Opinion
C. A. 20-3387-JMC-PJG
06-04-2021
Jeremy Spencer, Plaintiff, v. D. Crickard; M. Potts; J. Owens, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jeremy Spencer, a self-represented federal prisoner, filed this civil rights action against three employees of the federal Bureau of Prisons. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' motion to dismiss Plaintiff's claims pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 28.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motion. (ECF No. 29.) Plaintiff did not file a response to the defendants' motion and the court directed Plaintiff to advise the court as to whether he wished to continue with this case and file a response to the defendants' motion. (ECF No. 39.) Plaintiff filed a letter asking the court not to dismiss the case; however, the letter offered no substantive opposition to the defendants' motion. (ECF No. 41.) Having reviewed the record presented and the applicable law, the court finds that the defendants' motion should be granted.
BACKGROUND
The following allegations are taken as true for purposes of resolving the defendants' motion to dismiss. Plaintiff was formerly incarcerated at the Federal Correctional Institution Estill (“FCI Estill”) of the Federal Bureau of Prisons. In May 2019, Plaintiff was fasting during Ramadan. Associate Warden of FCI Estill, David Crickard, authorized funds for the purchase of beef and pork sausages. FCI Estill food administrator M. Potts purchased the sausages to feed to Plaintiff to “break” Plaintiff's fasting. (Compl., ECF No. 1 at 5-6, 8.) FCI Estill officer J. Owens called the kitchen on Plaintiff's behalf to ask whether the sausages were 100% beef because Plaintiff's religious beliefs forbid eating pork. Potts lied to Owens, telling him that the sausages were 100% beef, which Owens relayed to Plaintiff. However, the sausages actually contained pork. Plaintiff ate the sausages that contained pork, causing Plaintiff to have an upset stomach for three days. Plaintiff was not provided medical attention for his upset stomach.
Plaintiff filed this action in September 2020 against Crickard, Owens, and Potts, claiming that they violated Plaintiff's First and Fourteenth Amendment rights by feeding him pork sausages in violation of Plaintiff's religious beliefs. Plaintiff seeks damages pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). By order dated February 1, 2021, the court authorized service of process and construed the Complaint as purporting to assert claims for damages pursuant to Bivens and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb et seq. for violations of the First and Fourteenth Amendments. (ECF No. 19.) No. party challenged the court's construction of Plaintiff's Complaint. (See ECF No. 30) (“If any party disagrees with the court's construction of the Plaintiff's claims, he or she may file an appropriate motion with the court within seven (7) days from the date of this order.”).
DISCUSSION
A. Applicable Standard
Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. The Defendants' Motion
The defendants argue that they are immune from suit for Plaintiff's Bivens claims for damages against them in their official capacities. The defendants also argue that Plaintiff fails to state a Bivens claim upon which relief can be granted against them in their individual capacities.
As stated above, Plaintiff failed to substantively respond to the defendants' arguments. Therefore, Plaintiff has arguably abandoned his Bivens claims. See Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 783 (D. Md. 2010) (stating that a party who fails to address arguments in opposition to a motion to dismiss abandons their claim); see also Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Sawyers v. United Parcel Serv., Inc., C/A No. 1:18CV1037, 2019 WL 4305771, at *3 (M.D. N.C. Sept. 11, 2019) (collecting cases showing that “[t]his district and others within the Fourth Circuit agree that failing to respond to an argument constitutes an abandonment of a claim”). However, in light of Plaintiff's pro se status and his stated desire that his claims not be dismissed, the court will briefly address the merits of the defendants' arguments.
As the defendants argue in their motion to dismiss (ECF No. 28 at 4-6), sovereign immunity bars Plaintiff's Bivens claims for damages against them in the official capacities because such a suit is actually against the United States. See Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (“Any remedy under Bivens is against federal officials individually, not the federal government.”). Therefore, the court lacks subject matter jurisdiction over Plaintiff's Bivens claims against the defendants in their official capacities.
The defendants do not address whether sovereign immunity would also bar a damages claim under RFRA. See Tanzin v. Tanvir, 141 S.Ct. 486, 492-93 (2020) (suggesting the Court's decision in Sossamon v. Texas, 563 U.S. 277 (2011), dictates that similar language in the Religious Land Use and Institutionalized Persons Act of 2000 did not effect a waiver of sovereign immunity from the States). The court declines to address this issue without argument from the parties. See Buck v. United States Dep't of Just., No. 5:19-CT-3100-FL, 2021 WL 1009294, at *4 (E.D. N.C. Mar. 16, 2021) (declining to sua sponte address whether RFRA abrogated the United States' sovereign immunity in the absence of argument by the defendant in a motion to dismiss).
Also, as the defendants argue in their motion to dismiss (ECF No. 28 at 9-14), Plaintiff fails to state a Bivens claim upon which relief can be granted against the defendants in their individual capacities. As to Plaintiff's First Amendment Claim, no court has found that a Bivens remedy extends to a Free Exercise Claim. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (casting doubt that a Bivens remedy would be extended to claims of religious discrimination in prison); Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016) (declining to extend Bivens to free exercise claims in prison); Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 n.6 (8th Cir. 2008) (“We have never found a Bivens action to extend to a Free Exercise claim, and it is doubtful that we would do so.”). And following the United States Supreme Court's decision in Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017), which limited the scope and availability of Bivens actions, courts continue to find that Bivens does not extend to Free Exercise claims in prison. See, e.g., Powers v. Mosley, No. 2:18-cv-02227-HMH-MGB, 2019 WL 2619908, at *7 (D.S.C. Apr. 2, 2019) (declining to extend Bivens to a prisoner's claim that his rights under the Free Exercise Clause were violated), report and recommendation adopted sub nom. Powers v. United States, 2019 WL 2223385 (D.S.C. May 23, 2019); accord Butts v. Martinez, Civil Action No. 1:12CV114, 2021 WL 1085310, at *4 (E.D. Tex. Mar. 8, 2021), report and recommendation adopted, No. 1:12CV114, 2021 WL 1061184 (E.D. Tex. Mar. 18, 2021); Azzarmi v. Donnelly, C/A No. 21-CV-12 (WFK) (LB), 2021 WL 405491, at *3 (E.D.N.Y. Jan. 20, 2021), appeal filed No. 21-803 (2d Cir. Mar. 29, 2021); Banks v. Cuevas, Case No. 4:17CV2529, 2018 WL 2717269, at *2 (N.D. Ohio June 6, 2018); Twum-Baah v. United States Dep't of Agric., 299 F.Supp.3d 369, 377 (D.P.R. 2018); Crowder v. Jones, Case No. 2:14-CV-00202-JMS-MJD, 2017 WL 5889717, at *3 (S.D. Ind. Nov. 29, 2017).
As to Plaintiff's Fourteenth Amendment claim, the defendants correctly point out that Plaintiff fails to articulate a specific cause of action, but liberally construing Plaintiff's Complaint as asserting a violation of the Fifth Amendment's Due Process Clause, courts, including this one, have also found that Bivens does not extend to such a claim post-Ziglar. See, e.g., Muhammad v. Ramirez, C/A No. 0:17-2639-TMC-PJG, 2019 WL 7882144, at *6 (D.S.C. Sept. 30, 2019) (declining to extend Bivens to a religious discrimination claim in prison under the Fifth Amendment), report and recommendation adopted, 2020 WL 241004 (D.S.C. Jan. 16, 2020), appeal dismissed, No. 20-6720, 2020 WL 6738026 (4th Cir. Oct. 23, 2020); accord Ajaj v. United States, Civil Action No. 15-cv-02849-RM-KLM, 2020 WL 747013, at *12 (D. Colo. Feb. 13, 2020), report and recommendation adopted in relevant part, 2020 WL 5758521 (D. Colo. Sept. 28, 2020); Driever v. United States, Civil Action No. 19-1807 (TJK), 2020 WL 6135036, at *8 (D.D.C. Oct. 19, 2020); Pauley on behalf of Asatru/Odinist Faith Cmty. v. Samuels, Case No. 1:15-cv-158 Erie, 2019 WL 4600195, at *10 (W.D. Pa. Sept. 23, 2019). Therefore, as argued by the defendants, Plaintiff fails to state a Bivens claim upon which relief can be granted.
The Fourteenth Amendment does not apply to the federal government, but the Fifth Amendment includes a Due Process Clause that forbids “discrimination that is so unjustifiable as to be violative of due process.” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motion to dismiss Plaintiffs Bivens claims be granted. (ECF No. 28.)
If this recommendation is adopted, the only remaining claims in this case will be Plaintiff's claims pursuant to RFRA, which are not the subject of the instant motion to dismiss.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).