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Patel v. Bureau of Prisons

United States District Court, D. Columbia.

August 21, 2015

KAMAL PATEL, Plaintiff,
BUREAU OF PRISONS, et al., Defendants

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[Copyrighted Material Omitted]

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          For KAMAL K. PATEL, Plaintiff: Christopher Ryan Hart, Mary Beth Hickcox-Howard, LEAD ATTORNEYS, Frank Gregory Bowman, Thomas Goodman Hentoff, WILLIAMS & CONNOLLY LLP, Washington, DC.

         For 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, Washington, DC.

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         RANDOLPH D. MOSS, United States District Judge.

         This 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.

         I. BACKGROUND

         Plaintiff, 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 ¶ ¶ 53-69.

         Plaintiffs 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.

         Although 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.


         On a 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

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(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 omitted).

         If a 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).

         The 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).


         A. Equal Protection

         Plaintiff 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 represent him.

         Because 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

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claim against him and raise any appropriate arguments in support of that motion.

         B. RFRA

         Plaintiff's 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.

         Defendants 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.

         1. Individual-Capacity Damages Claims Against Federal Officials

         The 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).

         Defendants 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.

         There 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.

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          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]."

         The 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.

         The 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 private

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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).

         Second, 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" ).

         Defendants 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 does

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not support damage claims against state officials in their individual capacity" ).

         The 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, Congress ...

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