United States District Court, D. Columbia.
[Copyrighted Material Omitted]
KAMAL K. PATEL, Plaintiff: Christopher Ryan Hart, Mary Beth
Hickcox-Howard, LEAD ATTORNEYS, Frank Gregory Bowman, Thomas
Goodman Hentoff, WILLIAMS & CONNOLLY LLP, Washington, DC.
BUREAU OF PRISONS, HARLEY G. LAPPIN, Director - Individual
and Official Capacity, CORY CLARK, in official and individual
capacities, JOHN DOES, 1-3, in official and individual
capacities, Defendants: Wynne Patrick Kelly, LEAD ATTORNEY,
U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA,
D. MOSS, United States District Judge.
matter is before the Court on Defendants' Motion to
Dismiss or, in the Alternative, for Summary Judgment (Dkt.
68). For the reasons stated herein, the motion is GRANTED in
part and DENIED in part. An appropriate order accompanies
this Memorandum Opinion.
Kemal Patel, filed this lawsuit pro se in 2009.
See Dkt. 1. Patel is a citizen of the United
Kingdom; when he filed suit, he was a legal permanent
resident of the United States and was incarcerated in a
facility run by Defendant Bureau of Prisons (" BOP"
). Id. ¶ 4. The original complaint alleged that
Patel was subjected to unfair treatment while incarcerated
based on his status as a noncitizen--specifically, he alleged
that BOP denied noncitizen inmates the same transfer and
prison programming opportunities provided to U.S. citizens.
Id. ¶ ¶ 15-38. An amended complaint, filed
on June 8, 2009, added Dale Brown as an additional plaintiff
and new claims under the Freedom of Information Act ("
FOIA" ). Plaintiffs filed a Second Amended Complaint on
September 1, 2009, which added allegations that BOP had
wrongfully assigned noncitizen inmates to private prisons
where they were subjected to " significantly more
onerous conditions of confinement." Dkt. 13 ¶
obtained pro bono counsel in 2010. See Dkt. 45. On
July 12, 2010, they filed a motion for leave to file a Third
Amended Complaint. Dkt. 65. The Third Amended Complaint
included eleven counts: challenges to the BOP's
assignment and treatment of noncitizen inmates under the
Equal Protection Clause and Administrative Procedure Act
(" APA" ); an alleged violation of the Religious
Freedom Restoration Act (" RFRA" ); an Eighth
Amendment claim relating to exposure to second-hand smoke; a
claim under the Equal Protection Clause and the APA relating
to transfers of noncitizen inmates; a claim under the Privacy
Act; and three FOIA claims.
Plaintiffs' motion for leave to amend was not granted
until September 7, 2011, Dkt. 90, the instant motion was
originally directed at the Third Amended Complaint.
See Dkt. 68 at 1. Subsequently, both Patel and Brown
were released from BOP custody. In order to clarify the scope
of the proceedings in light of their release, the Court
granted Plaintiffs leave to file a Fourth Amended Complaint
(the " Complaint" ). Dkt. 118. In the Fourth
Amended Complaint, Brown no longer appears as a plaintiff and
Patel has dropped many of his claims for injunctive relief.
The Complaint includes damages claims under the Equal
Protection Clause and RFRA (Counts I and II, respectively), a
claim for injunctive relief under the Privacy Act (Count
III), and two FOIA counts (Counts IV and V). The parties have
agreed that the arguments in the instant motion may be
applied to the Fourth Amended Complaint, provided that
Defendants will have the opportunity to file a supplemental
motion raising additional defenses particular to the Fourth
Amended Complaint in the event the case is not dismissed in
its entirety. See Dkt. 117 at 2 n.1.
motion to dismiss for failure to state a claim, the Court
must " treat the complaint's factual allegations as
true [and] must grant plaintiff the benefit of all inferences
that can be derived from the facts alleged." Gilvin
v. Fire, 259 F.3d 749, 756, 347 U.S. App.D.C. 281
(D.C. Cir. 2001). Although " detailed factual
allegations" are not necessary, Bell A. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007), " a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim for
relief that is plausible on its face.'" Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (quoting Twombly, 550 U.S. at 570). The
Court need not accept as true either a " legal
conclusion couched as a factual allegation" or an
inference drawn by the plaintiff if such inference is
unsupported by the facts set out in the complaint.
Trudeau v. FTC, 456 F.3d 178, 193, 372 U.S. App.D.C.
335 (D.C. Cir. 2006) (citations and quotation marks omitted).
The Court may consider " the facts alleged in the
complaint, documents attached as exhibits or incorporated by
reference in the complaint, and matters about which the Court
may take judicial notice." Gustave-Schmidt v.
Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002) (citation
Court concludes that it is appropriate to consider additional
evidence submitted by the parties, it must convert the motion
to dismiss into a motion for summary judgment. Fed.R.Civ.P.
12(d). Whether to convert a motion to dismiss into a summary
judgment motion is " committed to the sound discretion
of the trial court." Bowe-Connor v. Shinseki,
845 F.Supp.2d 77, 85 (D.D.C. 2012) (quotation marks omitted).
Before deciding to convert a motion to dismiss, the "
court must assure itself that summary judgment treatment
would be fair to both parties," Tele-Commc'ns of
Key West, Inc. v. United States, 757 F.2d 1330, 1334,
244 U.S. App.D.C. 335 (D.C. Cir. 1985), and that the parties
are provided the opportunity to present all relevant
materials, Fed.R.Civ.P. 12(d).
Court may grant summary judgment where the evidence submitted
by the parties shows that there is no genuine issue of
material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56; see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears
the initial burden to identify the portions of the record
that, in its view, " demonstrate the absence of a
genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). If the moving party carries that burden, the
opposing party must " designate specific facts showing
there is a genuine issue for trial." Id. at 324
(quotation marks omitted).
asserts his equal protection claim (Count I) against only
Defendant Clark in his individual capacity. Dkt 118 at 16. At
oral argument in this matter, however, the Court became aware
that Clark had not yet been served. Although counsel for the
United States has advanced several arguments for dismissal of
the equal protection claim, counsel has also expressly stated
that he lacks authorization to represent Clark. Plaintiff
filed a proof of service on Clark after oral argument (Dkt.
125); however, there is no indication in the record that
counsel for the United States has yet been authorized to
the only defendant against whom Plaintiff alleges his equal
protection claim is not represented by any attorney who has
appeared, it would be inappropriate for the Court to rule on
the merits of the equal protection claim at this time. After
an attorney for Clark notices an appearance, Clark will have
an opportunity to move to dismiss the equal protection
claim against him and raise any appropriate arguments in
support of that motion.
RFRA allegations focus on his treatment at CI Rivers and CI
Big Spring, two private prisons at which he was incarcerated
in 2009 and 2010, respectively. Dkt. 118 ¶ ¶ 90-91,
119, 121. At CI Rivers, Plaintiff, who is Muslim, alleges
that he was not permitted to pray while on work duty, and
that, as a result, he was unable to pray " at the times
required by his religious beliefs." Id. ¶
95. At CI Big Spring, Plaintiff alleges he was not provided
halal meals and was prohibited from choosing kosher meals.
Id. at 97. The alternative meals that were offered
to Plaintiff allegedly contained ingredients that "
would be inappropriate for an inmate following a halal
diet." Id. ¶ 98. Plaintiff also alleges
that, contrary to BOP policy, the company operating CI Big
Spring failed to provide menus and nutritional information to
inmates before meals. Id. ¶ ¶ 99-100.
Finally, he alleges that he was not allowed to take all of
his meals in the evening on days on which fasting was
required outside of Ramadan. Id. ¶ 101.
Plaintiff's allegations target Defendant Lappin, the
former director of BOP, as well as three John Doe defendants
who were allegedly responsible for enforcing BOP policy at CI
Big Spring. Id. ¶ ¶ 16-17.
argue that these allegations fail to state a claim for three
reasons. First, they assert that RFRA does not authorize
damages actions against federal officials in their individual
capacities. Second, they claim that Plaintiff has failed to
allege sufficient personal involvement by Defendant Lappin
for liability to attach to him. Finally, they argue that
Plaintiff's allegations are substantively insufficient to
state a claim under RFRA. The Court will consider each of
these arguments in turn.
Individual-Capacity Damages Claims Against Federal
parties disagree on the issue whether RFRA authorizes
individual-capacity damages claims against federal officials.
RFRA allows any " person whose religious exercise has
been burdened in violation of [the statute]" to "
assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a
government." 42 U.S.C. § 2000bb-1(c). A "
government" is defined to " include a branch,
department, agency, instrumentality, and official (or other
person acting under color of law) of the United States."
42 U.S.C. § 2000bb-2(1).
argue that this definition does not authorize
individual-capacity suits against government officials. They
assert that the statute's use of the word "
official" refers only to official-capacity suits, and
that the interpretive canons noscitur a sociis and
ejusdem generis show that the term " other
person acting under color of law" should be read to
authorize only official-capacity claims. Dkt. 98 at 6.
are significant flaws in Defendants' position. It is not
at all clear why a statutory term authorizing suit against
" an official" should be presumed to allow only
official-capacity suits. Courts routinely recognize that
" 'government officials may be sued in their
individual capacities'" under certain circumstances,
e.g., Oberwetter v. Hilliard, 639 F.3d 545,
554, 395 U.S. App.D.C. 52 (D.C. Cir. 2011) (citation
omitted)--indeed, " officials" are the only persons
for whom the distinction between individual-capacity and
official-capacity suits has any salience. A statutory term
authorizing suits against " officials" thus sheds
little light on whether and when plaintiffs may sue those
officials in their individual capacities.
Defendants' argument that the phrase " other person
acting under color of law" authorizes only
official-capacity suits is even less persuasive. That phrase
contemplates that persons " other" than "
officials" may be sued under RFRA, and persons who are
not officials may be sued only in their individual
capacities. Seed Jama v. INS, 343 F.Supp.2d
338, 374 (D.N.J. 2004). Defendants' interpretation would
render the entire phrase surplusage: once Congress authorized
official-capacity suits against " officials,"
adding another term that allowed only official-capacity suits
would have had no effect whatsoever. Neither of the
interpretive canons on which Defendants rely can overcome
this deficiency in their reading of the statute. Under the
canon ejusdem generis, " when a general term
follows a specific one, the general term should be understood
as a reference to subjects akin to the one with specific
enumeration." Ali v. BOP, 552 U.S. 214, 223,
128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (quotation marks
omitted). This canon is inapplicable here. The phrase "
other person acting under color of law" appears in
§ 2000bb-2 not as a final, " catch-all" item
in a list, but instead as a parenthetical modifier that
expands upon one item on the list. See 42 U.S.C.
§ 2000bb-2 (" the term 'government'
includes a branch, department, agency, instrumentality, and
official (or other person acting under color of law)
of the United States . . . ." ) (emphasis added). The
phrase " official (or other person acting under color of
law)" is thus very similar to the disjunctive phrase to
which ejusdem generis was held inapplicable in
Ali. 552 U.S. at 225 (" The structure of the
phrase 'any officer of customs or excise or any other law
enforcement officer' does not lend itself to application
of the canon." ). The phrase at issue is intended to
enlarge the category of " person[s]" subject to
suit, not to refer to miscellaneous things that are "
akin to" " branch[es], department[s], agenc[ies],
instrumentalit[ies], and official[s]."
argument under noscitur a sociis fares no better.
Under that precept, " a word may be known by the company
it keeps." Graham Cnty. Soil & Water Conserv. Dist.
v. United States ex rel. Wilson, 559 U.S. 280, 288, 130
S.Ct. 1396, 176 L.Ed.2d 225 (2010). It is " 'not an
invariable rule,'" however, " 'for the word
may have a character of its own not to be submerged by its
association.'" Id. (quoting Russell
Motor Car Co. v. United States, 261 U.S. 514, 519, 43
S.Ct. 428, 67 L.Ed. 778, 58 Ct.Cl. 708 (1923)). Here, that
the phrase " or other person acting under the color of
law" has a " character of its own" is evident
on the face of the statute. There is no apparent congruity
between a " branch, department, agency [or]
instrumentality" of the government and a "
person," and the statute expressly differentiates "
officials" from " other person[s]."
By authorizing suits against " persons" who are not
" officials," Congress thus envisioned at least
some individual-capacity suits under RFRA.
fact that Congress authorized individual-capacity suits
against " other persons acting under color of law"
at least suggests that it also intended to permit
individual-capacity suits against " officials," but
it does not conclusively resolve the issue. Congress could
have intended to permit only official-capacity suits against
officials while allowing suits against non-officials "
acting under color of law." This reading of the statute,
however, is implausible. First, there is no affirmative
evidence that Congress intended to draw such a distinction.
Given the availability of qualified immunity, it would be
anomalous if actual government officials were wholly immune
from personal liability for even clear RFRA violations while
citizens " acting under color of law" were subject
to suit--and it would certainly do nothing to further
RFRA's purpose of " provid[ing] a claim or defense
to persons whose religious exercise is substantially burdened
by government." 42 U.S.C. § 2000bb(b).
similar statutory language in at least one other context has
been interpreted to permit individual-capacity claims against
officials. 42 U.S.C. § 1983 permits suits against "
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage" of a State or territory
deprives a person of constitutional rights, and is uniformly
interpreted to permit individual-capacity claims against
government officials. See, e.g., Wesby v.
District of Columbia, 765 F.3d 13, 18, 31, 412 U.S.
App.D.C. 246 (D.C. Cir. 2014) (affirming judgment under
§ 1983 against police officers " in their
individual capacities" ). Under Defendants'
interpretation of RFRA, Congress's choice explicitly to
include " official[s]" among the persons and
entities that may be sued under the statute--a departure from
the language of § 1983--would impose an additional
limitation on plaintiffs' ability to sue
officials. This is backwards: by explicitly adding a term
permitting suits against officials to language familiar from
the § 1983 context, RFRA contemplates, if anything, that
such suits will be more available. In any event, it is safe
to assume that Congress understood that it acted against the
backdrop of settled § 1983 precedent when it added the
similar " under color of law" language to RFRA.
Cf. Lorillard v. Pons, 434 U.S. 575, 581,
98 S.Ct. 866, 55 L.Ed.2d 40 (1978) (" where . . .
Congress adopts a new law incorporating sections of a prior
law, Congress normally can be presumed to have had knowledge
of the interpretation given to the incorporated law, at least
insofar as it affects the new statute" ).
have marshalled only minimal case law supporting their
position. The two decisions from the Western District of
Pennsylvania they cite do not analyze the relevant statutory
provisions. Ellis v. United States, No. 08-160, 2011
WL 3290217, at *12 (W.D. Pa. June 17, 2011), simply follows,
without elaboration, Jean-Pierre v. BOP, No. 09-266,
2010 WL 3852338, at *6 n.4 (W.D. Pa. July 30, 2010).
Jean-Pierre, in turn, stated in a footnote without
analysis that " neither RFRA nor RLUIPA [the Religious
Land Use and Institutionalized Persons Act] support damages
claims against government officials in their individual
capacity." The cases it cites for that proposition,
moreover, uniformly involve RLUIPA, not RFRA. See
Nelson v. Miller, 570 F.3d 868, 889 (7th Cir. 2009)
(" declin[ing] to read RLUIPA as allowing damages
against defendants in their individual capacities" );
Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir.
2009) (" Congress did not signal with sufficient clarity
an intent to subject [a state official] to an individual
capacity damages claim under RLUIPA" ); Sossamon v.
Lone Star State of Texas, 560 F.3d 316, 329 (5th Cir.
2009) (" we decline to read Congress's permission to
seek 'appropriate relief against a government' as
permitting suits against RLUIPA defendants in their
individual capacities" ), aff'd sub nom.
Sossamon v. Texas, 563 U.S. 277, 131 S.Ct. 1651, 179
L.Ed.2d 700 (2011); Smith v. Allen, 502 F.3d 1255,
1275 (11th Cir. 2007) (" section 3 of RLUIPA . . .
cannot be construed as creating a private right of action
against individual defendants for monetary damages" );
Porter v. Beard, No. 09-549, 2010 WL 2573878, at *6
(W.D. Pa. May 12, 2010) (" [RLUIPA] does not support
damages claims against state officials in their individual
capacity" ); Logan v. Lockett, No. 07-1759,
2009 WL 799749, at *4 (W.D. Pa. Mar. 25, 2009) (" RLUIPA
not support damage claims against state officials in their
individual capacity" ).
distinction between RFRA and RLUIPA is essential to the
question raised here. Although RFRA by its terms authorizes
lawsuits against both the federal government and the states,
it was held unconstitutional as applied to the states in
City of Boerne v. Flores, 521 U.S. 507, 536, 117
S.Ct. 2157, 138 L.Ed.2d 624 (1997) (holding that application
of RFRA to states exceeded Congress's power under the
Enforcement Clause of the Fourteenth Amendment). In response,