Opinion
Case No. CIV-19-127-F
03-05-2019
DAMIEN McGIRT, Plaintiff, v. TERRY PULLEY, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff Damien McGirt, a pre-trial detainee appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging a violation of the First Amendment. (ECF No. 1). United States District Judge Stephen P. Friot has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, the Court should: (1) dismiss, with prejudice, the claims against the Jackson County Law Enforcement Center; (2) dismiss, without prejudice, the official-capacity claims against Defendants Bridges and Pulley; (3) dismiss, without prejudice, the individual-capacity claim against Defendant Bridges for violation of the First Amendment; and (4) conclude that Plaintiff has stated an individual-capacity claim against Defendant Pulley, for violation of the First Amendment.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise must review each case brought by a prisoner with respect to prison conditions and each case in which a plaintiff proceeds in forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C. § 1915(e)(2). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1).
II. STANDARD OF REVIEW
The Court must accept Plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Plaintiff is proceeding pro se, his complaint must be construed liberally. See id. at 1218. The Court "review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face." Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted).
A complaint fails to state such a claim when it lacks factual allegations sufficient "to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, are not assumed to be true; legal conclusions "must be supported by factual allegations" to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
"[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." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (noting that although courts construe pro se pleadings liberally, courts "will not supply additional factual allegations to round out a plaintiff's complaint"). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of "judicial experience and common sense." Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
III. PLAINTIFF'S CLAIMS AND NAMED DEFENDANTS
Mr. McGirt alleges that officials at the Jackson County Law Enforcement Center (JCLEC) violated his First Amendment right to Freedom of Religion by denying him "a religious non pork tray" in violation of his Islamic beliefs. (ECF No. 1:6-8). Plaintiff names three Defendants responsible for the alleged violation: (1) the JCLEC, (2) JCLEC kitchen staff member Terry Pulley, and (3) JCLEC Jail Administrator Ulysses Bridges, III. (ECF No. 1:1, 4, 6, 7). Mr. McGirt sues Defendants Bridges and Pulley in their official and individual capacities. (ECF No. 1:4).
Plaintiff also alleges that the denial of a "non pork tray" constituted "cruel and unusual punishment." (ECF No. 1:7). But Mr. McGirt has not provided any factual support for this allegation and the Court should not consider a separate constitutional claim based on this conclusory statement. See Robbins v. Oklahoma, 519 F. 3d 1242, 1247 (10th Cir. 2008) (noting that under Twombly/Iqbal, the Court will not allow "complaints that are no more than labels and conclusions.") (internal citation omitted). --------
IV. CLAIM AGAINST THE JCLEC
Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82 (1984). It "provides that 'every person' who acts under color of state law to deprive another of constitutional rights 'shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'" Lawrence v. Reed, 406 F.3d 1224, 1229 (10th Cir. 2005) (quoting 42 U.S.C. § 1983) (alterations omitted).
Whether an entity is a "person" subject to suit under § 1983 is a matter of statutory interpretation. See Lippoldt v. Cole, 468 F.3d 1204, 1212 (10th Cir. 2006). Plaintiff has sued the JCLEC. (ECF No. 1:1, 6, 7). However, the Tenth Circuit Court of Appeals has stated that a county detention facility "is not a person or legally created entity capable of being sued." Aston v. Cunningham, 2000 WL 796086 at *4 n. 3 (10th Cir. 2000); see also Ketchum v. Albuquerque Police Dep't, 1992 WL 51481, at *2 (10th Cir. 1992) (holding that a municipal police department is not a suable entity because it lacks a legal identity apart from the municipality); see also Lindsey v. Thomson, 275 F. App'x. 744, 747 (10th Cir. 2007) (unpublished op.) (affirming dismissal of § 1983 claims against police departments and county sheriff's department, entities with no apparent legal existence).
Accordingly, the Court should dismiss Plaintiff's § 1983 action against Defendant JCLEC for failure to state a claim upon which relief may be granted. The dismissal should be with prejudice because the JCLEC is not a legal entity capable of being sued.
V. CLAIMS AGAINST DEFENDANTS BRIDGES AND PULLEY
With the recommendation, what remains are claims against Defendants Bridges and Pulley, in their official and individual capacities. (ECF No. 1:6-8). The Court should: (1) dismiss, without prejudice, the official-capacity claims against both Defendants; (2) dismiss, without prejudice, the individual-capacity claim against Defendant Bridges for violation of the First Amendment; and (3) conclude that Plaintiff has stated an individual-capacity claim against Defendant Pulley, for violation of Plaintiff's First Amendment rights.
A. Official Capacity Claims
A suit against a local government official in his official capacity is treated as a suit against the local government itself. See Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015) (holding that a suit against a county employee in his or her official capacity is "the equivalent of a suit against [the] County" (internal quotation marks omitted)). Thus, to succeed on the official-capacity claims against Defendants Bridges and Pulley, Plaintiff must allege that they: (1) "committed a constitutional violation" and (2) an Oklahoma County "policy or custom was the moving force behind the constitutional deprivation." Campbell v. City of Spencer, 777 F.3d 1073, 1077 (10th Cir. 2014) (internal quotation marks omitted). Mr. McGirt has not made any discernable allegations involving Jackson County's policies or customs—he only alleges that he was denied certain food in violation of his religious beliefs. (ECF No 1:6-8). Therefore, the Court should conclude that Plaintiff has failed to state an official-capacity claim for relief under 42 U.S.C. § 1983 against Defendants Bridges and Pulley, and dismiss these claims, without prejudice.
B. Individual Capacity Claims
The Court should: (1) dismiss, without prejudice, Plaintiff's individual-capacity claim against Defendant Bridges and (2) conclude that Plaintiff has stated an individual-capacity claim against Defendant Pulley for violation of the First Amendment.
1. Defendant Bridges
Mr. McGirt alleges liability against Defendant Bridges, as Jail Administrator of the JCLEC, for "allowing kitchen staff" to deny Plaintiff a "non pork" food tray in violation of his religious beliefs. See ECF No. 1:7. Because Plaintiff is clearly seeking liability against Defendant Bridges in a supervisory role, Mr. McGirt must allege that Defendant Bridges: (1) promulgated, created, implemented, or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm and (3) acted with the state of mind required to establish the alleged constitutional deprivation. Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). In addition, to state a claim against a defendant for liability in a supervisory capacity, the plaintiff must also identify the specific policies over which the defendants possessed responsibility that led to the alleged constitutional deprivation. Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013).
Here, Plaintiff has failed to allege that Defendant Bridges had promulgated a specific policy which caused the alleged constitutional deprivation. See ECF No. 1. Thus, the Court should dismiss Mr. McGirt's individual-capacity claim against Defendant Bridges. The dismissal should be without prejudice.
2. Defendant Pulley
Plaintiff has alleged that Defendant Pulley violated Plaintiff's First Amendment right to Freedom of Religion by denying Mr. McGirt a non-pork religious tray and failing to replace the food Plaintiff refused because it was pork, which he was prohibited from eating due to his Islamic beliefs. (ECF No. 1:7-8). Under Tenth Circuit law, a prisoner has a First Amendment right to a diet conforming to his sincerely-held religious beliefs. Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002). Accordingly, and based on Plaintiff's allegations, the Court should conclude that Plaintiff has stated an individual-capacity claim against Defendant Pulley for a violation of the First Amendment.
VI. RECOMMENDATION
Upon preliminary review of Plaintiff's claims, the Court should: (1) dismiss, with prejudice, the claims against the JCLEC; (2) dismiss, without prejudice, the official-capacity claims against Defendants Bridges and Pulley; (3) dismiss, without prejudice, the individual-capacity claim against Defendant Bridges for violation of the First Amendment; and (4) conclude that Plaintiff has stated an individual-capacity claim against Defendant Pulley, for violation of the First Amendment.
VII. NOTICE OF RIGHT TO OBJECT
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by March 22, 2019. See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF THE REFERRAL
This Report and Recommendation does not terminate the referral.
ENTERED on March 5, 2019.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE