, et al., Defendants.

Subsequent History: Summary judgment granted by, Dismissed by Strope v. Cline, 2010 U.S. Dist. LEXIS 96571 (D. Kan., Sept. 15, 2010)

Core Terms

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

Counsel: [*1] Michael Lee Strope, also known as Gordon Strope, Plaintiff, Pro se, El Dorado, KS.

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, [*2] Cowden & Rice, LLC — KC, Kansas City, MO.

For Kansas Department of Corrections, Interested Party: Jon D. Graves, LEAD ATTORNEY, Hutchinson Correctional Facility, Hutchinson, KS.

Judges: SAM A. CROW, Senior United States District Judge.

Opinion by: SAM A. CROW

Opinion

ORDER

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.

Background

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.

Discussion

Standard of review

In ruling on a [*3] motion to dismiss filed pursuant to Rule 12(b)(6), the court accepts all well-pled allegations as true and determines whether they give rise to a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). To survive a motion to dismiss, a complaint must contain sufficient facts to state a claim that is plausible on its face. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L. Ed. 2d 929 (2007).

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.

Claims against defendant Cole

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 [*4] him spoiled or outdated food, reduced portions, and failed to serve a balanced diet. (Doc. 1, p. 11). He specifically claims he was served rotten vegetables and inadequate servings of eggs and peanut butter on February 17 and 19, 2007; and that on March 19, 2007, he was served on a dirty tray and received spoiled lettuce.

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 [*5] 10, 2007. Trays used in prison food service are washed by prisoners. If a tray is dirty, a prisoner may receive a clean tray by requesting a replacement. Plaintiff did not ask defendant Cole for a replacement tray. (Doc. 35-5, Cole affidavit.)

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.)

Analysis

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 [*6] the alternative, that plaintiff cannot show she personally participated in the alleged deprivation of plaintiff's rights under the First and Eighth Amendments and that she is not a governmental entity as necessary for liability under the Fourteenth Amendment.

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, [*7] no matter how discriminatory or wrongful,'" Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L. Ed. 2d 534 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 S.Ct. 1161 (1948)). In limited circumstances, a private entity may be liable under Section 1983, if its conduct is so closely related to governmental conduct that it can be viewed as conduct of the state. Generally, the acts of an individual are "fairly attributable to the state" where two conditions are met: "[f]irst, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the state is responsible. Second, the private party must have acted together with or . . . obtained significant aid from state officials or engaged in conduct otherwise chargeable to the State." Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (internal quotations and citation omitted).

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 [*8] or that the state controlled her actions. See Young v. Martinez, 2008 U.S. Dist. LEXIS 22415, 2008 WL 793575, *11 (D. Colo. 2008) (dismissing Aramark Corporation from civil rights action arising from jail where it provided linen service) and Harrison v. Richardson, 2009 U.S. Dist. LEXIS 25820, 2009 WL 735128 (D. Kan. 2009) (dismissing § 1983 claims against employees of detention facility operated by private corporation).1

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 [*9] a prisoner's retained rights include the right to a diet that conforms with the prisoner's religious beliefs, see Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002), plaintiff's allegations do not support the existence of a substantial burden to his free exercise of religion. Rather, the record suggests that on some occasions, plaintiff received food items he believed were inedible or received a tray he believed was unsanitary. Isolated events, such as those alleged here, do not support a claim of constitutional dimension. Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009).

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). [*10] In addition, the plaintiff must show that defendant officials acted with "deliberate indifference". Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L. Ed. 2d 251 (1976). Plaintiff's allegations of a small number of events in which he found food items to be either inedible or inadequate in size and in which he found meal trays to be unsanitary do not support either component of a claim under the Eighth Amendment.

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 [*11] Cole under RLUIPA, his claims fail. Section 3 of RLUIPA provides: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution. . . ." 42 U.S.C. § 2000cc-1(a). The RLUIPA defines "government" to include "any . . . person acting under color of state law." 42 U.S.C. § 2000cc-5. Because defendant Cole was at all relevant times an employee of Aramark and not a state employee, plaintiff cannot prevail in a claim against her under the RLUIPA.

Claims against defendant Anderson

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 [*12] Prisons. (Doc. 1, Ex. 23.)

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)2

In Count 3, plaintiff asserts the same claims, alleging defendant Anderson violated his rights under the RLUIPA. (Doc. [*13] 1, p. 10.)

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.)

Analysis

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 [*14] action by defendant Anderson resulted in a substantial burden to the exercise of his religious freedom.

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 [*15] by the RLUIPA. 42 U.S.C. § 2000cc-5(4)(A).

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.

Conclusion

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.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this 18th day of March, 2010.

/S/ Sam [*16] A. Crow

SAM A. CROW

United States Senior District Judge

2009 WL 735128 Only the Westlaw citation is currently available. United States District Court, D. Kansas. Carl HARRISON, Plaintiff, v. Shelton RICHARDSON, et al., Defendants. No. 09-3050-SAC. March 19, 2009.

Attorneys and Law Firms

Carl Harrison, Leavenworth, KS, pro se.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

*1 This civil rights complaint was filed pursuant to 42 U.S.C. § 1983, by an inmate of the Leavenworth Detention Center, Leavenworth, Kansas (LDC). Named as defendants are Shelton Richardson, Warden, LDC; Robert Mundt, Assistant Warden, LDC; Bruce Roberts, Chief of Security, LDC; and Ken Daugherty, Chief of Unit Management, LDC. Plaintiff claims that defendants were acting under color of state law, and sues each in his individual capacity.

FACTUAL BACKGROUND

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.

LEGAL CLAIMS

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.

REQUESTED RELIEF

Plaintiff seeks compensatory, punitive, and nominal damages against each defendant.

APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES

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 dollar1. Plaintiff must pay this initial partial filing fee before this action may proceed further, and will be given time to submit the fee to the court. His failure to submit the initial fee in the time allotted may result in dismissal of this action without further notice.

SCREENING

*2 Because Mr. Harrison is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A (a) and (b). Having screened all materials filed, the court finds the complaint is subject to being dismissed for reasons that follow.

FAILURE TO STATE A CAUSE OF ACTION UNDER § 1983

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 law2." Instead, the Corrections Corporation of America (CCA) that owns and operates the LDC is a private corporation that often contracts with an agency of the United States, usually the United States Marshals Service or the Federal Bureau of Prisons, to house federal prisoners. It follows that plaintiff does not state a cause of action under § 1983 against defendant CCA/LDC employees3. See Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982)(decisions of physicians of privately owned and operated nursing home to transfer Medicaid patients not state action); cf., West v. Atkins, 487 U.S. 42, 55-56 (1988)(A private physician who contracted with a state prison to treat inmates to satisfy the state's constitutional obligation to provide medical care, was held to be a state actor based upon his functions within the state system.). Plaintiff's remedy, if any, is an action for negligence or other misconduct in state court, if available. See Lindsey v. Bowlin, 557 F.Supp.2d 1225, 2008 WL 2331175 (D.Kan. June 6, 2008)(Kansas law generally provides an inmate with a remedy against CCA employees for negligence and for actions amounting to violations of federal constitutional rights.); see Peoples v. CCA Detention Centers, 422 F.3d 1090, 1104-05 (10th Cir.2005) (Individual CCA defendants owed a duty to protect to plaintiff that if breached, would impose negligence liability.); see also Menteer v. Applehee, 2008 WL 2649504, *8-*9 (D.Kan. June 27, 2008) (slip copy) (plaintiff's state law negligence claim found to be equally effective, alternative cause of action to Bivens claim). Thus, plaintiff has not presented a valid jurisdictional basis for a cause of action in federal court. Plaintiff will be given time to show cause why this action should not be dismissed for failure to state a claim under 42 U.S.C. § 1983.

*3 The court notes that even if plaintiff could allege a cause of action under § 1983, his complaints regarding actions or inactions by LDC employees are either conclusory or the facts alleged fail to state a federal constitutional claim. A pro se complaint must be given a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520 (1972); See Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir.1991). However, the court cannot assume the role of advocate for the pro se litigant, and "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997); see Kempf v. City of Colorado Springs, 91 Fed. Appx 106, 107 (10th Cir.2004). A broad reading of the complaint does not relieve the plaintiff of the burden of alleging sufficient facts to state a claim on which relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)(Conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.); see Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996). "This is so because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted." Id. The court comments upon each of plaintiff's claims and their deficiencies.

COMPLAINTS REGARDING PLACEMENT IN SEGREGATION

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 duration4. Plaintiff also alleges that October 22, 2008, he was "immediately placed back in segregation after "two correctional staff were assaulted," even though "the facility's administration" knew he had no knowledge of or involvement in the incident. He further alleges that on October 25, 2008, "all Maryland prisoners" were placed in segregation due to the assault incident. He complains that no disciplinary report was issued, and he was not made aware of the reason for his placement in segregation until October 28, 2008, when all Maryland segregation inmates were issued a "status change sheet" showing placement "on pending hearing detention." He asserts that he was segregated simply for being a Maryland prisoner. He appears to allege that a grievance resulted in "a subsequent status change" on December 1, 2008, "to security detention."

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.

COMPLAINTS REGARDING CONDITIONS IN SEGREGATION

*4 Plaintiff alleges that on October 22, 2008, he was stripped to his boxers, and forced to walk through the facility and inclement weather to the segregation building, where he was placed in a strip cell for "approximately 3 days" with "no clothes, linen or hygiene supplies." Plaintiff also complains that while in segregation he was forced to sleep on a "metal bunk" without a mattress5, clothing, or bed linens, in frigid temperatures, and that it caused severe pain in his right leg from surgery performed on September 12, 2008. He claims the pain caused "physical injury internally."

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 prison6; and prevented him from earning money in a prison job.

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).

*5 Accepting as true plaintiff's allegations regarding his walk to and conditions in the segregation unit, the court finds they do not amount to deprivations so cruel or prolonged as to have posed a serious risk of danger to plaintiff's life or health. Furthermore, a prison inmate has no federal constitutional right to rehabilitation programs, employment, or wages while in prison. Mr. Harrison has failed to state facts showing a violation of the Eighth Amendment or any other federal constitutional provision.

DENIAL OF ACCESS CLAIM

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.

FAILURE TO ALLEGE PERSONAL PARTICIPATION

*6 Finally, the court notes that a defendant cannot be held liable in a civil rights action based solely on the theory of respondeat superior. Instead, an essential element of a civil rights action for money damages against an individual is that person's direct personal participation in the acts or inactions upon which the complaint is based. Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir.2006)(A defendant's direct personal responsibility for the claimed deprivation of a constitutional right must be established); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993)(affirming district court's dismissal where "plaintiff failed to allege personal participation of the defendants").

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 ORDERED TO SHOW CAUSE

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.

IT IS THEREFORE ORDERED that plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $7.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as required herein may result in dismissal of this action without prejudice.

IT IS FURTHER ORDERED that within the same thirty-day period plaintiff must show cause why this action should not be dismissed for failure to state a cause of action under 42 U.S.C. § 1983 and for failure to allege sufficient facts in support of a federal constitutional claim as discussed herein.

IT IS SO ORDERED.

2018 WL 1626175 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Ronald M. ACKRIDGE, Plaintiff, v. ARAMARK CORRECTIONAL FOOD SERVICES; County of Westchester; Captain Roberts; Sergeant Tosi; Chaplain Office, Defendants. No. 16-CV-6301 (KMK) Signed 03/30/2018

Attorneys and Law Firms

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.

OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

*1 Pro se Plaintiff Ronald M. Ackridge ("Plaintiff") brought the instant Action against the County of Westchester ("Westchester County"), Captain Roberts, the Chaplain Office, Sergeant Tosi (together, "County Defendants"), and Aramark Correctional Food Services ("Aramark," and together with County Defendants, "Defendants") alleging violations of his constitutional and state law rights for denial of kosher meals and regular Jewish services. (See Am. Compl. (Dkt. No. 27).)1 Specifically, Plaintiff brings federal claims under 42 U.S.C. § 1983 alleging Defendants violated his First, Fifth, Eighth, and Fourteenth Amendment rights; federal claims under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc-1, et seq.; state law claims under New York Civil Rights Law, N.Y. Civ. Rights Law § 40-c; state law claims alleging violation of Article 1 § 3 of the New York State Constitution, N.Y. Const. art. I, § 3; state law claims under the Minimum Standards and Regulations for Management of County Jails and Penitentiaries ("Minimum Standards"), N.Y. Comp. Codes R. & Regs. Tit. 9 §§ 7009.4, 7024.6 ("N.Y.C.R.R."); and state law claims for "[h]arassment, intentional infliction of emotional and mental stress, wanton disregard and indifference in wrongfully denying Plaintiff his customary religious kosher dietary meals and wrongfully and unlawfully denying Plaintiff his rights to attend and worship with [the] fellowship of Jewish Services." (See id.) Before the Court is County Defendants' Motion To Dismiss the Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "County Defendants Motion"), (see Notice of Motion (Dkt. No. 43); Cty. Defs.' Mem. of Law in Supp. of Mot. To. Dismiss ("Cty. Defs.' Mem.") (Dkt. No. 44)), and Aramark's Motion To Dismiss the Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Aramark Motion"), (see Notice of Motion (Dkt. No. 45); Def. Aramark's Mem. of Law in Supp. of Mot. To. Dismiss ("Def. Aramark's Mem.") (Dkt. No. 48)). For the following reasons, the Motions are granted in part and denied in part.

I. Background

A. Factual Background

*2 The following facts are drawn from the Amended Complaint and are taken as true for the purpose of resolving the instant Motions. At the time of the events described herein, Plaintiff was an inmate at Westchester County Department of Correction ("WCDOC"). (Am. Compl. ¶ 9.)

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.)2 Plaintiff filed a grievance on February 22, 2016 requesting kosher meals "without further delay." (Am. Compl. Ex. D ("Feb. 22, 2016 Grievance").) On February 23, 2016, Sergeant Orness had Plaintiff approved to receive kosher meals, and a kosher meal was delivered that day. (Am. Compl. Ex. E ("Feb. 29, 2016 Grievance Response").)

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.)3 Plaintiff alleges that "[WC]DOC took no steps to assure that incoming Jewish inmate/detainees receive their [k]osher dietary meals upon entry." (Id.) Instead, WCDOC "sys[y]temically and routinely ma[d]e Jewish detainees wait 3 to 6 weeks before providing them with [k]osher dietary meals." (Id.)

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.)

*3 Plaintiff alleges that WCDOC, Westchester County, Aramark, and the Chaplain Office "knowingly [and] with total disregard pursued a policy and custom of deliberate indifference[] of the rights, needs[,] and laws of Jewish detainees/inmates . . . including Plaintiff, in its procedures for supervising and assuring that Jewish inmates/detainees are provided with religious [k]osher dietary meals and religious Jewish services." (Id. ¶ 14.) And, WCDOC and Westchester County "failed to institute a bona fide procedure and policy in which [D]efendants investigated Aramark and [the] Chaplain Office for wrongful[ly] and unlawfully denying Jewish inmates/detainees their religious kosher dietary meals and Jewish [s]ervices." (Id. ¶ 15.) According to Plaintiff, Westchester County and WCDOC "act[] as [m]unicipal policymakers in the hiring, contracting, training[,] and supervision of [D]efendants Aramark and [the] Chaplains Office; and have pursued a policy and custom of deliberate indifference to the religious rights, laws[,] and practice[s] of Jewish detainees, including Plaintiff," and "knowingly violat[ed] Plaintiff's rights to observe, practice[,] and worship his religious belief." (Id. ¶ 26.)

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.)4

B. Procedural History

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).5 On September 7, 2016, the Court issued an Order of Service, directing service on the named Defendants. (Dkt. No. 8.) On September 13, 2016, Plaintiff sought leave to file an amended complaint. (Dkt. No. 11.) That same day, Plaintiff filed a copy of the proposed Amended Complaint and requested that the Court direct service of the proposed Amended Complaint. (Dkt. No. 12.) On September 19, 2016, Plaintiff wrote the Court asking that the Amended Complaint be accepted. (Dkt. No. 13.)

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.)6 County Defendants submitted a premotion letter on February 14, 2017, indicating the grounds on which County Defendants would move to dismiss. (Dkt. No. 40.) Aramark also submitted a premotion letter on February 14, 2017, indicating the grounds on which they would move to dismiss. (Dkt. No. 41.) The Court held a conference on February 15, 2017, and set a briefing schedule for the Motions to Dismiss. (Mot. Scheduling Order (Dkt. No. 42).)

*4 In accordance with the Scheduling Order, County Defendants filed their Motion To Dismiss and accompanying Memorandum of Law on March 15, 2016. (Dkt. No. 43; Cty. Defs.' Mem.) Defendant Aramark also filed their Motion to Dismiss and an accompanying Memorandum of Law, declaration, and affidavit on March 15, 2017. (Dkt. Nos. 45-47; Def. Aramark's Mem.)7 On April 3, 2017, Plaintiff filed his Opposition to Defendants' Motions. (Pl.'s Opp. To Defs.' Mot. To Dismiss ("Pl.'s Opp.") (Dkt. No. 50).) On March 8, 2017, County Defendants and Defendant Aramark filed their respective Replies. (Cty. Defs.' Reply Mem. of Law in Supp. of Mot. To. Dismiss ("Cty. Defs.' Reply Mem.") (Dkt. No. 53); Def. Aramark's Reply Mem. of Law in Supp. of Mot. To. Dismiss ("Def Aramark's Reply Mem.") (Dkt. No. 52).)8

II. Discussion

A. Standard of Review

"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)).

*5 Where, as here, a plaintiff proceeds pro se, the Court must "construe[] [his complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s]." Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks omitted); see also Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at *12 (S.D.N.Y. Dec. 2, 2013) (same), aff'd sub nom. Farzan v. Genesis 10, 619 Fed.Appx. 15 (2d Cir. 2015). However, "the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law." Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) ("[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them." (italics and internal quotation marks omitted)).

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).

B. Analysis

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.)

*6 Aramark also moves to dismiss Plaintiff's Amended Complaint on several grounds: (1) that Plaintiff failed to allege a custom or policy under which to find Aramark liable; (2) that Aramark was not acting in concert with or as a state actor and cannot be sued under § 1983; (3) that Plaintiff failed to exhaust administrative remedies as to Aramark; (4) that Plaintiff failed to allege that his sincerely religious beliefs were substantially burdened as is required to state a First Amendment claim; and (5) that Plaintiff's state law claims should be dismissed. (See generally Def. Aramark's 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.

1. Aramark Acting Under Color of State Law

Aramark argues that Plaintiff's claims against it must be dismissed because it is not a state actor. (Def. Aramark's Mem. 7-9.)9 To state a claim for any constitutional violation under § 1983, a plaintiff must allege that "a person acting under color of state law deprived him or her of a right secured by the Constitution or laws of the United States." Oliveira v. Price Law Firm, No. 14-CV-4475, 2014 WL 4088199, at *2 (S.D.N.Y. July 30, 2014); see also McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) ("To state a claim under § 1983, a plaintiff must allege that defendants violated plaintiff's federal rights while acting under color of state law."); Schiff v. Suffolk Cty. Police Dept, No. 12-CV-1410, 2015 WL 1774704, at *5 (E.D.N.Y. Apr. 20, 2015) (same). "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action." Flagg v. Yonkers Say. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation marks omitted). "State action requires both an alleged constitutional deprivation caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation must be a person who may fairly be said to be a state actor." Id. (alteration and internal quotation marks omitted). Thus, in order to survive a motion to dismiss, "a plaintiff must allege he was injured by either a state actor or private party acting under the color of state law." Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002).

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:

*7 For the purposes of [§] 1983, the actions of a nominally private entity are attributable to the state when: (1) the entity acts pursuant to the "coercive power" of the state or is "controlled" by the state ("the compulsion test"); (2) when the state provides "significant encouragement" to the entity, the entity is a "willful participant in joint activity with the [s]tate," or the entity's functions are "entwined" with state policies ("the joint action test" or "close nexus test"); or (3) when the entity "has been delegated a public function by the [s]tate," ("the public function test").

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.)10

a. Close Nexus Test

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).

*8 Here, a sufficiently close nexus exists because it would be fair to hold the state responsible for the private conduct at issue by virtue of the ties between the WCDOC and Aramark. See Torres, 2015 WL 9077472, at *4-6; Pagan, 2014 WL 982876, at *25. Aramark, apparently acting pursuant to a contract, prepared the kosher and nonkosher meals for the WCDOC. (See Am. Compl. ¶¶ 9-10, 12.) Moreover, jail personnel allegedly were prepared to field Plaintiff's complaints about the food. (See Jan. 29, 2016 Grievance Response.) Consequently, because the arrangement between the jail and Aramark allowed the jail, in effect, to shift one of its obligations to Aramark, the Court finds that the nexus between the two is sufficient to plausibly impute state action to Aramark.

b. Public Function Test

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.

2. PLRA Exhaustion as to Aramark

*9 Aramark argues that Plaintiff failed to exhaust administrative remedies with respect to Aramark pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), (Def. Aramark's Mem. 9-10), which provides that "[n]o action shall be brought with respect to prison conditions under [§] 1983 . . . 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 exhaustion requirement applies to all personal incidents while in prison, Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding exhaustion is required for "all inmate suits about prison life, whether they involve general circumstances or particular episodes"); see also Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (same), including actions for monetary damages despite the fact that monetary damages are not available as an administrative remedy, Booth v. Churner, 532 U.S. 731, 741 (2001) (holding exhaustion is required "regardless of the relief offered through administrative procedures"). Moreover, the PLRA mandates "`proper exhaustion' that is, `using all steps that the agency holds out, and doing so properly,' . . . [which] entails . . . `completing the administrative review process in accordance with the applicable procedural rules.'" Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (alteration omitted) (quoting Woodford v. Ngo, 548 U.S. 81, 88, 90 (2006)); see also Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.").

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:

Under § 1997e(a), the exhaustion requirement hinges on the "availab[ility]" of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones. And that limitation on an inmate's duty to exhaust . . . has real content. . . . [A]n inmate is required to exhaust those, but only those, grievance procedures that are "capable of use" to obtain "some relief for the action complained of."

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)).

*10 While Aramark is correct that Plaintiff does not allege he commenced administrative remedies with respect to Aramark and that none of the grievances Plaintiff attached to his Amended Complaint references Aramark, at the motion to dismiss stage, Plaintiff "need not plead exhaustion with particularity." McCoy v. 255 F. Supp. 2d at 248. Aramark has not met its burden of proof in demonstrating that Plaintiff failed to exhaust his administrative remedies merely by pointing to a lack of allegations of exhaustion or a lack of exhibits demonstrating exhaustion in the Amended Complaint. Accordingly, because non-exhaustion is not "clear from the face of the [Amended C]omplaint," Lovick, 2014 WL 3778184, at *4 (internal quotation marks omitted), the Court declines to grant Aramark's Motion on this ground.

3. Monell Claims

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.)

a. Standard of Review

"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).

*11 A plaintiff may satisfy Monell's "policy or custom" requirement by alleging one of the following:

(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.

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).

b. Claims Against Westchester County

*12 Westchester County argues 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.) The Court agrees.

1. Delay in Receiving Kosher Meals

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").

*13 Aside from the eighteen days Plaintiff personally experienced without kosher food, (Am. Compl. ¶ 11), the Complaint fails to allege specific facts regarding Jewish inmates being denied kosher meals. While the Complaint "details an incident that Plaintiff finds objectionable, it does not plead the existence of a municipal policy or custom." Vasquez v. Vill. of Haverstraw, No. 15-CV-8845, 2017 WL 4296791, at *6 (S.D.N.Y. Sept. 26, 2017); see also Pittman v. City of New York, No. 14-CV-4140, 2014 WL 7399308, at *7 (E.D.N.Y. Dec. 30, 2014) ("A Monell claim cannot go forward based on conclusory claims regarding a single incident without more evidence that connects th[e] incident to a municipal policy or practice."); Gordon v. City of New York, No. 10-CV-5148, 2012 WL 1068023, at *4 (E.D.N.Y. Mar. 29, 2012) (dismissing Monell claim where the plaintiff's "allegation [was] unsupported by anything other than the facts of what occurred in his particular case"). Accordingly, Plaintiffs claims against Westchester County alleging a policy or custom of denying kosher meals are dismissed.

2. Lack of Regular Jewish Services

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.

c. Claims Against Aramark

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.

4. Personal Involvement of Tosi and Roberts11

*14 Tosi and Roberts argue that the Amended Complaint should be dismissed against them because they were not personally involved in the alleged Constitutional violations. (Cty. Defs.' Mem. 8-9.)

"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:

(1) the defendant participated directly in the alleged constitutional violation[;] (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong[;] (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom[;] (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts[;] or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

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).

a. Roberts

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.

*15 Moreover, Roberts cannot be held personally liable for constitutional violations by others in WCDOC merely "because he was in a high position of authority in the prison system." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (affirming summary judgment ruling in favor of the Commissioner of the New York Department of Correctional Services); see also Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016), as amended (Feb. 24, 2016) (explaining that "a defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority" (alteration and internal quotation marks omitted)). "Supervisory status, without more, is not sufficient to subject a defendant to [§] 1983 liability." Fortunato v. Bernstein, No. 12-CV-1630, 2015 WL 5813376, at *6 (S.D.N.Y. Sept. 1, 2015) (internal quotation marks omitted). Personal involvement "requires a showing of more than the linkage in the prison chain of command." Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (same).

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.

b. Tosi

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).12 Other courts have typically considered three factors to determine whether a prison official was personally involved based on the denial of a grievance:

*16 The first factor was the distinction between simply affirming the denial of a grievance and review[ing] and respond[ing] to a prisoner's complaint by undertaking some kind of investigation . . . Second, some courts drew a distinction between a pro forma denial of a grievance and a detailed and specific response to a grievance's allegations. Finally, some courts looked to whether the alleged constitutional violation complained of in a grievance [was] ongoing . . . such that the supervisory official who reviews the grievance can remedy [it] directly, finding personal involvement only in cases dealing with ongoing violations.

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.

5. Free Exercise Claims13

a. Standard of Review

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").

*17 A prisoner's First Amendment rights, however, are "[b]alanced against . . . the interests of prison officials charged with complex duties arising from the administration of the penal system." Ford, 352 F.3d at 588 (internal quotation marks omitted); see also Benjamin v. Coughlin, 905 F.2d 571, 579 (2d Cir. 1990) ("Prisoners have a right to receive diets consistent with their religious scruples," but "[c]ourts . . . are reluctant to grant dietary requests where the cost is prohibitive, or the accommodation is administratively unfeasible." (citations and internal citations omitted)). Accordingly, a prisoner's Free Exercise claims are "judged under a reasonableness test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." Ford, 352 F.3d at 588 (internal quotation marks omitted).

"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.").14 "[A]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." Ford, 352 F.3d at 588 (internal quotation marks omitted). The relevant inquiry is not whether, as an objective matter, the belief is "accurate or logical." Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir. 1996).

"[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).

b. Sincerely Held Beliefs

*18 County Defendants argue that Plaintiff has failed to allege that his beliefs are sincerely held. (County Defs.' Mem. 6.) Rather, Plaintiff has only alleged that he was "processed" as Jewish and requested regular Jewish religious services. (Id.) County Defendants argue the Amended Complaint has no allegations that Plaintiff's beliefs were sincerely held. (Id.) While Plaintiff has not explicitly plead that his religious beliefs are "sincerely held," he has alleged that he listed his religious preference as Jewish, (Am. Compl. ¶ 9), participated in the kosher meal program when he was previously incarcerated, (Pl.'s Opp. ¶¶ 5-6), and chose not to eat the non-kosher food and "los[t] unwanted weight and fe[lt] weak and tired." (Feb. 22, 2016 Grievance.) The Second Circuit has found similar allegations sufficient to plea this element. See Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (finding sufficient evidence to raise a genuine issue of material fact as to sincerity of religious beliefs where Plaintiff "submitted prison documentation that: (1) listed his religious preference as Jewish; (2) showed his participation in kosher meal programs in several other correctional facilities; and (3) showed that he had actually gone without food for several days to avoid eating non-kosher food. He also submitted an affidavit from his mother, in which she stated that she had raised [the plaintiff] according to the Jewish faith and dietary laws."). Construing Plaintiff's allegations liberally, the Court holds that he has sufficiently alleged that his religious beliefs are sincerely held at this stage of the proceedings to survive the Motions To Dismiss.

c. Lack of Regular Jewish Services15

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)).16 For example, based on the exhibits Plaintiff attaches to the Complaint, the instruction that Rabbi Horowitz "see to [Plaintiff's] religious needs" does not appear to have been an adequate "alternative means of exercising the burdened right." (Apr. 9, 2016 Grievance Response.) Id. Plaintiff wrote to Father Tolve on March 6, 2016 stating he had still "not been advised of any Jewish Services" despite having "written to Rabbi Horowitz." (Am. Compl. Ex. H ("Mar. 6, 2016 Letter").) On March 23, 2016, Plaintiff again wrote to Father Tolve stating he had "not heard anything" about Jewish services from him or Rabbi Horowitz. (Am. Compl. Ex. I ("Mar. 23, 2016 Letter").) On March 31, 2016, Plaintiff wrote to Rabbi Horowitz stating that he had now "written to both [him] and Father Tolve concerning Jewish services" and that "[n]o one . . . called [him] for, or notified [him] . . . in spite of [his] many request[s] for Jewish Services." (Am. Compl. Ex. J ("Mar. 31, 2016 Letter") (emphasis omitted).) On June 6, 2016, Plaintiff again wrote Rabbi Horowitz and Father Tolve stating that in mid-April, "Father [Tolve] told Plaintiff that the Rabbi would visit [him] on Tuesdays or Thursdays," but he had "not seen the Rabbi once since [his] incarceration at WCDOCS except for one Passover ceremony." (Am. Compl. Ex. K ("June 9, 2016 Letter").) Finally, on September 9, 2016, Plaintiff filed a grievance regarding the lack of Jewish services or ability to meet with the Rabbi. (Am. Compl. Ex. L ("Sept. 9, 2016 Grievance").) Thus, based on the allegations in the Amended Complaint, County Defendants have failed to identify a legitimate penological interest that would justify dismissing Plaintiff's Free Exercise Claim. See Washington v. Chaboty, No. 09-CV-9199, 2011 WL 102714, at *10 (S.D.N.Y. Jan. 10, 2011) ("The Second Circuit has cautioned that evaluation of penological interests is a fact-intensive inquiry that is not ordinarily amenable to resolution on a motion to dismiss.") (citing Shakur v. Selsky, 391 F.3d 106, 115 (2d Cir. 2004)), rev'd in part on other grounds sub nom. Washington v. Gonyea, 538 Fed.Appx. 23 (2d Cir. 2013); Salahuddin, 993 F.2d at 309 (finding that "discovery could help determine whether use of a suitable room or the recreation yard could accommodate [the plaintiff's] right to congregate religious services and satisfy the government's security interests"). Therefore, this claim survives the Motions To Dismiss.

6. Establishment Clause Claims

*19 County Defendants argue the Plaintiff has failed to allege an Establishment Clause violation. (Cty. Defs.' Mem. 10.) "The Establishment Clause forbids `excessive government entanglement with religion.'" Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) (quoting Lemon v. Kurtzman, 403 U.S. 602, 613 (1971)). The Supreme Court has repeatedly made clear that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so." Lee v. Weisman, 505 U.S. 577, 587 (1992) (alteration and internal quotation marks omitted). The "principle at the heart of the Establishment Clause" is that "government should not prefer one religion to another, or religion to irreligion." Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703 (1994). Here, Plaintiff has not alleged that Defendants coerced him to support or participate in a particular religion or no religion. Plaintiff also does not allege that the state established a religion in WCDOC. See, e.g., Jackson, 196 F.3d at 321 (dismissing Establishment Clause claim for lack of kosher meals because "it essentially restates [the plaintiff's] Free Exercise claim—that the prison officials unconstitutionally refused to provide him with a kosher diet . . . This argument is more properly anchored in the Free Exercise Clause than the Establishment Clause."). The Court therefore grants County Defendants' Motion to Dismiss the Establishment Clause claim.17

7. Fifth Amendment Claims

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.18

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.

8. Eighth Amendment Claims

Defendants argue that Plaintiff has failed to state an Eighth Amendment claim for cruel or unusual punishment.19 (Defs.' Mem. 11-13.) The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. It is axiomatic that "[t]he conditions of a prisoner's confinement can give rise to an Eighth Amendment violation." Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curium). "[T]he Eighth Amendment requires that prisoners be served 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." Little v. Mun. Corp., 51 F.Supp.3d 473, 489 (S.D.N.Y. 2014) (alterations and internal quotations omitted). "Although the Constitution does not require `comfortable' prison conditions, the conditions of confinement may not `involve the wanton and unnecessary infliction of pain.' Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). To state an Eighth Amendment claim relating to conditions of confinement, Plaintiff must plausibly allege "both an objective element —that the prison officials' transgression was `sufficiently serious'—and a [mens rea prong]—that the officials acted, or omitted to act, with a `sufficiently culpable state of mind,' i.e., with `deliberate indifference to inmate health or safety.'" Phelps, 308 F.3d at 185 (italics omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).20

*20 "To meet the objective element, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health." Walker, 717 F.3d at 125. "Thus, prison officials violate the Constitution when they deprive an inmate of his basic human needs such as food, clothing, medical care, and safe and sanitary living conditions." Id. (internal quotation marks omitted). "[T]here is no static test to determine whether a deprivation is sufficiently serious; the conditions themselves must be evaluated in light of contemporary standards of decency." Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (alteration and internal quotation marks omitted). The Court must consider the "severity and duration, on a case-by-case basis." Darnell, 849 F.3d at 30. Moreover, conditions of confinement may be aggregated to rise to the level of a constitutional violation, but "only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise." Wilson v. Seiter, 501 U.S. 294, 304 (1991) (noting that "low cell temperature at night combined with a failure to issue blankets" may establish an Eighth Amendment violation).

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.21

9. Equal Protection 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.").

*21 Plaintiff claims that Defendants systematically discriminated against him (and other Jewish inmates) by denying him kosher meals for eighteen days and limiting the amount of Jewish services. (Am. Comp. ¶¶ 8, 11-12.) The deficiency in Plaintiff's equal protection claim is that it "does not allege that [Plaintiff] was treated differently from any identified individuals, let alone individuals who he claims were similarly situated to him in any respect," and "is completely devoid of any reference to `similarly situated' or `substantially similar' individuals." Vaher v. Town of Orangetown, 916 F.Supp.2d 404, 434 (S.D.N.Y. 2013); see also id. at 433 (dismissing the plaintiff's equal protection claim under theories of selective enforcement and class of one where the plaintiff "simply" alleged that the defendants "singled out [the] plaintiff, in part, because of his exercise of constitutional rights" (internal quotation marks omitted)); Butler v. Bridgehampton Fire Dist., No. 14-CV-1429, 2015 WL 1396442, at *5 (E.D.N.Y. Mar. 25, 2015) (dismissing the plaintiff's equal protection claim under the selective enforcement and class of one theories because the complaint "only discusse[d] the harmful actions [the defendants] took with respect to [the] [p]laintiff, but there [was] no discussion whatsoever of any similarities between [the] [p]laintiff and others"). Indeed, Plaintiff does not identify any particular inmates with religious dietary needs who were treated better than Jewish inmates seeking kosher meals. And, Plaintiff does not allege that inmates of other particular religious affiliations with the same population size as Jewish inmates were provided regular or weekly religious services. See Jackson, 196 F.3d at 321 (dismissing claim "because [the plaintiff] presented no evidence whatsoever that he was treated differently from similarly situated members of other religions."). "The absence of comparators is fatal to this claim and, therefore, Plaintiff's equal protection claim is dismissed." Gilliam, 2017 WL 476733, at *8. Additionally, Plaintiff does not sufficiently allege that the denial of kosher meals and regular Jewish services was the "result of intentional or purposeful discrimination." Phillips, 408 F.3d at 129. "Proof that discriminatory intent was a motivating factor is required to show a violation of the Equal Protection Clause." Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 438 (2d Cir. 2009). Plaintiff alleges "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]." (Compl. ¶ 10.) This type of conclusory allegation is insufficient to state a claim. Collins v. Sovereign Bank, 482 F.Supp.2d 235, 240 (D. Conn. 2007) ("Conclusory allegations of discrimination, without evidentiary support or allegations of particularized incidents and absent allegations of discriminatory intent, do not state a valid claim and so cannot withstand a motion to dismiss." (alteration and internal quotation marks omitted)). Moreover, the fact that County Defendant rectified Plaintiff's lack of kosher meals upon receiving his grievance suggests a lack of any such intent. (Feb. 29, 2016 Grievance Response.) And, Plaintiff also does not offer any factual allegations that County Defendants acted with discriminatory intent in denying him regular or weekly Jewish religious services. As is clear from responses to his grievances attached to the Amended Complaint, regular or weekly Jewish religious services were not provided because the number of Jewish inmates in WCDOC was insufficient to justify the cost of a separate Jewish services. (Apr. 9, 2016 Grievance Response.) This belies Plaintiff's claim that the dearth of Jewish religious services was the result of intentional or purposeful discrimination. Accordingly, the Court grants County Defendants' Motion to Dismiss the Fourteenth Amendment claims.22

10. RULIPA Claims

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.23 See Gilliam, 2017 WL 476733, at *7 (dismissing claim for monetary damages under RLUIPA).24

11. Claims for Declaratory Relief

*22 To the extent Plaintiff seeks declaratory relief, any claim for such relief is moot. (See Compl. 6.) Plaintiff was released from WCDOC custody sometime after the filing of the Complaint. (See Dkt. Nos. 14, 18, 54 (notifying the Court of Plaintiff's change of address from WCDOC).) "Where a prisoner has been released from prison, his claims for injunctive relief based on the conditions of his incarceration must be dismissed as moot." Pugh, 571 F. Supp. 2d at 489; Salahuddin, 467 F.3d at 272 ("[A]n inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility."); Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) ("It is settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility."); McAlpine v. Thompson, 187 F.3d 1213, 1217-18 (10th Cir. 1999) (noting that eight other "circuit[s that have] consider[ed] the issue ha[ve] decided that release to parole moots a claim regarding prison conditions and regulations" and so holding (italics omitted)); Pugh, 571 F. Supp. 2d at 490 (denying injunctive and declaratory relief for former inmate's RLUIPA claims as moot).25 Accordingly, Plaintiff's claim for injunctive and declaratory relief is moot.

12. State Law Claims

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.

a. New York Constitutional Claims

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.26

b. Minimum Standards §§ 7009.4 and 7024.6 Claims

*23 Defendants argue that Minimum Standards §§ 7009.4 and 7024.6 do not provide a private right of action. 9 N.Y.C.R.R. §§ 7009.4 & 7024.6 (Cty. Defs.' Mem. 19; Def. Aramark's Mem. 11-12.) They are right. See generally Powlowski v. Wu 479 N.Y.S.2d 89, 95 (App. Div. 1984) ("Because of the limitations on the power of the judiciary in such matters . . . enforcement of [the minimum] standards is a matter for the Commission of Corrections or others in the executive branch of government and not for the courts.") (citing Jones v. Beanie, 380 N.E.2d 277, 279 (N.Y. 1978)). Thus, the Court grants County Defendants' and Aramark's Motions to Dismiss these claims.

c. New York Civil Rights Law § 40-c Claims

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.27

d. Intentional Infliction of Emotional Distress Claims

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.28

III. Conclusion

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.

*24 The Clerk of the Court is respectfully requested to terminate the pending Motions. (Dkt. Nos. 43, 45.)

SO ORDERED.

2014 WL 3530820 Only the Westlaw citation is currently available. United States District Court, W.D. Tennessee, Western Division. Andre Lovell DOTSON, Plaintiff, v. SHELBY COUNTY, et al., Defendants. No. 13-2766-JDT-tmp. Filed July 15, 2014.

Attorneys and Law Firms

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.

ORDER ON PENDING MOTIONS, MODIFYING RESTRICTIONS IMPOSED IN CASE NUMBERS 00-2229 AND 02-2086, DISMISSING CERTAIN CLAIMS AND PARTIES, AND DIRECTING REMAINING DEFENDANTS TO RESPOND TO PLAINTIFF'S MOTION FOR TRO AND PRELIMINARY INJUNCTION

JAMES D. TODD, District Judge.

*1 On May 17, 2013, Plaintiff Andre Lovell Dotson, booking number 12146457, a pretrial detainee at the Shelby County Criminal Justice Complex ("Jail") in Memphis, Tennessee, forwarded a pro se complaint, titled "Injunctive Relief," to the Circuit Court for Shelby County, Tennessee. The case was filed on September 9, 2013, as case number CT-003910-13, Division VII. (ECF No. 1-1.) The complaint seeks relief under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq., the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb et seq., and 42 U.S.C. § 1983. Two of the Defendants, Shelby County Sheriff William Oldham and Chief Jailer Robert Moore, removed the case to this Court on October 2, 2013. (ECF No. 1.) The Clerk shall record the Defendants as Shelby County, Oldham, Moore, and Aramark Correctional Services, LLC ("Aramark"), which was sued as "Aramark, Inc."1 The individual Defendants are sued in their official capacities. (ECF No. 1-1 at 1.)

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:

*2 Plaintiff shall abide by those orders [in case number 00-2229] in connection with any case filed in, or removed to, this court. The court reiterates the above prohibition on the clerk's filing of any new case from this prisoner without leave of court. Moreover, any case submitted by this plaintiff to another court that is thereafter transferred to this district, or removed from state court, will result in the same sanctions.

(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:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

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.

*3 The Court has considered whether Plaintiff's status as a three-strike filer precludes him from litigating the claims in this removed action in federal court. Because 28 U.S.C. § 1915(g) does not alter the Court's subject-matter jurisdiction, a district court cannot remand a properly removed action to state court on the ground that the prisoner is a three-strike filer. See Lloyd v. Benton, 686 F.3d 1225, 1227-28 (11th Cir.2012); Lisenby v. Lear, 674 F.3d 259, 262-63 (4th Cir.2012); Hartley v. Comerford, No. 3:13cv488/MCR/EMT, 2014 WL 241759, at *5-6 (N.D.Fla. Jan.22, 2014) (denying prisoner's motion to remand case on ground that he is a three-strike filer); Lanier v. Holiday, No. 05-2203-Ml/P, 2005 WL 1513106, at *2 (W.D.Tenn. June 16, 2005) ("Because the complaint asserts claims pursuant to 42 U.S.C. § 1983, over which the federal courts have original jurisdiction, the defendants have an absolute right to remove it from state court.").2 The action was properly removed under 28 U.S.C. § 1441(a) and, therefore, Plaintiff's Motion to Remand, as amended, is DENIED.3

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.)4 In an order issued on December 5, 2013, the Court granted the motions for screening and to stay discovery pending screening and the disposition of Aramark's motion to dismiss. (ECF No. 24.)5

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).6

*4 Plaintiff has not satisfied his burden of demonstrating that the Court should exercise its discretion to appoint counsel in this case. The case is not complex, and nothing in Plaintiff's submission distinguishes this case from numerous other cases that are litigated by pro se prisoners without the assistance of counsel. Finally, there is a severe shortage of attorneys willing to accept appointment to prisoner civil rights cases on a pro Bono basis. Under these circumstances, and entirely apart from the merits of the instant case, Plaintiff's history of filing meritless litigation does not make him a viable candidate for appointment of counsel. The motion for appointment of counsel is DENIED.7

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.)8 For good cause shown, leave to amend is GRANTED. The Court will consider the allegations of the amended complaint, which is now the operative pleading in this matter.9

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.)10 Defendants Oldham and Moore filed a response in opposition to the Motion on March 26, 2014 (ECF No. 46), and Aramark filed its response on March 27, 2014 (ECF No. 47). Because the screening had not been completed when the Motion was filed, the Motion is DENIED.

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:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

*5 As previously noted, the Court cannot remand the case on the ground that Plaintiff is a three-strike filer. Section 1915(g) also is inapplicable in this case because the filing fee was paid by Defendants Oldham and Moore.

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 DFL DAD P, 2006 U.S. Dist. LEXIS 43710, at *5 (E.D. Cal. June 27, 2006) ("Since the filing fee has been paid by counsel for defendant Woodford, plaintiff is not barred by 28 U.S.C. § 1915(g) from proceeding in this court with the instant action.") (report and recommendation), adopted, 2006 U.S. Dist. LEXIS 71167 (E.D.Cal. Sept. 29, 2006); see also Jae v. Stickman, No. 12-1332, 2012 WL 5830633 (W.D.Pa. Nov. 16, 2012) (declining to dismiss removed case filed by three-strike filer sua sponte without addressing whether § 1915(g) provides a basis for dismissal); Lanier, 2005 WL 1513106, at *2 (screening removed case under 28 U.S.C. § 1915A). However, other courts have dismissed removed cases sua Aponte under § 1915(g). See Farnsworth v. Wash. State Dep't of Corr., No. C07-0206-RSM, 2007 WL 1101497 (W.D.Wash. Apr.9, 2007).

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.11 The assessment whether a prisoner is in imminent danger is made at the time of the filing of the complaint. See, e.g., Vandiver v. Vasbinder, 416 F. App'x 560, 561-62 (6th Cir.2011); Rittner v. Kinder, 290 F. App'x 796, 797-98 (6th Cir.2008); Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.2002); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-16 (3d Cir.2001) (en banc).

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.)12 Plaintiff was placed on a 2800 calorie low — fat diet. He was informed that, according to the Jail's Inmate Handbook, "religious diets may be subject to verification by the Chaplain and must be approved by the Assistant Chief of Programs or designee." (Id.)

*6 After Plaintiff was assigned to a housing pod and received a PIN number, he submitted a request to see Chaplain Muhammad, the Islamic volunteer chaplain, to obtain approval for a halal diet. Plaintiff also notified medical staff that, because of his religious beliefs, he was not consuming any meat, was losing weight rapidly, and was "always feeling physically down." (Id.) Medical staff ordered that Plaintiff receive a sack lunch every night, consisting of a sandwich and an orange. Plaintiff was unable to eat the sandwich because it contained meat. (Id.)

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.13

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.)

*7 The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint—

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.

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)).

Whether a complaint is factually frivolous under § § 1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give "judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as true, Iqbal, 129 S.Ct. at 1949-50, a judge does not have to accept "fantastic or delusional" factual allegations as true in prisoner complaints that are reviewed for frivolousness. Neitzke, 490 U.S. at 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338.

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:

*8 Before the recent onslaught of pro se prisoner suits, the Supreme Court suggested that pro se complaints are to be held to a less stringent standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). Neither that Court nor other courts, however, have been willing to abrogate basic pleading essentials in pro se suits. See, e.g., id. at 521, 92 S.Ct. at 596 (holding petitioner to standards of Conley v. Gibson); Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (duty to be less stringent with pro se complaint does not require court to conjure up unplead allegations), cert. denied, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 3366 (1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v. Tisch, 656 F.Supp. 237 (D.D.C.1987) (pro se plaintiff's should plead with requisite specificity so as to give defendants notice); Holsey v. Collins, 90 F.R.D. 122 (D.Md.1981) (even pro se litigants must meet some minimum standards).

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).

*9 Plaintiff cannot sue Defendants under the RFRA. The Supreme Court has held that Congress exceeded its power under § 5 of the Fourteenth Amendment in enacting the RFRA. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Since the decision in Flores, the RFRA applies only to the federal government. See Gonzales v. 0 Centro Espirita Beneficente Uniao do Vetetal, 546 U.S. 418, 425 n. 1, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006); Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 410 (6th Cir.2010). Therefore, Plaintiff cannot challenge the conditions of his confinement at a county jail under the RFRA.

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.14 The Sixth Circuit has held that § 1983 is the exclusive means by which litigants may sue state officials for violations of their constitutional rights. Thomas v. Shipka, 818 F.2d 496, 500 (6th Cir.1987) ("[W]e conclude that it is unnecessary and needlessly redundant to imply a cause of action arising directly under the Constitution where Congress has already provided a statutory remedy of equal effectiveness through which the plaintiff could have vindicated her constitutional rights."), vacated on other grounds, 488 U.S. 1036, 109 S.Ct. 859, 102 L.Ed.2d 984 (1989). The Court therefore CONSTRUES Plaintiff's constitutional claims as arising under 42 U.S.C. § 1983.15

"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.");16 Williams v. Morton, 343 F.3d 212, 220 (3d Cir.2003) (rejecting claim that failure to provide halal meals in place of non-pork, vegetarian diet violated Free Exercise clause); Spight v. Davidson, No. 3:14-mc-0793, 2014 WL 2811829, at *2 (M.D.Tenn. June 23, 2014) ("In short, the plaintiff has no constitutional right to meat. In similar cases where Muslim prisoners following a halal diet have alleged a violation of their rights as a result of being provided a vegetarian diet instead of a diet that included meat slaughtered in accordance with Islamic tenets, federal courts have uniformly held that a prisoner does not have a constitutional right to eat meat.") (collecting cases); Cloyd v. Dulin, No. 3:12-cv-1088, 2012 WL 5995234, at *4 (M.D.Tenn. Nov. 30, 2012) ("Muslim prisoners do not have a right under the First Amendment or the RLUIPA to be provided halal meat entrees; rather, a correctional facility need only provide Muslim prisoners with food that is not `haram' (impermissible).") (collecting cases).

*10 The Court declines to dismiss Plaintiff's First Amendment claim arising from the failure to provide a halal diet under 28 U.S.C. § 1915A(b)(1). Although Plaintiff does not have a First Amendment right to be served halal meats, he does have a right to a nutritionally adequate diet that does not require him to consume non-halal meats. The amended complaint alleges that the Jail provides all inmates with a non-pork diet, that Plaintiff is unable to eat the meat that is offered because it is not halal, and that he is losing weight. Therefore, the amended complaint sufficiently alleges that the diet provided by the Jail is not nutritionally adequate unless Plaintiff consumes the non-halal meats.

The RLUIPA provides, in pertinent part, that:

[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

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:

An inmate asserting a claim under the RLUIPA must first produce prima facie evidence demonstrating that his religious exercise was substantially burdened. See § 2000cc-2(b). An action of a prison official will be classified as a substantial burden when that action forced an individual to choose between following the precepts of his religion and forfeiting benefits or when the action in question placed substantial pressure on an adherent to modify his behavior and to violate his beliefs. The government then bears the burden of persuasion to prove that any substantial burden on the inmate's exercise of his religious beliefs was "in furtherance of a compelling governmental interest" and imposition of the substantial burden on the inmate is "the least restrictive means of furthering that compelling governmental interest." §§ 2000cc-2(b), 2000cc-1(a) (1)-(2). If a substantial burden on religion is found, the RLUIPA employs a less deferential standard the least restrictive means of furthering a compelling governmental interest than the standard applied to religious exercise First Amendment claims, a uniform rule having a reasonable relation to legitimate penological interests.

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.

*11 The Sixth Circuit has addressed the standard for determining whether a governmental policy or practice substantially burdens the exercise of religion only in the zoning context,17 where it stated as follows:

The U.S. Supreme Court has not yet defined "substantial burden" as it applies to RLUIPA. Neither does the statute itself contain any definition of the term. The statute's legislative history, however, indicates that the "term `substantial burden' as used in this Act is not intended to be given any broader interpretation than the Supreme Court's articulation of the concept of substantial burden or [sic] religious exercise." 146 Cong. Rec. S7774-01, 7776 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy). . . . . In short, while the Supreme Court generally has found that a government's action constituted a substantial burden on an individual's free exercise of religion when that action forced an individual to choose between "following the precepts of her religion and forfeiting benefits" or when the action in question placed "substantial pressure on an adherent to modify his behavior and to violate his beliefs," Sherbert [v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)]; Thomas [v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981)], it has found no substantial burden when, although the action encumbered the practice of religion, it did not pressure the individual to violate his or her religious beliefs. See Lyng [v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 449, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)]; Braunfeld [v. Brown, 366 U.S. 599, 605-06, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961)]; see also Episcopal Student Found. v. City of Ann Arbor, 341 F.Supp.2d 691, 702 (E.D.Mich.2004) ("[C]ourts have been far more reluctant to find a violation where compliance with the challenged regulation makes the practice of one's religion more difficult or expensive, but the regulation is not inherently inconsistent with the litigant's beliefs."). Living Water Church of God v. Charter Twp. of Meridian, 258 F. App'x 729, 733-35 (6th Cir.2007); see also Barhite v. Caruso, 377 F. App'x 508, 511 (6th Cir.2010) (applying Living Water standard to prisoner's RLUIPA claim).18

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.").

*12 The Court declines to dismiss Plaintiff's RLUIPA claim arising from the failure to provide him with halal meat for the reasons previously stated in connection with the Free Exercise claim. Although the Jail provides non-pork meals, the amended complaint alleges that Plaintiff's religion requires him to avoid the consumption of all meat that is not halal. The complaint also alleges that Plaintiff has lost weight due to his refusal to eat non-halal meat.

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.)19 The legal standard for evaluating a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure has been previously addressed, supra.

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.)

*13 Aramark has cited decisions from other jurisdictions that dismissed claims against it for failure sufficiently to allege state action. (ECF No. 19-1 at 12-13). However, Aramark has failed to cite the decisions from other jurisdictions holding that it is a state actor under § 1983. See, e.g., Wilmoth v. Aramark Corr. Servs., LLC, No. 10-5048, 2012 WL 4472147, at *5 (W.D.Ark. Aug. 16, 2012) (denying summary judgment, explaining that "Benton County has a constitutional obligation to provide nutritionally adequate meals to the inmates of the BCDC. Benton County has delegated this obligation to Aramark and Aramark contractually assumed this obligation") (report and recommendation), adopted, 2012 WL 4472145 W.D. Ark. Sept. 27, 2012); Frazier v. Aramark, No. CIV S-10-0610 EFB P, 2011 WL 3847188, at *2 (E.D.Cal. Aug.30, 2011) ("Jails have a responsibility to provide adequate food to their inmates. Thus, if a jail completely delegates this duty to a private company, the private company is functioning as a state actor for the purpose of section 1983, because its conduct is fairly attributable to the state." (citation omitted)); McCollum v. City of Philadelphia, No. 98-5858, 1999 WL 463696, at *3 (E.D.Pa. July 3, 1999) ("the court finds that Plaintiff has sufficiently alleged facts which show Aramark was acting under color of state law for purposes of § 1983"); see also Mozden v. Heller, No. 5:13-CV-05160, 2014 WL 2986711, at *2 (W.D.Ark. July 2, 2014) (denying motion to dismiss claim against Aramark because "this Court and other courts have held that a contracted food service provider, such as Aramark, can be held liable under § 1983 as a state actor because, in that situation, the food service provider has assumed the state's constitutional obligation to provide a nutritionally adequate diet to inmates"); Pagan v. Westchester Cnty., No. 12 Civ. 7699(PAE)(JCF), 2014 WL 982876, at *24 (S.D.N.Y. Mar. 12, 2014) ("Here, Westchester County has a duty to provide nutritionally adequate food to those incarcerated within its facility. The County has contracted with Aramark to perform this governmental function. Thus, Aramark is serving a public function in providing daily meals to inmates."); DeJesus v. Aramark Food Serv., Inc., No. 13-5734, 2014 WL 144732, at *3 n. 2 (E.D.Pa. Jan.14, 2014) ("In cases similar to the one at issue here, several courts in this district have considered Aramark to have acted under color of state law for purposes of § 1983 by performing the traditional government function of providing food service at a prison.").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).

*14 This aspect of Aramark's Motion to Dismiss is DENIED.

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:

19.) On or about March 25, 2013 the plaintiff wrote a complaint letter to Defendant Aramark's Operations Manager Patricia Hart, who is on site, about the incoming and outgoing mail and my continueous [sic] request for a halal diet and on March 26, 2013 Defendant Aramark representative on site responded with "Your food complaint will be forwarded to the kitchen." 20.) On or about April 1, 2013 a town hall meeting was conducted where the plaintiff was present at all times when he ask the Aramark food service representative about the type of meat it serve since the only thing that comes out is water with no grease or oil mixed with it and the Aramark food service representative couldn't explain the type of meat it serves, but stated he know it is not processed meat.

(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.

*15 Therefore, the Court GRANTS Aramark's motion to dismiss the Free Exercise claim against it on the ground that Plaintiff has not sufficiently alleged that his injury was due to a policy or custom of Aramark. This dismissal is without leave to Plaintiff's right to file a second amended complaint that cures that deficiency if he is able to do so.

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.

*16 On January 17, 2014, Plaintiff filed a motion for a temporary restraining order and preliminary injunction, entitled "Memorandum Of Law In Support Of Plaintiff's Motion For A Temporary Restraining Order And Preliminary Injunction." (ECF No. 36.) Plaintiff's proposed order would direct that "all the defendants shall arrange for the plaintiff to provide his own means for the halal meats to be brought to the Shelby County Jail and prepared by Defendant Aramark Correctional Service, LLC and place on each one of the plaintiff's meal, including his diabetic sack lunch he receives every evening before lockdown." (ECF No. 36-2 at 1-2.) Defendants Shelby County, Moore, and Oldham have not responded to this motion and have not sought an extension of time in which to do so.21

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.

IT IS SO ORDERED.

FootNotes


1. Plaintiff originally named Defendant as Steven Worlle. The court noted the incorrect spelling of Defendant's name during a Status Conference and directed the Clerk of the Court to amend the caption to reflect Defendant as Steven Woitte. See [#51].
2. Where the court directly quotes from Plaintiff's papers, it maintains the spelling, punctuation, and grammar used by Plaintiff without correction or the use of [sic].
3. Prior to the Status Conference, an order from the court had been returned as undeliverable. See [#50]. Two weeks after the Status Conference was held, another order that the court had mailed prior to the Status Conference was also returned as undeliverable. See [#54]. The court then re-sent the orders relating to the Motion to Dismiss, the Notice of Entry of Appearance for counsel for Defendant, the Courtroom Minutes, and the Minute Order reflecting the voluntary dismissal of Defendants Dumell and Richard to Mr. Weinstein at his updated address. See [#53]. That mailing was not returned as undeliverable.
4. RLUIPA targets only two areas for protection: land use (section 2 of the Act, 42 U.S.C. § 2000cc) and the religious exercise of institutionalized persons (section 3 of the Act, 42 U.S.C. § 2000cc-1). Plaintiff's allegations implicate section 3.
5. Even if this court were to recommend dismissing the action on the basis that Plaintiff specified that Defendant was not "acting under the color of state law," it would recommend dismissal without prejudice, and, under Federal Rule of Civil Procedure 15(a), Plaintiff would likely be entitled to amend his pleading to specify that Defendant Woitte is sued in his official capacity.
6. Defendant agrees that the "under the color of state law" analysis within the context of a § 1983 claim is equally applicable to Plaintiff's RLUIPA claim. [#45 at 4, n.3].
7. The exceptions are Strope and Harrison v. Richardson, No. 09-3050-SAC, 2009 WL 735128 (D. Kan. March 19, 2009).
8. 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 Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 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) (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"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, 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, plaintiffs 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).
1. The court shall dismiss claims at any time if it determines that Plaintiff fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
1. "[#125]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
2. Defendant Jones was not a party to the motion which was the subject of the recommendation.
3. Although the motion putatively was filed as a motion to dismiss under Rule 12, the magistrate judge (to whom the motion was referred for recommendation) converted it into a motion for summary judgment based on the fact that Mr. Jones submitted evidence in support of the motion. (See Courtroom Minutes [#81], filed September 24, 2105.)
4. All of this analysis should have been rather obvious from a thorough and careful reading of the recommendation and order. I have done nothing more here than merely reiterate the content of the magistrate judge's recommendation and my order. Asking for clarification under these circumstances wastes judicial resources and imposes an undue burden on the court. I expect and require counsel to be more judicious in making such requests in the future.
1. District Judge Robert E. Blackburn dismissed Plaintiff's claims against all defendants in their individual capacities under RLUIPA, Plaintiff's claims against all defendants in their individual capacities under RLUIPA for injunctive relief and compensatory damages, and Plaintiff's claims against all defendants under the Civil Rights of Institutionalized Persons Act of 1983, Colorado Revised Statutes § 17-4-101(a), and Article II, Section 4 of the Colorado Constitution. (See Doc. No. 124, filed Jan. 14, 2016.) Thus, the only claims remaining against Defendant Jones are Plaintiff's constitutional claims under 42 U.S.C. § 1983 and Plaintiff's claims for nominal and punitive damages under RLUIPA.
1. Paragraph symbols (if) refer to paragraphs of the second amended complaint, filed January 29, 2015.
2. According to the Defendants, the correct spelling of this defendant's surname is Mike sell (not Mikasell).
3. The second amended complaint does not refer to the RFRA by name, but cites the statute, 42 U.S.C. § 2000bb et seq.
1. Copies of these unpublished orders are attached.
2. Plaintiff attached five grievances to the complaint to support his allegations; however, only one of the grievances refers to defendant Anderson. That grievance alleges that on February 17, 2007, plaintiff was given spoiled vegetables and that on February 19, 2007, he received an inadequate serving of eggs and spoiled vegetables. He also claims food was served on dirty trays on March 19. (Doc. 1, Exs. 1,2,5,22, 40-42.) These claims, however, are not included in Count 2. In the attached exhibits, plaintiff claims he and other prisoners receiving the religious diet line did not receive a holiday meal on July 4, 2007. Rather, he claims they were served unappetizing food. Defendant Anderson was present at the meal, but plaintiff did not complain about the meal to a food-service supervisor. (Doc.35-4, Anderson affidavit.)
1. Pursuant to 28 U.S.C. § 1915(b)(1), plaintiff remains obligated to pay the full $350.00 district court filing fee in this civil action. Being granted leave to proceed in forma pauperis entitles him to pay the filing fee over time through payments deducted automatically from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2).
2. The "under color of state law" requirement is a "jurisdictional requisite for a § 1983 action." West, 487 U.S. at 42; Polk County v. Dodson, 454 U.S. 312 (1981). A defendant acts "under color of state law" when he "exercise[s] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id. at 49; Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Yanaki v. Iomed, Inc., 415 F.3d 1204, 1208 (10th Cir.2005), cert. denied, 547 U.S. 1111 (2006).
3. Nor does plaintiff have an established cause of action against CCA/LDC employees under 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395-97 (1971). Bivens held that "plaintiffs may sue federal officials in their individual capacities for damages for Fourth Amendment violations, even in the absence of an express statutory cause of action analogous to 42 U.S.C. § 1983." Id.; Carlson v. Green, 446 U.S. 14, 18 (1980)(recognizing a parallel cause of action for Eighth Amendment violations). However, the proper defendant in a Bivens action is a federal official or agent, not an employee of a private corporation.
4. Elsewhere plaintiff alleged he was released back into general population on August 21, 2008.
5. Plaintiff's exhibit of his grievance on this matter indicates he was given a mattress and a pillow after nine hours in the strip cell.
6. Plaintiff's allegations of harm to his parole status and sentence credit are not supported by any factual allegations whatsoever. In any event, challenges to parole decisions or denial of sentence credit which could result in earlier release, must be litigated in a habeas corpus petition, before a cause of action for money damages is stated under § 1983. See Heck v. Humphrey, 512 U.S. 477 (1994).
1. Plaintiff's initial pleading named Westchester County Department of Correction as a Defendant. (See Compl. 1 (Dkt. No. 2).) Pursuant to an Order issued September 7, 2017, Westchester County was substituted for Westchester County Department of Correction. (See Dkt. No. 8).

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.

2. Occasional words and phrases in Plaintiff's Amended Complaint are written in all capital letters or in parenthesis. Here and elsewhere, when quoting such words and phrases, this Opinion reverts to conventional capitalization for ease of readability.
3. Plaintiff attaches various grievances and letters sent regarding these issues to the Amended Complaint. (See Compl. Ex. D-L.)
4. The Court denies Plaintiff's request for attorney's fees, because "a pro se litigant who is not a lawyer is not entitled to attorney's fees." Kay v. Ehrler, 499 U.S. 432, 435 (1991) (italics omitted).
5. On August 16, 2016, August 30, 2016, and September 9, 2016, Plaintiff wrote the Court asking about the status of his case. (Dkt. Nos. 4, 6, 10.)
6. On January 26, 2017, Counsel for Aramark informed the Court that Aramark had not yet been served, but that Counsel was willing to accept service on behalf of Aramark in the interest of expediting the matter. (Dkt. No. 36.)
7. On March 24, 2017, Plaintiff filed an application requesting the Court appoint pro bono counsel. (Dkt. No. 49.) On April 26, 2017, the Court denied the request without prejudice. (Dkt. No. 51.)
8. On July 11, 2017 and August 3, 2017, Plaintiff wrote the Court inquiring about the status of his case and requesting that the case be heard for settlement or placed on the trial calendar. (Dkt. Nos. 57-58.) The Court informed Plaintiff that the Court would decide the pending motions in due course and that settlement or trial, if necessary, would be addressed following decision on these motions. (Dkt. No. 59.)
9. The Court notes that Aramark does not cite any case law when arguing that the test for whether a private entity is a state actor has not been satisfied as to Aramark. (Def. Aramark's Mem. 8-9.) This is problematic for Aramark in light of the Court's decision in Torres v. Aramark Food, No. 14-CV-7498, 2015 WL 9077472 (S.D.N.Y. Dec. 16, 2015), holding that Aramark is a state actor when providing food to inmates in a state prison. Id. at *4-6.
10. Aramark includes with its Motion To Dismiss the agreement between Aramark and Westchester County to provide food services, a document that is outside the Amended Complaint. (Decl. of Joseph Wodarski, Esq. Ex. A (Dkt. No. 46).) As the agreement is not "appended to the complaint or incorporated in the complaint by reference," it is inappropriate for consideration on a motion to dismiss. Leonard, 199 F.3d at 107.
11. Plaintiff sues Roberts and Tosi in their official and individual capacities. Section 1983 claims against municipal employees sued in their official capacity are treated as claims against the municipality itself. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (claim against a municipal employee in his official capacity is deemed brought against the municipality itself). "[W]hen the defendant . . . [is an] individual sued in his official capacity . . . the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom." Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004). The Court addressed Westchester County's Monell liability above. See supra Part 11.B.3.b.
12. Oddly, County Defendants rely on Joseph v. Fischer, No. 08-CV-2824, 2009 WL 3321011, at "18 (S.D.N.Y. Oct. 8, 2009) (holding after "Iqbal, a government official's act of affirming the denial of a grievance that alleges the deprivation of a constitutional right, without more, is insufficient to establish that the defendant was personally involved in depriving plaintiff of that right"), without even acknowledging the clear divide among the district courts in the Second Circuit on this question.
13. Because the Court has dismissed Westchester County, Aramark, and Roberts, the only Defendants alleged to be responsible for the lack of Kosher meals, the Court only addresses the Free Exercise claim regarding the lack of Jewish services.
14. The Second Circuit has acknowledged that "[i]t has not been decided in this Circuit whether, to state a claim under the First Amendment's Free Exercise Clause, a prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs." Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014); see also Williams v. Does, 639 Fed.Appx. 55, 56 (2d Cir. 2016) ("Assuming" but not deciding "that the substantial burden requirement applies.") The Second Circuit chose not to confront this question—or rather, not to alter the previous assumption that the substantial burden test is a threshold question. Holland, 758 F.3d at 220. This Court has already chosen to follow the analysis in Holland and thus will proceed under the assumption that the substantial burden test is still valid. See Gilliam v. Baez, No. 15-CV-6631, 2017 WL 476733, at "4 n.5 (S.D.N.Y. Feb. 2, 2017).
15. Aramark is only responsible for providing prison meal services, and Plaintiff does not allege Aramark was in any way involved in the lack of regular Jewish services at WCDOC. (Def. Aramark's Mem. 3 n.2.) Thus, to the extent Plaintiff alleges a First Amendment Free Exercise claim against Aramark regarding the lack of regular Jewish services, that claim is dismissed.
16. Courts in other circuits have dismissed Free Exercise claims alleging a lack of regular religious services for every religion. See, e.g., Smith v. Kyler, 295 Fed.Appx. 479, 481-82 (3d Cir. 2008) (holding that the First Amendment was not violated by a prison policy that only provided chaplains for "the largest major faith groups" and prohibited "group worship in the absence of an approved, volunteer [f]aith [g]roup Meader," because the prison "ha[d] a legitimate interest in managing limited financial resources and in maintaining prison security," and the plaintiff "ha[d] alternative means of practicing his religion," including "maintain[ing] religious books and materials in [his] cell[ ]" and "elect[ing] to have a Personal Religious Advisor worship with [him]").
17. To the extent Plaintiff alleges an Establishment Clause claim against Aramark, that claim is dismissed for the same reason.
18. To the extent Plaintiff alleges a Fifth Amendment claim against Aramark, that claim is dismissed for the same reason.
19. County Defendants note that it is unclear from the Complaint whether Plaintiff was a pre-trial detainee or convicted prisoner while incarcerated at WCDOC. (Cty. Defs.' Mem. 11.) The Second Circuit recently held that deliberate indifference claims under the Due Process Clause of the Fourteenth Amendment are analyzed differently than the same claims under the Eighth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). However, the Second Circuit limited its holding to pretrial detainees, who "have not been convicted of a crime and thus may not be punished in any manner." Id. at 29 (internal quotation marks omitted); see also id. at 33-34 (relying on the Supreme Court's decision in Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), which analyzed excessive force claims by pretrial detainees under the Fourteenth Amendment); McCray v. Lee, No. 16-CV-1730, 2017 WL 2275024, at "4 n.1 (S.D.N.Y. May 24, 2017) ("The status of a plaintiff as either a convicted prisoner or pretrial detainee dictates whether his conditions of confinement are analyzed under the Eighth or Fourteenth Amendment. . . . While the decision in Darnell sets forth a new analysis for claims brought by pretrial detainees, the analysis under the Eighth Amendment remains intact." (citations omitted)). Because the Court finds Plaintiff has failed to satisfy the objective prong, which is evaluated the same way under both the Eighth Amendment and Fourteenth Amendment, Darnell, 849 F.3d at 30, the Court need not resolve Plaintiff's status at this juncture. However, because the information is likely to become relevant at a later date, the Parties are hereby ordered to inform the Court by no later than April 30, 2018 whether Plaintiff was a convicted prisoner or a pretrial detainee at WCDOC on February 4, 2016.
20. In Darnell, the Second Circuit indicated that this prong should be referred to the "mens rea prong," rather than the "subjective prong," to prevent confusion. See Darnell, 849 F.3d at 29 (italics omitted).
21. To the extent Plaintiff alleges an Eighth Amendment claim against Aramark, that claim is dismissed for the same reasons.
22. To the extent Plaintiff alleges a Fourteenth Amendment claim against Aramark, that claim is dismissed for the same reasons.
23. To the extend Plaintiff is invoking RLUIPA to obtain injunctive relief against Defendants, it is denied for the reasons discussed below.
24. To the extent Plaintiff alleges a RLUIPA claim against Aramark, that claim is dismissed for the same reason.
25. As of December 26, 2017, Plaintiff appears to be incarcerated at Putnam County Correction Facility. (See Dkt. No. 60.) Even if Plaintiff is incarcerated, his claims regarding his time at WCDOC are nonetheless still moot as he is incarcerated at a different facility. See Salahuddin, 467 F.3d at 272 ("[A]n inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility.").
26. Aramark does not argue the New York Constitutional claim against it fails on the merits or explain how the Court should evaluate Aramark's private entity statutes in regards to the claim. The Court declines to sua sponte resolve this issue without briefing, and thus, will not dismiss that claim at this time. Aramark is free to address the applicability of the New York State Constitution to claims against it as a private entity and the merits of the claim in any subsequently filed motions.
27. To the extent Plaintiff alleges a claim pursuant to New York Civil Rights Law § 40-c against Aramark, that claim is dismissed for the same reason.
28. To the extent Plaintiff alleges a claim of intentional infliction of emotional distress against County Defendants, that claim is dismissed for the same reason.
1. Although the case caption uses the designation "et al.", the Court will not speculate about the identity of any individual or entity that Plaintiff intends to sue.
2. But see Bartelli v. Beard, No. 3:CV-08-1143, 2008 WL 4363645, at "2 (M.D.Pa. Sept.24, 2008) (remanding removed case to state court to state court to allow prisoner to litigate potentially meritorious claims).
3. The Anti-Injunctive Act, on which Dotson relies (ECF No. 3 at 2-3), is inapplicable here. The Act, 28 U.S.C. § 2283, states that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect and effectuate its judgments." The Court has not issued an injunction staying proceedings in the state court. Instead, federal law precludes the state court from proceeding in a removed case. 28 U.S.C. § 1446(d). In his amendment to the Motion to Remand, Plaintiff cites Tennessee Code Annotated § 41-21-812(b), which states that "[a] court may allow an inmate who has not paid any costs or expenses assessed against the inmate to file a claim for injunctive relief seeking to enjoin an act or failure to act that creates a substantial threat of irreparable injury or serious physical harm to the inmate." (ECF No. 14-1 at 1.) Plaintiff argues that he may be unable to litigate this case in federal court because he is a three-strike filer and that he is entitled to pursue his claim for injunctive relief in state court. (Id. at 1, 3.) Because the complaint asserts claims under the United States Constitution and federal law, Defendants are entitled to remove the suit. The statute cited by Plaintiff does not provide a substantive cause of action but, rather, is contained in a title of the Tennessee Statutes Annotated governing lawsuits by inmates. That statute cannot alter the right of Defendants Oldham and Moore to remove a suit over which there is federal jurisdiction.
4. The Motion referred to the Motion to Dismiss filed by Aramark on November 22, 2013. (ECF No. 19.)
5. The result of the Court's screening under 28 U.S.C. § 1915A(b) is addressed infra.
6. These factors are important, because § 1915(e)(1) "does not authorize the federal courts to make coercive appointments of counsel" to represent indigent civil litigants. Mallard v. United States Dist. Ct 490 U.S. 296, 310, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989).
7. On November 22, 2013, Aramark filed a Motion to Dismiss. (ECF No. 19.) Plaintiff filed a response in opposition to the motion, which was titled "Motion In Opposition of Defendants Motion For Screening, Motion For Dismissal For Failure To State a Claim, and Motion To Stay Discovery," on December 18, 2013. (ECF No. 29.) Aramark filed a reply on January 15, 2014. (ECF No. 34.) Because the Court has granted the motion to refer the case for screening pursuant to 28 U.S.C. § 1915A(b), the Court will address Aramark's Motion, to the extent necessary, after the case has been screened.
8. On February 7, 2014, Defendants Oldham and Moore filed an untimely response to the Motion, with no explanation for their late filing. (ECF No. 39.) The Court declines to consider that filing.
9. As discussed infra, the Court will consider the allegations of the original complaint to assess whether Dotson adequately alleged that he was in imminent danger of serious physical injury when he commenced this action. On January 17, 2014, Plaintiff filed a motion seeking a temporary restraining order and a preliminary injunction, titled "Memorandum of Law In Support Of Plaintiff's Motion For A Temporary Restraining Order And Preliminary Injunction." (ECF No. 36.) That Motion will be addressed infra, after the case has been screened.
10. On February 14, 2014, the Clerk docketed Plaintiff's First Request for Production of Documents. (ECF No. 42.) That document should not have been accepted for filing because discovery requests and responses are only filed when the Court so requests or when the Local Rules or the Federal Rules of Civil Procedure otherwise permit. See Local Rule 26.1(a)(2). Plaintiff also was not entitled to serve discovery requests until the stay of discovery had been lifted. Also on February 14, 2014, Plaintiff filed a Proposed Early Settlement Agreement. (ECF No. 43.) Settlement proposals are not properly docketed. That filing is STRICKEN from the docket.
11. The Court also declines to dismiss the case sua sponte because Plaintiff failed to pay the sanctions imposed in previous cases. The sanctions orders contained no provision barring Plaintiff from filing future cases until the sanction had been paid. See Gay, 682 F.3d at 596 ("As a last resort, when the litigant refuses to pay outstanding fees imposed for abusing the judicial process, either we or a district court can institute a filing bar to prevent a plaintiff from bringing future suits until he pays the outstanding fines.").
12. Although the original complaint is no longer the operative pleading in this matter, it is relevant to whether Plaintiff alleged that he was in imminent danger of serious physical injury when he commenced his state-court action.
13. The Clerk filed this case despite the restrictions imposed in case number 00-2229, which require Plaintiff to obtain leave of court before filing any civil action. In case number 02-2086, those restrictions were made applicable to removed actions. On further reflection, imposition of the filing restrictions on removed actions is inappropriate because it was not Plaintiff who has removed the case to federal court. The Court also no longer requires three-strike filers to seek leave to file new lawsuits. Therefore, the Court MODIFIES the restrictions imposed in case numbers 00-2229 and 02-2086 to eliminate the requirement that Plaintiff seek leave to file future cases and that direct the Clerk not to file any complaint submitted by Plaintiff without leave of Court. All future cases submitted by Plaintiff, if any, will be assigned civil docket numbers for statistical purposes. All other restrictions imposed in case numbers 00-2229 and 02-2086 remain in force.
14. Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."
15. The Sixth Circuit has cautioned district courts to avoid construing complaints that assert claims directly under the Constitution as arising under 42 U.S.C. § 1983 in cases involving "a carefully drafted complaint filed by a plaintiff represented by counsel." Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1064 (6th Cir.2008). Those concerns are absent in this case.
16. The Third Circuit in Abdul-Aziz also rejected the claim, advanced by Plaintiff in this case (ECF No. 33-1 at 4, ¶ 15), that his rights under the Equal Protection Clause were violated because Jewish inmates are served kosher meals. 2014 WL 2699758, at *3 ("Jewish inmates received Kosher meals at Passover because they were determined to be necessary for religious observance. Because the vegetarian meals did not violate Islam's proscription on non-Halal meat, while non-Kosher meals would not have met the religious requirements of Passover, reasonable penological interests were served by the differential treatment." (citation omitted)).
17. The statutory provision concerning land use regulations, found at 42 U.S.C. § 2000cc(a)(1), is, on its face, similar to the provision concerning prisoners, found at 42 U.S.C. § 2000cc-1(a)(1).
18. See also Living Water, 258 F. App'x at 737 ("We decline to set a bright line test by which to `measure' a substantial burden and, instead, look for a framework to apply to the facts before us. To that end, we find the following consideration helpful: though the government action may make religious exercise more expensive or difficult, does the government action place substantial pressure on a religious institution to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?").
19. On December 23, 2013, the Court extended Aramark's time to file its reply until January 15, 2014. (ECF No. 31.)
20. It is not proper for an attorney to cherry-pick only the decisions that are favorable to his position. See, e.g., W.D. Tenn. Guidelines for Conduct, § 1.4(a) (a lawyer should "[n]ever knowingly misstate fact or law, regardless of any pressure to do so"). In denying a Rule 12(b)(6) motion filed by Aramark in a prisoner case that raised a similar issue, one judge has stated that in general, Aramark has picked out and relied on favorable cases without at the same time acknowledging that other courts have disagreed and reached the opposite conclusion. . . . In its opening brief, Aramark cited to various cases that come from all over the country. . . . The citation to unreported decisions from fairly remote jurisdictions (relative to our court in Illinois) shows that Aramark's outside counsel in this case or perhaps Aramark's general counsel has access to a large number of cases that Aramark is no doubt involved in across the country. It is one thing to cite to these cases, copies of which were at least attached to the brief, but it is another to do so in a way that gives the impression that they represent a uniform conclusion across the country. This does not appear to be the case, at least based on this Court's own brief Westlaw research. Without much difficulty, we found the following cases, none of which were acknowledged in Aramark's opening brief: Wilmoth v. ARAMARK Correctional Services, LLC, 2012 WL 4472147, *5 (W.D.Ark. Aug.16, 2012) ("ARAMARK maintains it is simply a private food service contractor for a detention facility and has not been delegated penal responsibilities. It maintains it cannot be held liable under § 1983 because it is not a state actor. I reject this argument."); Setzer v. ARAMARK Correctional Services, 2011 WL 7071078, "3 (W.D.Ark.Nov. 22, 2011) (same); Johnson v. ARAMARK, 2012 WL 219503, "2 n. 3 (W.D.Ky.Jan.25, 2012) (because Aramark contracted with the state of Kentucky to provide food services to the prisons, it is clear that Aramark can be considered a state actor for purposes of § 1983); Frazier v. ARAMARK, 2011 WL 3847188. *2 (E.D.Cal. Aug. 30, 2011) (denying a motion to dismiss brought by Aramark and stating: "if a jail completely delegates this duty to a private company, the private company is functioning as a state actor for the purpose of section 1983, because its conduct is fairly attributable to the state"); McCullum v. City of Philadelphia, 1999 WL 493696, *3 (E.D.Pa. July 13, 1999) ("the court finds that Plaintiff has sufficiently alleged facts which show Aramark was acting under color of state law for purposes of § 1983"); McRoy v. Sheehan, 2004 WL 1375527, "2 (N.D. Ill. June 17, 2004 (Mag. J. Brown) ("As a contractor performing the public function of running a jail[,] Aramark is acting under the color of state law and is treated the same as a municipality for purposes of § 1983."). The bottom line is that Aramark should be more careful in the future in how it represents the case law to this Court.

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.

21. On January 24, 2014, Aramark filed its Motion and Supporting Memorandum for an Extension of Time to File Responses to Plaintiff's Pending and Future Motions. (ECF No. 38.) Because the Court has dismissed Aramark as a party to this action, that motion is DENIED as moot.
Source:  Leagle

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