Opinion
CIV-23-577-JD
04-05-2024
MORHAF HAMDO, Plaintiff, v. RIVERA, ET AL., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Morhaf Hamdo, an Oklahoma prisoner appearing pro se and in forma pauperis (without prepayment of fees), brings this action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., alleging violations of his federal constitutional rights. (Doc. 1). 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. 4).
Citations to page numbers refer to this Court's CM/ECF pagination. Except for changes in capitalization, quotations are verbatim unless indicated.
Before the court are the Motion to Dismiss filed by Defendant Mark Knutson (Doc. 16) and the Motion to Dismiss or in the Alternative, Motion for Summary Judgment filed by Defendants Javier Rivera, Paul Higgins, David C. Cole, Dean Caldwell, and GEO Group Inc. (collectively, the “LCF Defendants”) (Doc. 20). Plaintiff did not respond to either motion. For the reasons set forth below, the undersigned recommends that Defendant Knutson's Motion to Dismiss (Doc. 16) be GRANTED, the LCF Defendants' Motion to Dismiss (Doc 20) be GRANTED IN PART, the LCF Defendants' Motion for Summary Judgment (Doc. 20) be GRANTED IN PART, and that the Court GRANT judgment in favor of Defendant GEO on Plaintiff's sole exhausted claim.
I. Plaintiff's Complaint
At the time of filing his Complaint, Plaintiff was incarcerated at the Lawton Correctional Facility (“LCF”), a private prison owned and operated by Defendant GEO Group Inc. (“GEO”) pursuant to a contract with the Oklahoma Department of Corrections (“ODOC”). (Doc. 1, at 4). Plaintiff has since been discharged from that facility. See Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 872371).
In his Complaint, Plaintiff alleges two claims against six defendants: GEO; GEO/LCF employees Javier Rivera, Paul Higgins, David C. Cole, and Dean Caldwell; and ODOC employee Mark Knutson. (Doc. 1, at 4-6, 8, 26). Plaintiff alleges each claim against each Defendant in their official capacity only. (Id. at 4-6).
In Claim One, Plaintiff argues that during his incarceration at LCF, he was “depriv[ed] of food that is sufficient to sustain [him] in good health, that satisfies the religious diet of Halal and Muslim” in violation of RLUIPA and the Eighth Amendment (Doc. 1, at 8). More specifically, Plaintiff alleges that LCF “serv[ed] Halal diet meals with portion and caloric intake requirements at half of the minimum daily requirement of which general nutrition advises (2400 calories/day)” contrary to the stated policy of ODOC and GEO/LCF. (Id. at 11). Plaintiff claims “[t]he issue of missing food on a daily basis was brought to the attention of the Food Department in a face-to-face discussion with [Defendant] Rivera and [Defendant] Higgins.” (Id. at 15). Plaintiff additionally claims that he “filed this complaint via grievance procedure through [GEO/LCF] and ODOC” and that “[GEO/LCF] confess[ed] this issue of daily missed food items” in response to one grievance, but “[n]o action was taken.” (Id. at 16-17). Plaintiff also alleges that GEO/LCF failed to follow ODOC policy by failing to serve fresh whole fruits, vegetables, and salad, instead serving “canned processed” apple sauce which “leads to cancer and causes death” and “is forbidden,” and substituting his meals with vegetarian meals. (Id. at 18-19). Plaintiff claims that, as a result of this diet, he suffered hunger pains, weight loss, dizziness, aggression, tiredness, weakness, and fatigue. (Id. at 21). Plaintiff seeks a declaratory judgment and injunctive relief against Defendants Rivera, Higgins, Cole, Caldwell, and Knutson, in their official capacities. (Id. at 4-6, 8, 22-23). Plaintiff also seeks compensatory damages against Defendants Rivera, Higgins, Cole, Caldwell, and Knutson, and punitive damages against Defendants Rivera, Higgins, Cole, and Caldwell, in their official capacities. (Id. at 4-6, 24).
In Claim Two, Plaintiff argues that during his incarceration at LCF, he experienced “discrimination towards [him] as a Muslim and [Defendants] place[ed] a substantial burden on [him] with attempts to modify [his] religion,” in violation of RLUIPA, the First Amendment, and the equal protection clause of the Fourteenth Amendment. (Id. at 26, 35). More specifically, Plaintiff alleges that he was forced to follow the Jewish Sabbath and therefore served only cold meals on Saturday, which is not a requirement of the Halal diet. (Id. at 29). Plaintiff claims that he “discussed the Sabbath issue with Kitchen Supervisors [Defendant] Riveria and [Defendant] Higgins, without any positive feedback.” (Id. at 30). Plaintiff claims that this action by GEO/LCF violates ODOC policy and “forc[es] [him] to follow another religion as if [he] were Jewish” therefore “violat[ing] [his] rights to freely exercise [his] religion and plac[ing] a substantial burden on [him] to modify [his] religion.” (Id. at 30-31). Within Claim Two, Plaintiff alleges additional Eighth Amendment and RLUIPA violations, including “more than 20 different times of delay in being served breakfast, lunch and dinner” resulting in headaches, fatigue, irritated eyes, tiredness, weakness, and starving. (Id. at 34). Plaintiff claims that he exhausted the grievance process with regard to his allegations in Claim Two. (Id. at 27, Ex. 4). For relief, Plaintiff seeks a declaratory judgment, injunctive relief, compensatory damages, and punitive damages against Defendants Rivera, Higgins, Cole, and Caldwell. (Id. at 4-6, 35-37).
II. Standards of Review
A. Motion to Dismiss
“To survive a motion to dismiss, a 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). In applying this standard, the court must “accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[, and t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “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 v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 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).
B. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way” and “[a]n issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986)). If the movant carries the burden of demonstrating an absence of a dispute as to material fact, “the nonmovant must then go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence and that show a genuine issue for trial.” Martin v. City of Oklahoma City, 180 F.Supp.3d 978, 983 (W.D. Okla. 2016) (citing Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler, 144 F.3d at 671).
The court's inquiry must be whether the evidence, when viewed “through the prism of the substantive evidentiary burden,” Anderson, 477 U.S. at 254, “presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. Although the court views all facts in the light most favorable to the non-moving party at the summary judgment stage, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249 (citations omitted).
When a defendant asserts an affirmative defense, such as the failure to exhaust administrative remedies, in a motion for summary judgment, he or she “must demonstrate that no disputed material fact exists regarding the affirmative defense asserted when the evidence is viewed in the light most favorable to the plaintiff.” Kramer v. Wasatch Cnty. Sheriff's Office, 743 F.3d 726, 746 (10th Cir. 2014) (internal quotation marks and citation omitted). If the defendant satisfies this burden, the plaintiff would incur a duty to “demonstrate with specificity the existence of a disputed material fact” or “show that remedies were unavailable to [her] as a result of” the actions of prison officials. Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). In the absence of either showing, the defendant would be entitled to summary judgment on the affirmative defense. See id.
Even when a dispositive motion is unopposed, the court remains obligated to determine if the summary judgment motion is properly “supported” pursuant to Federal Rule of Civil Procedure 56(c). Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir.2002) (“[A] party's failure to file a response to a motion for summary judgment is not, by itself, a sufficient basis on which to enter judgment against the party.”). Instead, even when a party has failed to respond, the district court must make the “additional determination that judgment for the moving party is ‘appropriate' under Rule 56.” Id. at 1195. “Summary judgment is appropriate only if the moving party demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Id. In analyzing whether a material issue of fact exists, it must be remembered that, by failing to file a timely response, Plaintiff has “waive[d] the right to respond or controvert the facts asserted in the summary judgment motion,” and the “court should accept as true all material facts asserted and properly supported in the summary judgment motion.” Id.
III. Analysis
A. Plaintiff's Demands For Injunctive And Declaratory Relief Are Moot Due To His Release From LCF.
Plaintiff is no longer in the custody of LCF or ODOC as of October 22, 2023. See Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 872371). The LCF Defendants have submitted evidence that Plaintiff was subject to an immigration detainer at the time of his release and speculate that he may have been removed to his home country of Syria. (Doc. 20, at 1-2; Doc. 19, at Ex. 1). Indeed, the undersigned notes that the court's two prior orders in this matter have been returned as undeliverable, and Plaintiff has not submitted a notice of change of address to date. (See Docs. 21, 22).
The LCF Defendants (Doc. 20, at 5-8) and Defendant Knutson (Doc. 16, at 5-8) argue that Plaintiff's discharge from LCF renders his claims for injunctive and declaratory relief moot. The undersigned agrees and recommends the court GRANT Defendants' motions to dismiss these claims as moot. See Ind v. Colorado Dept. of Corr., 801 F.3d 1209, 1217 (10th Cir. 2015) (holding that RLUIPA claim was moot following prisoner's transfer from administrative segregation); Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (holding in cases where an inmate plaintiff is released, § 1983 claims for injunctive and declaratory relief mooted because such a judgment “would amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants' behavior towards him”) (citing Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (holding prisoner's claims for injunctive and declaratory relief concerning prison conditions were moot where prisoner had been moved to another prison unit); see also Jordan v. Sosa, 654 F.3d 1012, 1027-28 (10th Cir. 2011) (where a claim is “penitentiary specific,” a prisoner's transfer to another facility may moot the claim).
A narrow capable-of-repetition exception to the mootness doctrine exists. See McApline v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999). But Plaintiff's claims for declaratory and injunctive relief - brought against only Defendant GEO and individuals employed by GEO/LCF and ODOC as to conditions at LCF - do not fall within this exception. Compare Ind, 801 F.3d at 1209 (finding moot prisoner's challenge to state's enforcement of two-book policy while in administrative segregation as a violation of his rights under RLUIPA where prisoner was no longer in administrative segregation; court would not assume that prisoner would repeat misconduct that previously sent him to administrative segregation). Indeed, Plaintiff may not ever pass through LCF or ODOC again. See, e.g.. Guion v. Spurlock, 2015 WL 394020 at * 11-12 (D. Colo. Jan. 29, 2015) (unpublished op.) (mere theoretical possibility that prisoner would be transferred back to the prison was insufficient to give rise to application of the “capable-of-repetition” exception to the mootness doctrine). Accordingly, Plaintiff's claims against Defendant Knudson and the LCF Defendants for declaratory and injunctive relief should be dismissed as moot.
B. Plaintiff's Claim For Monetary Damages Against Defendant Knutson Is Barred By Sovereign Immunity.
In Claim One, Plaintiff seeks monetary damages against Defendant Knutson in his official capacity as an employee of ODOC. (Doc. 1, at 8-24). In his Motion to Dismiss, Defendant Knutson argues that he is immune from suit in his official capacity as a state official under the Eleventh Amendment. (Doc. 16, at 3-5). The undersigned agrees and recommends granting Defendant Knutson's Motion (Doc. 16) and dismissing Plaintiff's Claim One against Defendant Knutson without prejudice.
Under the Eleventh Amendment, “a state is entitled to immunity unless it has been abrogated by Congress or waived by the state.” Cleveland v. Martin, 590 Fed.Appx. 726, 730 (10th Cir. 2014) (citation omitted). “The immunity applies not only to suits against states, but also to damage suits brought against state officials in their official capacities.” Id. (citation omitted). While a State may waive the defense of sovereign immunity, the State of Oklahoma has not waived its sovereign immunity defense against § 1983 claims brought in federal district court cases. Id. “This Eleventh Amendment bar also applies to RLUIPA claims.” Peterson v. Lampert, 499 Fed.Appx. 782, 786 (10th Cir. 2012) (citing Sossamon v. Texas, 563 U.S. 277, 288 (2011)). Thus, with Plaintiff's requests for injunctive and declaratory relief against Defendant Knutson deemed moot, see above, “Plaintiff only requests money damages in his complaint, and his claims [against Defendant Knutson] are necessarily barred.” Id.; see also AlAmiin v. Patton, No. CIV-13-1001-F, 2016 WL 11475169, at *3 (W.D. Okla. Aug. 30, 2016), report and recommendation adopted, 2016 WL 7217857 (W.D. Okla. Dec. 13, 2016) (dismissing claims under § 1983 and RLUIPA for monetary damages against ODOC employees in their official capacities without prejudice).
C. Plaintiff's Claims For Monetary Damages Against Defendants Rivera, Higgins, Cole, and Caldwell, In Their Official Capacities, Should Be Dismissed.
On both Claim One and Two, Plaintiff seeks monetary damages from Defendants Rivera, Higgins, Cole, and Caldwell, in their official capacities only. (Doc. 1, at 4-6, 24, 36-37). Although the LCF Defendants' Motion to Dismiss (Doc. 20) does not raise this argument, the undersigned finds that these official capacity claims for monetary damages against Defendants Rivera, Higgins, Cole, and Caldwell should be dismissed with prejudice, as these parties lack an “official capacity” under the law.
It is the responsibility of the court to dismiss a claim at any time if it determines that the action fails to state a claim for which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). Moreover, the court may review the Complaint and sua sponte dismiss claims under Rule 12(b)(6) if it is patently obvious that the Plaintiff has not alleged facts sufficient to state a claim for relief, and no amendment could cure the failure. See McKinney v. Okla. Dep't of Hum. Servs., 925 F.2d 363, 365 (10th Cir. 1991); see also Phillips v. Public Serv. Co. of N.M., 58 Fed.Appx. 407, 409 (10th Cir. 2003). Such a dismissal does not violate a plaintiff's due process rights or obstruct his access to the courts. Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001); see also Phillips, 58 Fed.Appx. at 409.
While private-prison employees can be held liable in their individual capacities, “they do not have an ‘official capacity' as that term is used under Eleventh Amendment.” Jones v. Barry, 33 Fed.Appx. 967, 971 n.5 (10th Cir. 2002); see also James v. Sherrod, No. CIV-14-0146-HE, 2018 WL 466242, at *1 n.1 (W.D. Okla. Jan. 18, 2018), affirmed, 743 Fed.Appx. 198 (10th Cir. 2018) (finding “because [the defendant] is the employee of a private corporation, [he] is not a state official and can only be sued in his individual capacity”). Thus, the court should dismiss the claims for monetary damages against Defendants Rivera, Higgins, Cole, and Caldwell in their official capacities with prejudice. See, e.g., Tenison v. Byrd, 826 Fed.Appx. 682, 687 (10th Cir. 2020) (“For the same reason the defendants do not enjoy the protection of Eleventh Amendment immunity - that they are not employees of the State - they do not possess an ‘official capacity' in which to be sued.”); Miskam v. Sherrod, No. CIV-14-0646-HE, 2015 WL 4717105, at *3 (W.D. Okla. Aug. 7, 2015) (dismissing official capacity claims against private prison employees seeking monetary damages with prejudice).
And, although Plaintiff has not requested monetary damages against these defendants in their individual capacities, such relief is unavailable under RLUIPA. See Stewart v. Beach, 701 F.3d 1322, 1334 (10th Cir. 2012) (holding that “there is no cause of action under RLUIPA for individual capacity clams”).
D. Defendant GEO Is Entitled To Summary Judgment On Plaintiff's Unexhausted Claims.
The LCF Defendants seek summary judgment on the basis on their affirmative defense that Plaintiff's claims are barred because Plaintiff did not, prior to commencing this lawsuit, exhaust his available administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). (Doc. 20, at 10-11). But the undisputed evidence shows that, as to one allegation in Claim Two, Plaintiff did fully and properly exhaust his available remedies by obtaining a response on the merits of his grievance appeal at the highest level of administrative review. Thus, the undersigned recommends that the Court GRANT IN PART the LCF Defendants' Motion for Summary Judgment (Doc. 20).
1. The Exhaustion Requirement
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Because exhaustion of available remedies “is mandatory under the PLRA[,] . . . unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). This means a prisoner must use “all steps that the agency holds out, and do[] so properly (so that the agency addresses the issues on the merits).” Id. at 90 (internal quotation omitted).
But, as noted above, the PLRA's exhaustion requirement is limited to such administrative remedies as are “available” to be exhausted. “Administrative remedies are deemed unavailable if, among other things, ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (quoting Ross v. Blake, 578 U.S. 632, 644 (2016)). The court liberally construes grievances filed by unrepresented inmates. Greer v. Dowling, 947 F.3d 1297, 1302 (10th Cir. 2020).
2. The ODOC Grievance Procedure
LCF has adopted the ODOC Operations Memorandum OP-090124 grievance process for state inmates. (Doc. 19, at 3, id. at Ex. 3). The first step in the grievance process is “informal resolution,” including submitting a “Request to Staff” (“RTS”) if the complaint is not resolved. (Id. at Ex. 3, at 7-10). The informal resolution process must occur before a grievance can be submitted. (Id. at 7). The RTS “must be specific as to the complaint, dates, places, personnel involved and how the inmate/offender was affected.” (Id. at 8).
When an issue is not resolved with the informal RTS process, the inmate must submit a grievance form. (Id. at 10). The reviewing authority screens grievances to determine, among other things, whether the inmate followed proper procedures for submitting a grievance and whether the grievance and/or RTS contained more than one issue. (Id. at 12-13). The reviewing authority will notify the inmate/offender when a grievance is submitted improperly and the “inmate/offender will be given one opportunity to correct any errors and properly resubmit within 10 days of the date the inmate/offender is notified of the improper submission.” (Id. at 13). If the inmate fails to correct the errors, the grievance “will not be answered and the inmate/offender will have waived/forfeited the opportunity to proceed in the grievance process.” (Id.)
The final step in the grievance procedure is an appeal to the Administrative Review Authority (“ARA”). (Id. at 14). The appeal must be based on newly discovered or newly available evidence or probable error committed by the reviewing authority. (Id.) “The ruling of the ARA is final and will conclude the internal administrative process available to the inmate/offender within the jurisdiction of ODOC.” (Id. at 17). If an appeal is submitted improperly, “the inmate/offender will be given one opportunity to correct any errors, which must be received by the ARA within 10 days of the time the inmate/offender is notified of improper submission.” (Id. at 15). “If the inmate/offender fails to correct the errors or properly resubmit, the grievance or grievance appeal will not be answered and the inmate/offender will have waived/forfeited the opportunity to proceed in the grievance process.” (Id.)
3. Plaintiff Failed To Exhaust Administrative Remedies On The Majority of His Claims.
The undisputed evidence shows that only one of Plaintiff's grievances was exhausted as required by the PLRA. In his Complaint, Plaintiff alleges that he “exhausted all the administrative remedies (all the grievances process) with respect to all claims and all Defendants.” (Doc. 1, at 9). But the evidence he submits in support of that assertion shows that each relevant grievance was “denied” but does not allege any further appeal as required to exhaust his administrative remedies. (Id. at Ex. 4, at 2). The sworn declarations and special reports submitted by LCF and Defendant Knudson likewise show that Plaintiff failed to exhaust his administrative remedies on all but one of his grievances related to his claims. (Doc. 15, at 7-8; Doc. 19, at 4-7).
In his sole exhausted grievance, LCF 039-23, Plaintiff complained that he was wrongly “receiving no hot meal at all on Saturday, the Jewish Sabbath,” in contravenes of the Halal dietary policy. (Doc. 15, at Ex. 9; at 11-12; Doc. 19, at Ex. 12, at 5-6). LCF follows ODOC's Protocol for Kosher/Halal Menu Preparation and Serving, OP-070202 Attachment A, which allows that for the Halal diet, “[h]ot meals may be served on the Sabbath (Saturday.)” (Doc. 20, at Ex. 1, at 4) (emphasis added). In response to Plaintiff's grievance, GEO/LCF informed Plaintiff that they were following the policy, that “we serve our halal meals cold,” and that he could heat his meal with the provided microwaves. (Doc. 15, at Ex. 9, at 10; Doc. 19, at Ex. 12, at 4). Plaintiff appealed this grievance to the ARA, claiming that that GEO/LCF was violating the ODOC policy and “forcing Jewish faith on [him] by serving [him] only cold meals on Saturday when ODOC policy clearly states Halal meals are exempt from only receiving cold meals . . . on Saturday and may receive a to-be-heated ‘hot' meal.” (Doc. 15, at Ex. 9, at 8-9). The ARA found the grievance response inconsistent with the RTS response and ordered further action/investigation by GEO/LCF and an amended response regarding “specifically how halal meals are served on Saturdays.” (Doc. 15, at Ex. 9, at 7). In an amended response to Plaintiff's grievance, GEO/LCF granted partial relief and stated that it “provided 3 different cycles on the Halal Meals” and “[s]ome Saturdays is cold meals and other Saturdays are hot.” (Doc. 19, at Ex. 12, at 3). Plaintiff again appealed this grievance to the ARA, and the ARA affirmed the decision, holding that Plaintiff failed to substantiate his appeal with any authority for error. (Doc. 15, at Ex. 9, at 2; Doc. 19, at Ex. 12, at 1). The ARA noted that Plaintiff had now “satisfied the exhaustion of administrative remedies required by 57 O.S. § 564.” (Id.) This grievance relates to a portion of Plaintiff's Claim Two in his Complaint. (Doc. 1, at 2931).
In sum, the undersigned finds that Defendants' affirmative defense of failure to exhaust administrative remedies is established as a matter of law as to all but one of Plaintiff's grievances. The undersigned therefore recommends the Court GRANT IN PART the LCF Defendants' Motion for Summary Judgment (Doc. 20) as to Claim One and any other allegation contained in Claim Two aside from those addressed in and exhausted by grievance LCF 039-23.
E. Defendant GEO Is Entitled To Judgment As A Matter Of Law On Plaintiff's § 1983 and RLUIPA Claims Related To His Exhausted Grievance.
In their Motion for Summary Judgment (Doc. 20), the LCF Defendants argue that Plaintiff failed to exhaust his administrative remedies on any grievance related to the claims in his Complaint. (Doc. 20, at 10-12). The undisputed evidence shows that Plaintiff did indeed exhaust grievance LCF 039-23. Nevertheless, the undersigned finds that the undisputed evidence shows that Defendant GEO is entitled to judgment as a matter of law on the remaining portion of Claim Two related to this grievance. See Fed.R.Civ.P. 56(f)(2)-(3). To the extent Plaintiff disagrees with the undersigned's analysis, he will be granted “notice and a reasonable time to respond” by this recommendation and the following objection period, see below Section IV.
As a threshold matter, it is unclear whether Plaintiff intends to assert a claim for monetary damages against Defendant GEO pursuant to either § 1983 or RLUIPA. It is likewise an open and potentially complex question whether a RLUIPA claim for monetary damages exists against a private prison. See Phillips v. Tiona, 508 Fed.Appx. 737, 750 (10th Cir. 2013) (noting that “several courts have held that under [RLUIPA], private prisons qualify as ‘instrumentalities' of state government” within the meaning of § 2000cc-5(4)(A)(ii)).
Plaintiff's Complaint states that he seeks monetary damages from Defendants Knutson, Rivera, Higgins, Cole, and Caldwell on Count One and Defendants Rivera, Higgins, Cole, and Caldwell on Count Two, in their official capacities only. (Doc. 1 at 4-6, 24, 34-37).
Regardless, Plaintiff does not identify any policy or custom promulgated by Defendant GEO that has resulted in a violation of his rights. Under Tenth Circuit law, a private corporation's liability under § 1983 is governed by the same standards applicable to a municipality. See, e.g, Smedley v. Corrections Corp. of Am., 175 Fed.Appx. 943, 94546 (10th. Cir. 2005) (applying Monnell doctrine to determine liability of a private corrections facility under well-established law) (citing Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003)). Thus, Defendant GEO cannot be held vicariously liable for the acts of its agents; instead, it must be shown that Defendant GEO caused the constitutional violation by instituting an official policy or custom that was the direct cause or “moving force” behind the constitutional violations. Monnell v. Dep't of Social Servs. Of New York, 436 U.S. 658 (1978).
These same standards would extend to Plaintiff's RLUIPA claims against Defendant GEO. See Al-Fuyudi v. Correction Corp. of Am., No. CIV-12-1170-D, 2016 WL 1117607, at *1 (W.D. Okla. Mar. 22, 2016) (adopting report and recommendation that, “assuming RLUIPA permits the recovery of money damages from a private corporation, Plaintiff also lists GEO as a defendant on each count but does not specify any relief sought from Defendant GEO. (Id. at 8, 26).
Plaintiff has failed to identify a policy or custom promulgated by [a private prison] that would create liability,” and granting defendants judgment on that claim). See, e.g., Ciempa v. Jones, 745 F.Supp.2d 1171, 1200 (N.D. Okla. 2010) (finding “logic” of § 1983's personal participation requirement applicable to RLUIPA); Lowery v. Edmondson, 528 Fed.Appx. 789, 792 (10th Cir. 2013) (affirming dismissal of prisoner's RLUIPA claim alleging defendants did not allow prisoner to keep fez in his cell or wear it for religious purposes: “[t]o the extent Mr. Lowery sought to challenge a prison policy, he had the burden to name and explain the various defendants' involvement, if only as policymakers”).
Plaintiff's Complaint fails to identify any policy or custom promulgated by Defendant GEO that has resulted in the violation of his rights. Indeed, Plaintiff's sole exhausted grievance rests on his misinterpretation of the discretionary language in OP-070202, that hot meals “may” be served to Halal inmates on Saturdays. In other words, the policy allowed for Halal inmates to be served hot food on Saturdays (as opposed to Jewish inmates, who cannot receive hot food on Saturdays), but did not obligate LCF to serve Halal inmates hot food on Saturdays. That is, Plaintiff argues (incorrectly) that one or more of the Defendants did not follow the ODOC and GEO/LCF Halal diet policy, and that failure resulted in the violation of Plaintiff's rights. This does not sufficiently allege a claim against Defendant GEO pursuant to § 1983 or RLUIPA, and Defendant GEO is therefore entitled to judgment on the exhausted portion of Claim Two.
Moreover, Plaintiff has not sufficiently alleged that Defendant GEO substantially burdened his religious exercise pursuant to RLUIPA or in violation of his First Amendment rights. In establishing such a claim, Plaintiff must show (in part) that Defendant GEO's actions have substantially burdened Plaintiff's religious exercise. Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014) (citing 42 U.S.C. § 2000cc-1(a)); Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (to allege a constitutional violation under the Free Exercise Clause, the prisoner must show that a prison regulation substantially burdened sincerely held religious beliefs); see also Al-Fuyudi, 2016 WL 1117607, at *1 n.3 (adopting report and recommendation that, “with regard to any parallel § 1983 claim asserting a violation of Plaintiff's First Amendment right to free exercise of religion, . . . the claim would fail due to Plaintiff's failure to demonstrate a substantial burden on a sincerely held religious belief,” and granting defendants judgment on both § 1983 and RLUIPA claims).
The substantial burden inquiry focuses on “the coercive impact of the government's actions.” Yellowbear, 741 F.3d at 55. A burden is substantial when the government “(1) requires the plaintiff to participate in an activity prohibited by a sincerely held religious belief, (2) prevents the plaintiff from participating in an activity motivated by a sincerely held religious belief, or (3) places considerable pressure on the plaintiff to violate a sincerely held religious belief - for example, by presenting an illusory or Hobson's choice where the only realistically possible course of action available to the plaintiff trenches on sincere religious exercise.” Id.
Plaintiff's only exhausted claim challenging the halal diet at LCF is based on conclusory allegations of sporadic instances of alleged unsatisfactory food. In his exhausted grievance, Plaintiff does not allege that the meals he was served were not in compliance with his religious diet or otherwise inedible; he merely claims that GEO/LCF occasionally served him a cold meal when they should have served him a hot meal in accordance with the ODOC and GEO/LCF policy, based on Plaintiff's incorrect reading of that policy. Plaintiff's allegation that he was occasionally served a cold meal rather than a hot meal does not allege a violation under RLUIPA. See, e.g., Abdulhaseeb v. Calbone, 600 F.3d 1301, 1321 (10th Cir. 2010) (holding that not “every single presentation of a meal an inmate considers impermissible constitutes a substantial burden on an inmate's religious exercise”); Strope v. Cummings, 381 Fed.Appx. 878, 881-882 (10th Cir. 2010) (finding plaintiff's complaints “reflect the inconvenience of non-preferred or occasionally unsatisfactory items in a meal” and did not substantially burden his religious diet).
Likewise, Plaintiff has not sufficiently alleged that Defendant GEO violated his right to equal protection under the Fourteenth Amendment. “The Equal Protection Clause of the Fourteenth Amendment . . . is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiff's exhausted claim does not argue that he was denied food in compliance with his religious diet as opposed to other inmates of a different religion; instead, he argues that he received the same treatment (cold meal on Saturday) as the Jewish inmates when he could have received his preferred treatment (hot meal). Plaintiff therefore “fails to identify any similarly-situated individual that has been given any different or more beneficial treatment.” Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009).
For the reasons discussed above, the undersigned recommends that the Court GRANT Defendant GEO judgment in its favor on the exhausted portion of Claim Two.
IV. Recommendation and Notice of Right to Object.
Based on the foregoing findings, it is recommended that Defendant Knutson's Motion to Dismiss (Doc. 16) be GRANTED, the LCF Defendants' Motion to Dismiss (Doc 20) be GRANTED IN PART, the LCF Defendants' Motion for Summary Judgment (Doc. 20) be GRANTED IN PART, and that the Court GRANT judgment in favor of the Defendant GEO on Plaintiff's sole exhausted claim.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before April 26, 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 and terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.