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Stephen G.Burke v. Harley Lappin et al

October 21, 2011


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff, a prisoner currently at the United States Penitentiary ("USP") in Lewisburg, Pennyslvania, sues former Bureau of Prisons ("BOP") Director Harley Lappin and three other BOP officials under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, and the First, Fifth and Eighth Amendments to the Constitution. The complaint arises from the conditions of plaintiff's confinement at the Federal Correctional Institution ("FCI") in Talladega, Alabama, from which he was recently transferred. In addition to Lappin, plaintiff sues Joyce Conley, former Assistant BOP Director for Correctional Programs, her apparent successor, D. Scott Dodrill, and John Dignam, Chief of BOP's Office of Internal Affairs. See Compl. ¶¶ 7, 14, 15. Plaintiff sues all of the defendants in their personal capacity for monetary damages and Lappin and Dodrill also in their official capacity for declaratory and injunctive relief. Id. ¶ 8.

Defendants move to dismiss the complaint under Rules 12(b)(1) for lack of subject matter jurisdiction, (b)(2) for lack of personal jurisdiction, (b)(3) for improper venue, (b)(5) for insufficient service of process, and (b)(6) for failure to state a claim upon which relief can be granted. See Mem. of P. & A. in Support of Defs.' Mot. to Dismiss Pl.'s Compl. ("Defs.' Mem.") [Dkt. # 17] at 1. Upon consideration of the parties' submissions, the Court finds that (1) sovereign immunity bars the RFRA claim for damages, and (2) plaintiff has failed to state a Bivens claim against the named defendants. In addition, the Court finds that plaintiff's remaining First Amendment claim and claims for injunctive and declaratory relief are moot in light of his transfer from FCI Talledega, where the claims arose. Therefore, the Court will grant defendants' motion to dismiss the damages claims under Rules 12(b)(1) and (b)(6), deny plaintiff's pending motions, and dismiss the case in its entirety.*fn1


Plaintiff brings the following three causes of action: "Claim One: Violation of U.S. Const., Amend. I (Religious Accommodation and Exercise thereof) by defendants Lappin, Conley, Dodrill," Compl. ¶ 9; "Claim Two: Violation of U.S. Const., Amend. V (Denial of Due Process) by defendants Lappin and Conley," id. ¶ 10; "Claim Three: Violation of U.S. Const. VIII (Conditions of Confinement) by defendants Lappin, Conley, Dodrill and Dignam," id. ¶ 11.

In Claim One, plaintiff states that he is a devout practitioner of Judaism who must consume only kosher foods "as set forth by the Laws of Kashruth," prepared in a manner that avoids contact with non-kosher foods. Compl. ¶¶ 16-18. "[F]or many years," BOP allegedly "provided [J]ewish inmates with a nutritional amount of fresh vegetables, fruits, and generally prepackaged hot or cold entrees from appropriate vendors." Id. ¶ 19. However, in 2009, Lappin and Conley allegedly "approved" a change to the kosher offerings that "eliminate[d] all fresh vegetables, significantly reduce[d] fresh fruit, and convert[ed] entirely to prepackaged entrees, whole grain bread."*fn2 Id. ¶ 20. Allegedly, as a result of the change, plaintiff "'was repeatedly placed on [an] alternative diet program," that served him "a salami (non-kosher) sandwich, cheese sandwich, piece of fruit and container of milk." Id. ¶ 22. Plaintiff further alleges that "this meal was prepared in a manner allowing contact with non-kosher foods" and was delivered to his cell in an unsanitary manner. Id. Because of the alleged "contamination" of his food, plaintiff alleges that he went "for days and weeks without consuming any meals subsisting upon water only . . . ." Id. ¶ 23.

According to plaintiff, Lappin, Conley and Dodrill "were made aware through letters, [administrative] appeals, [and] inquiries from member[s] of congress regarding the practices at [BOP] facilities [but] [they] took no action to abate the practices and to offer Plaintiff and others similarly situated a kosher diet." Id. ¶¶ 24-25.

In Claim Two, plaintiff alleges that in November 2008, Lappin "promulgated Program Statement 5217.01 thus creating the SMU [Security Management Unit] Program." Id. ¶ 28. According to plaintiff "SMU inmates lack access to substantive educational or rehabilitative programs. Televisions were installed, but were ordered left off by [] Lappin. Phone, visitation and mail access [are] curtailed, censored, and highly monitored in SMU." Id. ¶ 31. Following a hearing on March 16, 2009, conducted over plaintiff's objection, plaintiff was designated to the SMU where he "was subjected to the aforementioned conditions." Id. ¶ 36.

In Claim Three, plaintiff alleges that Lappin, Conley, and Dodrill were aware of the conditions at SMU but "failed to take any action to investigate or correct those conditions." Id. ¶ 39. In addition, plaintiff faults Dignam for failing to investigate alleged misconduct by the staff of the Special Investigative Supervisor. Id. ¶¶ 40-41.

Plaintiff filed this action in April 2011 while confined at FCI Talledega. He seeks declaratory and injunctive relief and monetary damages exceeding $2 million. Id. ¶¶ 43-46.


1. Subject Matter Jurisdiction

Under the doctrine of sovereign immunity, "the United States may not be sued without its consent and . . . the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). Such consent may not be implied, but must be "unequivocally expressed." United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). "RFRA does not waive the federal government's sovereign immunity for damages." Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1026 ...

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