Opinion
CIV-24-136-JD
06-28-2024
TIMOTHY WILLIAM SPARKS, Plaintiff, v. OFFICER GULICKSON, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Timothy William Sparks, a federal prisoner appearing pro se and in forma pauperis (without prepayment of fees), brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and other federal statutes. (Doc. 6, at 3).United States District Judge Jodi W. Dishman referred the matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). The undersigned has reviewed the Amended Complaint (Doc. 6) pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). As explained fully below, it is recommended that the Court DISMISS Plaintiff's claims without prejudice to the re-filing.
Citations to page numbers refer to this Court's CM/ECF pagination. Except for changes in capitalization, quotations are verbatim unless indicated.
I. The Court's Duty To Screen Prisoner Complaints
Federal law mandates the screening of each complaint in a civil action filed by a prisoner seeking redress from a governmental entity or an officer or employee of a governmental entity and each case in which the plaintiff proceeds in forma pauperis. 28 U.S.C. §§ 1915A(a), 1915(e)(2). The court must dismiss a complaint or any portion of it 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. Id.
The court's review of a complaint under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii) mirrors that required for reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. 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). 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) (internal quotation marks 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). “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. The court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Overview of Complaint
Plaintiff is a federal inmate currently confined at the Federal Correctional Institution (“FCI”) in El Reno, Oklahoma. (Doc. 6, at 5); see also BOP Register No. 23205-045, https://www.bop.gov/inmateloc/ (last visited June 27, 2024). In his Amended Complaint, Plaintiff alleges three claims against ten defendants employed by FCI, in both their individual and official capacities: Defendant Gulickson, officer and counselor for A-Unit; Defendant Goldey, FCI warden; Defendant Bouche, FCI captain; Defendant Kalahan, FCI officer; Defendant Treadway, FCI officer; Defendant Atkinson, FCI officer; Defendant Rother, A-Unit manager; Defendant Reichert, FCI officer; Defendant Boama, FCI chaplain; and Defendant Hollis, A-Unit case manager, (collectively, the “Federal Defendants”). (Doc. 6, at 5-7).
A. Claim One - RFRA
In Claim One, Plaintiff argues that against Defendants Gulickson, Kalahan, Boama, and Treadway participated in religious discrimination in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1 (2000), regarding Plaintiff's Jewish faith. (Id. at 9-10; see Ex. 1, at 1-4). For relief, Plaintiff requests “$1,000 a day per individual,” for “this abusive behavior to stop,” and “to be placed in an institution away from these vindictive and retaliatory actions.” (Id. at 10).
B. Claim Two - Bivens
Plaintiff brings Claim Two pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his First and Eighth Amendment rights. (Id. at 10). Plaintiff brings Claim Two against Defendants Gulickson, Goldey, Bouche, Kalahan, Rother, Treadway, Reichert, Atkinson, and Hollis. (Id. at 10; id. at Ex. 2, at 1). For relief, Plaintiff requests “$1,000 a day per defendant,” for “this abusive behavior to stop,” and “to be placed in an institution where [he] [doesn't] have to be concerned about harm or death from staff.” (Id. at 11).
B. Claim Three - FTCA
In Claim Three, Plaintiff alleges that his rights were violated pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, “for battery and negligent supervision.” (Id. at Ex. 3, at 9). Plaintiff brings Claim Three against Defendants Gulickson, Goldey, Bouche, Kalahan, Rother, Treadway, Reichert, Atkinson, and Hollis. (Id. at Ex. 3, at 9; Ex. 4, at 1-2). For relief, Plaintiff requests “$1,000 a day for the duration of these violations,” for the removal of Defendants Gulickson, Goldey, and Bouche from their positions, and “to be removed from [FCI El Reno] . . . and placed in an institution where [he] can finish out [his] commitment to the Government.” (Id. at Ex. 4, at 2).
III. Analysis
A. Claim Two - Bivens
1. Bivens Claims Are For Money Damages Against a Federal Actor In His Individual Capacity; Therefore, Plaintiff's Official Capacity Claims and Requests for Injunctive Relief on Claim Two Must Be Dismissed.
Plaintiff's Claim Two seeks both monetary and injunctive relief against nine of the Federal Defendants in both their individual and official capacities. (Doc. 6, at 5-7, 11). However, Bivens claims are solely for money damages against a federal actor in his individual capacity. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005); see also Solida v. McKelvey, 820 F.3d 1090, 1093 (9th Cir. 2016) (“[W]e join our sister circuits in holding that relief under Bivens does not encompass injunctive and declaratory relief where, as here, the equitable relief sought requires official government action.”); Higazy v. Templeton, 505 F.3d 161, 169 (2nd Cir. 2007) (“The only remedy available in a Bivens action is an award for monetary damages from defendants in their individual capacities.”). Plaintiff's official capacity claims against nine of the Federal Defendants on Claim Two and his request for injunctive relief on Claim Two must therefore be dismissed. See Folsom v. Whitten, No. CIV-21-783-D, 2021 WL 6055587, at *2 (W.D. Okla. Oct. 7, 2021), report and recommendation adopted, 2021 WL 5585738 (W.D. Okla. Nov. 30, 2021).
2. There is No Bivens Action for First Amendment Retaliation.
Plaintiff brings his Bivens claim in part alleging violations of his First Amendment rights. (Doc. 6, at 10). In support of his Bivens claim, Plaintiff provides a long narrative statement of facts, (id. at Ex. 3, at 1-9), which the undersigned will broadly construe as a First Amendment claim for retaliation based on Plaintiff's religious beliefs and/or attempts to grieve his treatment at FCI. (Id. at 11) (seeking “to be free from retaliatory and vindictiveness by staff”); (id. at Ex. 3, at 7) (alleging he was “still being held in the SHU, for no other reason but vindictive and retaliatory actions of this El Reno Staff against [him] . . . to punish [him] for ‘trying' to correct the wrongs that have been perpetrated against [him]”); (id., at Ex. 3, at 5, 9) (noting instances where Federal Defendants referred to Plaintiff as a “Jew bastard” or “hardcore Jew”).
“In Bivens - proceeding on the theory that a right suggests a remedy - this Court ‘recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.' [However, b]ecause implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability ‘to any new context or new category of defendants.'” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 68 (2001)). Since Bivens, which allowed an action for damages for a Fourth Amendment violation, the Supreme Court has recognized a Bivens remedy in only two types of cases: Fifth Amendment violations of the equal protection component of the Due Process Clause, Davis v. Passman, 442 U.S. 228 (1979), and Eighth Amendment violations of the Cruel and Unusual Punishment Clause, Carlson v. Green, 446 U.S. 14 (1980). See also Malesko, 534 U.S. at 68 (“Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants.”); Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (“[E]xpanding the Bivens remedy is now a ‘disfavored' judicial activity,” and the Supreme Court “has ‘consistently refused to extend Bivens to any new context or new category of defendants.'”) (quoting Malesko, 534 U.S. at 68).
The Supreme Court recently noted that it “h[as] never held that Bivens extends to First Amendment claims.” Egbert v. Boule, 596 U.S. 482, 498 (2022) (quoting Reichle v. Howards, 566 U.S. 658, 663, n. 4 (2012)). And in that same case, the Court explicitly “h[eld] that there is no Bivens action for First Amendment retaliation.” Id. at 499. For this reason, Plaintiff's First Amendment Bivens claim should be dismissed.
3. Plaintiff Has Failed To State A Bivens Claim Under The Eighth Amendment.
In addition, Plaintiff brings his Bivens claim alleging violations of his Eighth Amendment rights. (Doc. 6, at 10). Returning to Plaintiff's narrative, he has included nine pages of facts purportedly in support of his Eighth Amendment claim(s). (See Doc. 6, at Ex. 3, at 1-9). Liberally construing his Amended Complaint, Plaintiff has included the following allegations, against the Defendants and/or relevant to his Eighth Amendment rights:
• Incident One: On January 11, 2023, Defendants Rother, Atkinson, and Reichert “came to [his] cell door, snatched the door open, and started screaming at [him and his cellmate]” accusing them of being responsible for the compound being on lockdown, “trying to get the other inmates [to] hate [him and his cellmate] and potentially try to do something to [them] later,” and took Plaintiff to a medical assessment, which he passed. (Doc. 6, at Ex. 3, at 2). “Approximately 1 hour later these same Officers” returned and “came in the cell and roughed [him] up, snatching
[him] around,” and “placed [him] in handcuffs, and they put [his] on so tight [he] couldn't feel his hands when [he] got to medical and [his] wrist [was] bruised the next day.” (Id. at Ex. 3, at 2-3).
• Incident Two: On January 20, 2023, Defendant Gulickson came to Plaintiff's cell to remove him for a shower. (Id. at Ex. 3, at 4). During an argument between Plaintiff and Defendant Gulickson, Plaintiff “put [his] hands through the slot in the door, to have [his] handcuffs removed,” and Defendant Gulickson “bent [his] left wrist so hard [Plaintiff] thought he broke it.” (Id. at Ex. 3, at 4). Following his shower, Defendants Gulickson, Kalahan, and Treadway, together with two non-defendants, “came back to the shower to remove [him] and take [him] back to [his] cell.” (Id. at Ex. 3, at 4). Officer Gulickson “grabbed [Plaintiff's] hands and put the handcuffs on extremely tight.” (Id.) Defendant Gulickson and Kalahan verbally insulted Plaintiff and Defendant Treadway laughed. (Id.)
• Incident Three: Plaintiff was “housed in the SHU for over a month” between January and February of 2023 “and forced to wear the same dirty jumpsuit without being wash[ed], and only ‘finally' given a replacement jumpsuit a few days past.” (Id. at Ex. 3, at 8). Further, Plaintiff “went two weeks without a toothbrush or toothpaste,” “had to deal with no soap for the shower for over a week,” and “had no sanitizer to clean [his] room[] for over a week, being forced to live in conditions that are worse than some third world countr[ies].” (Id.)
• Incident Four: “While on the yard, and over the past several months, [Defendant] Goldey and [Defendant] Bouche have been inciting the inmate population to beat up inmates that smoke K-2, in an effort to ‘clean up' the yard.” (Id. at Ex. 3, at 8).
• Incident Five: Plaintiff's cellmates informed him that, prior to moving into their cell, Defendant Gulickson told them that Plaintiff “is nothing but an old drug addict, that thinks he's a hardcore Jew, but he isn't ever going home,” and Plaintiff “[took] this as a personal threat on [his] life.” (Id. at Ex. 3, at 9).
Setting aside the question of whether Bivens recognizes these particular Eighth Amendment claims,Plaintiff has failed to state a ground for relief under the Eighth Amendment in any part of his narrative statement because Plaintiff has failed to provide sufficient facts to state a claim for relief that is plausible on its face. Twombly, 550 U.S. at 555; Young, 554 F.3d at 1256.
“[A]lmost any difference between the case at hand and the three [ Bivens ] precedents can justify rejecting a cause of action.” Mohamed v. Jones, 100 F.4th 1214, 1220 (10th Cir. 2024) (quoting Logsdon v. U.S. Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024)). Although the Supreme Court previously recognized an Eighth Amendment violation of the Cruel and Unusual Punishment Clause under Bivens, that case involved “a claim against prison officials for failure to treat an inmate's asthma [resulting in his death].” Ziglar, 582 U.S. at 140. Plaintiff has alleged no similar claim here. Notably, the Tenth Circuit “recently declined to extend Bivens to an Eighth Amendment excessive force claim in Silva [v. United States, 45 F.4th 1134 (10th Cir. 2022)], and to a Fourth Amendment excessive force claim against Deputy U.S. Marshals in Logsdon [v. U.S. Marshal Serv., 91 F.4th 1352 (10th Cir. 2024)].” Mohammed, 100 F.4d at 1220. In Silva, the Tenth Circuit found the Bivens remedy was foreclosed because “the Government already has provided alternative remedies that protect plaintiffs;” namely, the BOP Administrative Remedies Program. Silva, 45 F.4th at 1141 (quoting Egbert, 596 U.S. at 494). And although Plaintiff complains of issues with the FCI grievance process, (see Doc. 6, at Ex. 4, at 3), he does not argue that a grievance process is unavailable, nor does he argue that he exhausted that process.
Plaintiff's nine-page narrative lacks facts specifically describing many of the alleged violations of his rights, including what each individual allegedly did or what harm Plaintiff allegedly suffered as a result. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated”). For example, Plaintiff's allegations about Defendants Goldey and Bouche in Incident Four appear to be of general concern and do not appear to have injured Plaintiff specifically. See Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018) (inmate failed to state an Eighth Amendment failure-to-protect claim where “there is no allegation that he suffered any injuries from th[e] placement”). And, in Incident One, Plaintiff does not describe which of three Defendants “roughed him up” or tightly handcuffed him. Likewise, in Incident Three, Plaintiff does not include reference to any named Defendant.
In a case such as this one, where Plaintiff has brought claims against multiple defendants, “it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original). Plaintiff has failed to do so, and the Court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Even where Plaintiff has supplied sufficient facts to ascertain his claims, his allegations still fall short of an Eighth Amendment violation. The constitution through the Eighth Amendment prohibits “cruel and unusual punishments,” and accordingly “places restraints on prison officials, who may not . . . use excessive physical force against prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994); see U.S. Const. amend. VIII. In determining whether a prison official is liable for excessive force in violation of the Eighth Amendment, a two-prong standard applies: “(1) an objective prong that asks ‘if the alleged wrongdoing was objectively “harmful enough” to establish a constitutional violation,' and (2) a subjective prong under which the plaintiff must show that ‘the officials acted with a sufficiently culpable state of mind.'” Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999) (alteration omitted) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). When “prison officials stand accused of using excessive physical force,” the court asks “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7 (citing Whitley v. Albers, 475 U.S. 312, 320-22 (1986)); see also DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001). “In making this determination,” the court “balance[s] the need for application of force with the amount of force used.” Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996). “This standard applies regardless of whether the corrections officers are quelling a prison disturbance or merely trying to maintain order.” Id. (internal quotation marks omitted).
“In some circumstances, unduly tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored a plaintiff's timely complaints (or was otherwise made aware) that the handcuffs were too tight.” Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007). “[I]n handcuffing cases, a plaintiff must establish some non-de minimis actual injury.” Fisher v. City of Las Cruces, 584 F.3d 888, 898 (10th Cir. 2009). In Incidents One and Two, Plaintiff describes two times he was roughly handcuffed (or roughly had handcuffs removed), but he neither alleges more than a de minimis injury (i.e. bruising) nor that the Defendants were aware of his discomfort at the time. This does not suffice to state an Eighth Amendment claim.
Likewise, in Incidents Two and Five, Plaintiff complains about verbal harassment and threats by Defendants Gulickson and Kalahan, and that Defendant Treadwell “laughed” at these insults. No matter how inappropriate, verbal harassment and threats do not state an arguable constitutional claim. See McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) (“[A]cts or omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do not violate the Eighth Amendment.”); Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (“[N]ecessarily excluded from the cruel and unusual punishment inquiry” are “verbal threats and harassment”). “[V]erbal sexual harassment,” without a physical component, does not constitute a cognizable claim for relief under the Eighth Amendment. Adkins v. Rodriguez, 59 F.3d 1034, 1036-37 (10th Cir. 1995); see also Mora v. Bernalillo Cnty. Metro. Det. Ctr., 2017 WL 2271434, at *4 (D.N.M. Feb. 23, 2017) (“[I]t is unlikely that such verbal harassment, on its own, would rise to the level of an Eighth Amendment violation”) (collecting cases).
For each of these reasons, Plaintiff's Claim Two should be dismissed in its entirety.
B. Claim Three - FTCA.
1. The Federal Defendants Are Not Proper Defendants and Should Be Dismissed.
In Claim Three, Plaintiff seeks monetary and injunctive relief from nine of the Federal Defendants pursuant to the FTCA “for battery and negligent supervision.” (Doc. 6, at Ex. 3, at 9). In support of Claim Three, Plaintiff “refer[s] to the whole statement in Claim [Two].” (Id. at Ex. 4, at 1).
The United States is immune from tort suits, except to the extent it waives that immunity. Union Pacific R.R. Co. v. United States ex rel. U.S. Army Corps of Eng'rs, 591 F.3d 1311, 1313 (10th Cir. 2010). One such waiver is the FTCA, which provides the exclusive remedy for damages for injury, death, or loss of property “resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]” 28 U.S.C. § 2679(b)(1). Accordingly, a plaintiff seeking relief under the FTCA files his tort claims directly against the United States, rather than the individual government actor. See Carlson, 446 U.S. at 19-23 (distinguishing between an FTCA action and a Bivens suit).
Thus, an FTCA claim can only be brought against the United States. Smith v. United States, 561 F.3d 1090, 1093 (10th Cir. 2009). Accordingly, the Federal Defendants are not proper defendants and Plaintiff's Claim Three against them should be dismissed with prejudice. See Hormizi v. United States, No. CIV-22-717-SLP, 2022 WL 19004885, at *5 (W.D. Okla. Oct. 14, 2022), report and recommendation adopted, 2023 WL 2160852 (W.D. Okla. Feb. 22, 2023); Clarke v. Fed. Transfer Ctr., No. CIV-12-1094-R, 2012 WL 7110308, at *2 (W.D. Okla. Dec. 28, 2012), report and recommendation adopted, 2013 WL 550510 (W.D. Okla. Feb. 12, 2013).
C. Claim One - RFRA
1. Plaintiff's RFRA Claims For Monetary Damages Against The Federal Defendants In Their Official Capacities Must Be Dismissed.
Plaintiff's RFRA claims for monetary damages against four of the Federal Defendants in their official capacities must be dismissed on grounds of sovereign immunity. Although RFRA is “applicable to federal officials,” the United States Government has not unequivocally waived its sovereign immunity for monetary damages awards under RFRA. Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). “Because Congress did not unequivocally waive its sovereign immunity in passing RFRA, the Act does not therefore authorize suits for money damages against federal officers in their official capacities.” Chichakli v. Samuels, No. CIV-15-687-D, 2016 WL 2743542, at *3 (W.D. Okla. May 11, 2016) (internal quotation marks and citation omitted). Accordingly, Plaintiff's Claim One for monetary damages against four of the Federal Defendants in their official capacities must be dismissed.
2. Plaintiff Has Failed To State A Claim Under RFRA.
Moreover, Plaintiff has not stated a claim against these four Federal Defendants in their individual capacities. In support of Claim One, Plaintiff provides another long narrative that includes the following facts relevant to Plaintiff's religious faith:
• Defendant Boama “told [Plaintiff] [he] thought [he] was some kind of hardcore Jew,” “badger[ed] [him],” and “[gave] [him] a hard time about [his] Jewish faith on several other occasions over the past year, even one time while [Plaintiff] was in the SHU around November 2023, [Defendant Boama] stopped by [his] cell smiling and shaking his head stating ‘that's right where a hardcore Jew belongs,' then he laughed and walked away.” (Doc. 6, at Ex. 1, at 1-2).
• During a confrontation on January 20, 2024, Defendant Gulickson verbally harassed Plaintiff and his cellmate. (Id., at Ex. 1, at 2-4). During this incident, Defendant “Kalahan said ‘Jew Bastards aint got no rights!'” (Id., at Ex. 1, at 3). Defendants Gulickson and Treadway “started laughing” and Defendant Gulickson referred to Plaintiff and his cellmate as “hardcore Jews.” (Id., at Ex. 1, at 3-4).
RFRA states that government officials “shall not substantially burden a person's exercise of religion.” 42 U.S.C. § 2000bb-1(a) (2002). The Tenth Circuit “ha[s] previously held that ‘a plaintiff establishes a prima facie claim pursuant to RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion.'” Crocker v. Durkin, 53, Fed. App'x 503, 505 (10th Cir. 2022) (quoting Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001)). “Once a plaintiff has met his prima facie burden, the government must show that the imposition is in furtherance of a compelling governmental interest.” Id. (internal quotations and citation omitted). The Tenth Circuit “ha[s] recognized, in the prison context, that the maintenance of safety and order is a compelling governmental interest.” Id.
Plaintiff's Amended Complaint “does not allege facts against any individual defendant sufficient to plausibly demonstrate deliberate and personal participation in a substantial burden on Plaintiff's sincere exercise of religion.” Williams v. Valazair, No. CIV-14-456-M, 2015 WL 9315537, at *7-8 (W.D. Okla. Nov. 9, 2015), report and recommendation adopted, 2015 WL 9413888 (W.D. Okla. Dec. 22, 2015); see also Ajaj v. Federal Bureau of Prisons, 2011 WL 902440 at *3 (D Colo. March 10, 2011) (“For purposes of Mr. Ajaj's pleading burdens, Bivens claims under the Free Exercise clause, claims under RLUIPA, and claims under the RFRA all impose the same requirements: Mr. Ajaj must allege facts showing that a particular action by a particular Defendant substantially burdened his sincerely-held religious beliefs.”) (emphasis added; citations and internal quotation marks omitted); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013) (addressing substantial burden under RFRA) (citing Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315-16 (10th Cir. 2010). Plaintiff's allegations, which include insults related to Plaintiff's religion, do not involve any allegations regarding Plaintiff's ability or inability to practice his religion. For this reason, his RFRA claims must fail.
IV. Plaintiff's Letters
The Court is in receipt of various correspondence from Plaintiff. (See Docs. 5, 9, 14, 16, 17, 18, 19, 20, 21). Though a court will “construe [Plaintiff's] pleadings liberally because he is a pro se litigant, he nevertheless must follow the same rules of procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Accordingly, the Court does not consider and summarily strikes any letter, notice, or other filing that is not consistent with the motion practice established by the Federal Rules of Civil Procedure or this Court's Local Civil Rules. Plaintiff's letters (Docs. 5, 9, 14, 16, 17, 18, 19, 20, 21) are therefore ordered stricken from the record.
V. Recommendation and Notice of Right to Object.
In accordance with the forgoing analysis, the undersigned recommends that the Court DISMISS Plaintiff's Amended Complaint (Doc. 6).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before July 19, 2024, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.