United States District Court, D. Columbia.
FRANCIS AULETA, a practicing Shaman Elder, and Legally Ordained High Priest, also known as RAVENHAWK, also known as BLACKHAWK, Pro se, Marcy, NY.
For UNITED STATES DEPARTMENT OF JUSTICE, Civil Rights Division, by Eric Holder, Attorney General of the United States, Defendant: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC; Carl Ezekiel Ross, U.S. ATTORNEY'S OFFICE, Washington, DC.
For MERRILY A. FRIEDLANDER, Chief, Coordination and Review Section, in her official and individual capacity, JOHN SMITH, Chief, Special Litigation Section, in his official and individual capacity, N'ZINGA ADELONA, Investigator, individual and official capacity, AYANNA BROWN, Investigator, in her official and individual capacity, ANTHONY GALES, Investigator, in his official and individual capacity, Defendants: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
RICHARD W. ROBERTS, Chief United States District Judge.
Plaintiff, a New York state prisoner, sues the United States Department of Justice, Civil Rights Division, " by and through" Attorney General Eric Holder and five DOJ employees for their alleged " failure . . . to discharge affirmative duties imposed" by federal law and DOJ regulations. Am. Compl. [Doc. # 14-1]. Plaintiff alleges that the New York State Department of Corrections and Community Supervision (" DOCCS" ) has refused to protect the rights of " any non-mainstream religion and/or persons such as [p]laintiff whom do not contain a sufficient amount, according to DOCCS' policies, of Native-American blood-lineage." Am. Compl. ¶ 1. He sues the DOJ defendants for declining " to intervene" in the alleged discriminatory and retaliatory practices of the DOCCS employees. Id. Plaintiff invokes the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (" Prohibition against exclusion from participation in, denial of benefits of, and discrimination under Federally assisted programs on ground of race, color, or national origin" ); and 42 U.S.C. § 3789d (" Prohibition of Federal control over State and local criminal justice agencies; prohibition of discrimination" ). Id.
Pending is the Federal Defendants' Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure [Doc. # 20]. Plaintiff has opposed the motion. See Mem. of P. & A. Supp'g Pl.'s Opp'n to Federal Defendant's Mot. to Dismiss, and in Supp. of Pl.'s Cross-Mot. for Remand of Compl. [Doc. ## 27, 28]. Because the challenged decisions are not subject to judicial review, and no claim has been stated against the federal officials in their personal capacity, this case will be dismissed. Consequently, plaintiff's pending motion for a default judgment [Doc. # 31] will be denied, and defendants' motion to vacate or set aside the entries of default [Doc. # 33] will be granted. See Fed.R.Civ.P. 55(d) (" A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court." ).
The relevant facts alleged are as follows. Plaintiff is a practitioner of the Wicca religion, a legally ordained Shaman, Medicine Man or Witch Doctor, and an " open advocate . . . for forms of non-mainstream religions, and the [f]reedom of those whom practice these religions to exercise their right to do so[.]" Am Compl. ¶ ¶ 27, 29. Plaintiff's religion " is based on Native American and Wiccan beliefs and practices." Id. ¶ 5(b). At an unspecified time, plaintiff wrote an " opinion article to the United States Commission on Civil Rights," which " took it upon themselves to ask the DOJ to inquire into the issues set forth in the [a]rticle, and to report their findings to the 'Commission.'" Id. ¶ ¶ 29-30. As a result, plaintiff received a complaint packet from DOJ in April 2009 and submitted " a detailed complaint" to DOJ documenting nearly eight years of abusive conduct by DOCCS staff toward prisoners seeking to practice non-traditional religions. Id. ¶ ¶ 32-34. Plaintiff contends that his submission " triggered the mandatory duty of the DOJ to intervene and protect [p]laintiff from unlawful retaliation, and unlawful discrimination." Id. ¶ 35. Among other wrongs, plaintiff states: to " stifle [his] advocacy and practices, in October of 2008[,] DOCCS' Staff confined [him] for wearing a religious amulet, and ultimately caused [his removal] from 'accommodating' facilities, to non-accommodating facilities rampant with discriminatory views" and suppressive tactics. Id. ¶ 31.
Plaintiff filed the initial complaint in the U.S. District Court for the Northern District of New York, which transferred the case here in November 2011 upon determining that the DOJ defendants located in the District of Columbia were " the only remaining [d]efendants" and the " only allegations of wrongdoing contained in the Complaint occurred, if at all, in the District of Columbia." Auleta v. DOJ, No. 9:11-CV-0951 (N.D.N.Y. Nov. 29, 2011) (Dec. and Order at 5 [Doc. # 7]) (" Nov. 29, 2011 Dec." ). It was noted that plaintiff had pending in the Western District of New York two separate civil actions arising from " the alleged misconduct by DOCCS staff and [Assistant Attorney General Toni] Logue with respect to the violation of his right to practice his religion." Id. at 2, n.3.
On September 5, 2013, the Clerk of Court entered defaults against DOJ employees Merrily A. Friedlander, John Smith, N'zinga Adelona, Ayanna Brown, and Anthony Gales based on their failure to appear and defend against the complaint, which purportedly was served upon each defendant in his or her individual capacity on March 27, 2012. See Defaults [Doc. # 30].
I. DEFAULT MOTIONS
The record shows that the individual-capacity summonses were delivered to Deputy Director Shauna Robinson at DOJ headquarters. See Process Receipts and Returns [Doc. # 12]. The United States argues correctly that the returns are not proof of service sufficient to exercise personal jurisdiction over the individual defendants absent any evidence that Robinson was " an agent authorized by appointment or by law to receive service of process." Fed.R.Civ.P. 4(e); see Def.'s Mot. to Vacate or Set Aside Default Entry and Opp'n to Pl.'s Mot. for Default J. at 6-8 [Doc. # 33]; Simpkins v. District of Columbia, 108 F.3d 366, 369, 323 U.S.App.D.C. 312 (D.C. Cir. 1997) (" [D]efendants in [personal-capacity] Bivens actions must be served as individuals, pursuant to Rule 4(e)." ) (citing cases); see also Ali v. Mid-Atlantic Settlement Services, Inc., 233 F.R.D. 32, 35-36 (D.D.C. 2006) (discussing personal service requirements); Leichtman v. Koons, 527 A.2d 745, 747 (D.C. 1987) (" Delivery to [defendant's] place of business falls into none of the categories" for perfecting personal service in the District of Columbia pursuant to Fed.R.Civ.P. 4(e)(1)).
In addition, none of the three factors considered in deciding a motion to vacate a default--whether (1) the default was willful, (2) a set-aside would prejudice the plaintiff, and (3) the alleged defense is meritorious--weighs in plaintiff's favor. Acree v. Republic of Iraq, 658 F.Supp.2d 124, 127 (D.D.C. 2009) (citation and internal quotation marks omitted). The first factor is negated by the lack of proof of proper service upon the individual defendants. The remaining two factors are negated by the ensuing resolution of the complaint consistent with the " 'strong policy favoring the adjudication of a case on its merits,'" id. (quoting Strong--Fisher v. LaHood, 611 F.Supp.2d 49, 51 (D.D.C. 2009) (other citation omitted), namely, that DOJ's decision whether to investigate plaintiff's claims is ...