Harris v. Trani et al

Filing 84

ORDER. The 78 Recommendation of United States Magistrate Judge is accepted. Defendants' 44 motion to dismiss is granted and this case is dismissed without prejudice in its entirety. By Judge Philip A. Brimmer on 3/29/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-00027-PAB-CBS
JENNIFER D. HARRIS,
Plaintiff,
v.
RAMONA AVANT, Captain,
TODD COWENS, Lieutenant, and
TONYA GAMBLIN, Sergeant,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 78] filed on February 16, 2012.
The magistrate judge recommends that the Court grant defendants’ motion to dismiss
[Docket No. 44] and dismiss plaintiff’s complaint in its entirety. Plaintiff filed objections
to the Recommendation, see Docket No. 83, and the Court will “determine de novo any
part of the magistrate judge’s disposition that has been properly objected to.” Fed. R.
Civ. P. 72(b)(3). When conducting that review, the Court liberally construes plaintiff’s
filings because she appears pro se. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however,
may not act as her advocate. See Hall, 935 F.2d at 1110.
Plaintiff asserts four claims for relief against defendants. In her first claim for
relief, plaintiff, whose “religion is Judaism,” alleges that defendants violated her rights

under the free exercise clause of the First Amendment1 when she was directed to
“move to another room” on a Saturday, her Sabbath, and on a separate occasion was
instructed to throw away a kosher meal. Docket No. 28 at 7. In plaintiff’s second claim
for relief, which she asserts pursuant to the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc–5, plaintiff alleges that she
was forced to sign her name on two forms to effectuate the change in cells on her
Sabbath Day.
Liberally construing plaintiff’s complaint, the Court has considered all three
incidents in light of the First Amendment and the RLUIPA. The Court concludes that
forcing defendant to throw away a single kosher meal did not “substantially burden[] . . .
sincerely-held religious beliefs.” Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir. 2007).
Such “[i]solated acts or omissions . . . do not constitute a substantial burden on
religious freedom” for purposes of the First Amendment, Mubashshir v. Moore, 2011
WL 1496670, at *6 (N.D. Ohio 2011),2 or the RLUIPA. See Furnace v. Sullivan, 2008
WL 4856826, at *4 (N.D. Cal. Nov. 10, 2008) (“Although plaintiff alleges in his complaint

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Although the First Amendment applies to state actors by way of incorporation
into the due process clause of the Fourteenth Amendment, the Court will, for ease of
reference, refer only to the First Amendment.
2

The Mubashshir court, see 2011 WL 1496670, at *6, cited the following
collection of cases: White v. Glantz, 1993 WL 53098, at *2 (10th Cir. Feb. 25, 1993);
Gunn v. Kentucky, 2010 WL 2555756, at *5 (W.D. Ky. June 18, 2010); Greenberg v.
Hill, 2009 WL 890521, at *6 (S.D. Ohio Mar. 31, 2009) (“[I]solated or sporadic
government action or omission is de minimis and does not constitute a ‘substantial
burden.’”); Marr v. Case, 2008 WL 191326, at *5 (W.D. Mich. Jan.18, 2008) (“The one
time deprivation of a kosher eating utensil does not amount to a substantial burden of
Plaintiff's ability to exercise his religion.”); Randall v. McLeod, 1995 WL 581973, at *4
(5th Cir. Sept. 15, 1995).
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that he was denied his right to religious exercise when defendants failed to provide him
with his approved religious breakfast tray, he does not allege facts that show this
isolated incident imposed a substantial burden on his religious exercise by causing him
to modify his behavior in a way that violated his beliefs.”) (citing Alston v. Dep’t of
Corrections, 2007 WL 4410770, *4-5 (W.D. Va. Dec.14, 2007)); see also Subil v. Sheriff
of Porter County, 2005 WL 1174218, at *4 (N.D. Ind. Apr. 29, 2005) (“Lack of a Kosher
diet at the jail where he is housed may constitute a substantial burden, but missing an
occasional meal while being transported to and from court is simply an inconvenience
and not a substantial burden.”) (citation omitted).
Plaintiff’s allegations regarding being forced to violate her observance of the
Sabbath presents a potentially closer question. Compare Gillard v. Kuykendall, 295 F.
App’x 102, 105 (8th Cir. 2008) (“We conclude the district court erred in determining that
requiring Gillard to mop and sweep his cell on Saturdays did not substantially burden
his sincerely held religious belief. . . . [W]hile [defendants] presented testimony that the
cleaning took only five to ten minutes, the evidence also showed that performing any
work whatsoever on a Saturday before 6 p.m. . . . violated Gillard’s religious belief
unless a job that he was holding to support his family required him to work on
Saturday.”), with Subil v. Sheriff of Porter County, 2008 WL 4690988, at *5 (N.D. Ind.
Oct. 22, 2008) (“While the defendant shows that the rule requiring Subil to clean his cell
on Sabbath was a general one applied equally to all inmates, more than general
applicability is required to defeat a RLUIPA claim.”). Defendants, however, have
asserted the qualified immunity defense and, under the doctrine of qualified immunity,

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“government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Snyder v. Trudell, 2009 WL
37183, at *6-7 (E.D. Mich. Jan. 6, 2009). “A plaintiff can demonstrate that a
constitutional right is clearly established by reference to cases from the Supreme Court,
the Tenth Circuit, or the weight of authority from other circuits.” Gann v. Cline, 519 F.3d
1090, 1092 (10th Cir. 2008) (quoting Anderson v. Blake, 469 F.3d 910, 914 (10th Cir.
2006)) (internal quotation marks omitted). A plaintiff need not identify “a case directly
on point, but existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2011 WL 2119110 (May
31, 2011).
There has been no showing that it was clearly established at the time that
requiring plaintiff to move cells and sign documents on her Sabbath on a single
occasion constituted a First Amendment or RLUIPA violation. See Allan v. Woods,
2008 WL 724240, at *7 (N.D.N.Y. March 17, 2008) (“[T]he fact that plaintiff had to work
one half day on his Sabbath did not substantially burden the practice of his religion
under RLUIPA. The same is true of plaintiff’s First Amendment rights.”). Therefore,
defendants are entitled to qualified immunity to the extent plaintiff has asserted her first
and second claims against them in their individual capacities. And, to the extent
plaintiff sues them in their official capacities, she has failed to plead facts indicating any
ongoing violation of federal law that would support prospective injunctive relief. See

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Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1232 (10th Cir. 2010);
see also Sossamon v. Texas, --- U.S. ----, 131 S. Ct. 1651, 1658-59 (2011) (“RLUIPA’s
authorization of ‘appropriate relief against a government,’ is not the unequivocal
expression of state consent that our precedents require. ‘Appropriate relief’ does not so
clearly and unambiguously waive sovereign immunity to private suits for damages that
we can ‘be certain that the State in fact consents’ to such a suit.”) (citation omitted).
Therefore, the Court will dismiss plaintiff’s first and second claims in their entirety.
Plaintiff’s third claim for relief alleges that defendants forced her to move from
one cell to another in violation of her procedural due process rights under the
Fourteenth Amendment. The Court “examine[s] procedural due process questions in
two steps: the first asks whether there exists a liberty or property interest which has
been interfered with by the [government]; the second examines whether the procedures
attendant upon that deprivation were constitutionally sufficient.” Kentucky Dep’t of Corr.
v. Thompson, 490 U.S. 454, 460 (1989) (internal citations omitted). Because plaintiff
has “no protected liberty interest in the location of [her] confinement,” Overturf v.
Massie, 385 F.3d 1276, 1279 (10th Cir. 2004), her third claim for relief fails.
In regard to plaintiff’s fourth claim for relief, the Court agrees with the
Recommendation that plaintiff has failed to allege adequate facts supporting the
inference that any negative treatment she suffered at the hands of any defendant was
due to her engaging in protected conduct. See Gee v. Pacheco, 627 F.3d 1178, 1191
(10th Cir. 2010) (“Mr. Gee’s allegations of retaliation for exercising his First Amendment
rights are vague and conclusory. ‘Mere allegations of constitutional retaliation will not

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suffice; plaintiffs must rather allege specific facts showing retaliation because of the
exercise of the prisoner’s constitutional rights.’”) (citation omitted). Therefore, the Court
will grant defendants’ request to dismiss plaintiff’s fourth claim, which alleges unlawful
retaliation.
As a final note, plaintiff requested leave to amend her complaint in her response
to defendants’ motion to dismiss. See Docket No. 60 at 32. Plaintiff, however, has not
filed a motion to amend. The Local Rules of this District are clear that a “motion shall
not be included in a response or reply to the original motion,” but rather “shall be made
in a separate paper.” D.C.COLO.LCivR 7.1C; see Calderon v. Kansas Dep’t of Social
and Rehabilitation Servs., 181 F.3d 1180, 1186 (10th Cir. 1999) (“We have recognized
the importance of Fed. R. Civ. P. 7(b) and have held that normally a court need not
grant leave to amend when a party fails to file a formal motion.”); see also Blythe v.
Southwest Airlines Co., 2010 WL 2473863, at *3 (10th Cir. June 18, 2010) (concluding
that plaintiff’s request, in response to a motion to dismiss, for sixty days to amend her
complaint failed to “‘give adequate notice to the district court and to the opposing party
of the basis of the proposed amendment’” and, therefore, “the district court correctly
denied her leave to amend her complaint”) (quoting Calderon, 181 F.3d at 1186-87).
Furthermore, although it is not clear precisely in what manner plaintiff seeks to amend
her complaint, it appears that plaintiff is only seeking permission to name additional
defendants to her present claims. See Docket No. 60 at 32 (seeking leave to add
defendants to “Claims One, Two, (A) (B), and Claim Three, and Five”).3 “Ordinarily, the
3

The Court cannot determine whether “Claim . . . Two, (A) (B)” refers to each
form she was required to sign, as described in her second claim for relief. Furthermore,
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district court should permit a pro se litigant to amend an inadequate complaint,” Belden
v. Lampert, 2011 WL 6881905, at *3 (10th Cir. Dec. 30, 2011) (citing Gee, 627 F.3d at
1195), but for the reasons discussed above, adding additional defendants to any of the
four claims would be futile. See Atkins v. Sweetwater County Sheriff’s Office, 2012 WL
580575, at *4 (10th Cir. Feb. 23, 2012) (“Although Atkins did not state a plausible claim
for relief, his exhaustive account of the events surrounding and preceding his arrest
permitted the district court to reasonably conclude he would gain little from an
opportunity to amend.”). Furthermore, plaintiff has already been afforded two
opportunities to amend her complaint, see Gee, 627 F.3d at 1195 (concluding that “[t]he
district court . . . should have afforded [plantiff] the opportunity to amend his complaint
before dismissing every claim with prejudice”), and plaintiff has not supplied her
proposed third amended complaint along with her request. See Atkins, 2012 WL
580575, at *4 (affirming district court’s rejection of plaintiff’s request for leave to amend
or for a dismissal without prejudice in part based on the fact that plaintiff “did not supply
a proposed amended complaint or even detail what additional facts would be included
in it”). The Court, therefore, identifies no basis to grant plaintiff leave to amend her
complaint. Cf. McNamara v. Pre-Paid Legal Servs., Inc., 189 F. App’x 702, 719 (10th
Cir. 2006) (“Plaintiffs failed to adequately request amendment and to support that
request. Consequently, the district court did not err in dismissing this case without
leave to amend.”). The Court, however, will nevertheless dismiss plaintiff’s claims
without prejudice.
the Court assumes plaintiff intended to refer to her fourth claim instead of a nonexistent “Claim . . . Five.”
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In light of the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 78] is ACCEPTED to the extent explained above. It is further
ORDERED that defendants’ motion to dismiss [Docket No. 44] is granted and
this case is dismissed without prejudice in its entirety.

DATED March 29, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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