Hoeck v. Miklich et al

Filing 47

ORDER that the Recommendation of United States Magistrate Judge Docket No. 35 is ADOPTED in part. It is further ORDERED that the Motion to Dismiss Docket No. 28 filed by defendants Lance Miklich, Ted Stenzel, Darryl Proffit, Mary Toomey, Linda Worthen, Scott Lancaster, Tom Jordan, Valarie Craig, Ken Topliss, J. Stricklett, and Mary Ann Aldrich is GRANTED in part and DENIED in part, by Judge Philip A. Brimmer on 2/19/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-00206-PAB-KLM
DAVID B. HOECK,
Plaintiff,
v.
LANCE MIKLICH,
TED STENZEL,
DARRYL PROFFIT,
MARY TOOMEY,
LINDA WORTHEN,
SCOTT LANCASTER,
TOM JORDAN,
VALARIE CRAIG,
KEN TOPLISS,
J. STRICKLETT, and
MARY ANN ALDRICH,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 35]. The magistrate judge
recommends that the Court grant the Motion to Dismiss [Docket No. 28] filed by
defendants Lance Miklich, Ted Stenzel, Darryl Proffit, Mary Toomey, Linda Worthen,
Scott Lancaster, Tom Jordan, Valarie Craig, Ken Topliss, J. Stricklett, and Mary Ann
Aldrich. On December 20, 2013, plaintiff filed timely objections [Docket No. 42] to the
Recommendation.1 Therefore, the Court will “determine de novo any part of the
1

In response to plaintiff’s motion indicating that he was not initially served with a
copy of the Recommendation, Docket No. 38, the Court extended the time for plaintiff

magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). In light of plaintiff’s pro se status, the Court reviews his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3
(10th Cir. 1991).
Plaintiff is an inmate at the Colorado Territorial Correctional Facility (“CTCF”)
within the Colorado Department of Corrections (“CDOC”). Defendants work in various
capacities at CTCF. The Recommendation sets forth the relevant background facts
and the Court will not recite them here. See Docket No. 35 at 2-3.
I. ANALYSIS
The magistrate judge found that defendants were entitled to qualified immunity
on plaintiff’s claim for violation of his First Amendment right to the free exercise of
religion and that plaintiff failed to state a claim under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5, because
plaintiff failed to sufficiently identify his purported religion and associated beliefs.
Docket No. 35 at 13-26. Plaintiff objects to this finding on the basis that he filed a “list
of items needed in practicing his sincerely held religious beliefs, along with practices
and tenets of the Biblical Christian faith” in conjunction with his initial complaint and that
this list sufficiently specifies the nature of his beliefs.2 Docket No. 42 at 1 (citing Docket

to file a response. Docket No. 39.
2

Plaintiff does not object to the magistrate judge’s conclusions regarding
defendants’ Eleventh Amendment immunity from claims for damages; the running of
the statute of limitations on a number of his allegations; or the dismissal of his
Fourteenth Amendment claim. In the absence of an objection, the district court may
review a magistrate judge’s recommendation under any standard it deems appropriate.
See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn,
2

No. 1 at 5-6).
A “pleading that has been amended under [Federal Rule of Civil Procedure]
15(a) supersedes the pleading it modifies.” Gilles v. United States, 906 F.2d 1386,
1389 (10th Cir. 1990) (internal citation omitted). A statement in a superseded complaint
“may be adopted by reference elsewhere in the same pleading or in any other pleading
or motion,” Fed. R. Civ. P. 10(c), “but only if reference to allegations in the prior
complaint is direct and specific.” Fullerton v. Maynard, 1991 WL 166400, at *2 (10th
Cir. Aug. 29, 1991).
In his second amended complaint, plaintiff requests the following relief: “Order
Defendants to recognize and accommodate Plaintiff’s faith group, Biblical Christian,
equally with other faith groups and distinctly separate from all other faith groups. (List
of faith group practices was included with the original Complaint filed in this case).”
Docket No. 25 at 5, ¶ D.
Since plaintiff is pro se and directly and specifically refers in his second
amended complaint to the list of religious practices filed in conjunction with his initial
complaint, the Court will consider this list in ruling on plaintiff’s objections to the
Recommendation. See Fullerton, 1991 WL 166400, at *2; Fed. R. Civ. P. 10(c).

474 U.S. 140, 150 (1985) (“[i]t does not appear that Congress intended to require
district court review of a magistrate’s factual or legal conclusions, under a de novo or
any other standard, when neither party objects to those findings”). In this matter, the
Court has reviewed the portions of the Recommendation to which plaintiff does not
object to satisfy itself that there is “no clear error on the face of the record.” Fed. R.
Civ. P. 72(b), Advisory Committee Notes. This standard of review is something less
than a “clearly erroneous or contrary to law” standard of review, Fed. R. Civ. P. 72(a),
which in turn is less than a de novo review. Fed. R. Civ. P. 72(b). Based on this
review, the Court has concluded that these portions of the Recommendation correctly
apply the facts and the law.
3

The list in question is entitled “Practices of the Church of God and faith group
‘Biblical Christian’” and sets forth a list of twenty tenets of Biblical Christianity and
accompanying requirements for practicing the faith. See, e.g., Docket No. 1 at 5-6, ¶ 2
(“New year observance based upon the sighting of the new moon, as well as the barley
in the head and the flax in the bud in Zion. Crop report should be posted in each living
unit.”); id. at ¶ 3 (“The seventh day Sabbath is observed from sunset Friday until sunset
Saturday. We are required to refrain from ANY form of work and we may not have
ANYONE do ANY work for us. Meals must be prepared and served prior to the
Sabbath in disposable containers that we are allowed to bring with us to services, or to
our living units. This is a day of feasting and double portion meals should be served
throughout. All laundry, etc., must be done prior to the Sabbath or afterwards. We
require a place to worship from sunrise to sunset, that is free of idols, images, pagans,
etc.”); id. at ¶ 7 (“The Feast of Trumpets begins on the first day of the seventh month at
sunset, with the sighting of the first visible crescent moon in Zion. This is an annual
Sabbath with the same requirements as the weekly Sabbath. Shofar required.”); id. at
¶ 18 (“We would like to have access to musical instruments, cd player, cd of church
hymns, Church of God Bible Hymnals, as we are required to make a joyful noise to the
Lord.”). The list explains that Biblical Christians are “required to live by every word that
proceeds from the mouth of God” and “believe that only two laws have passed from the
Holy Bible, which are animal sacrifice and circumcision of the flesh.” Id. at 6, ¶ 11.
In addition, plaintiff alleges in his second amended complaint that (1) he
obtained a religious diet from CTCF in fall 2008, Docket No. 25 at 8, ¶ 2; (2) he wrote to

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various defendants regarding his religious beliefs in June 2010, id. at 8, ¶¶ 9-10; (3) in
April 2011, he refused to turn in linens for laundering because doing so conflicted with
his observance of the Sabbath, id. at 9, ¶ 12; (4) in June 2011, he requested that the
canteen carry religious remedies, id. at 9, ¶ 13; (5) in March 2012, he refused to work
on the Sabbath, resulting in his eventual termination from his work assignment, id. at 9,
¶ 15; (6) as of June 2013, he has been fasting every Sabbath “due to his inability to
possess food items and the fact that CDOC and CTCF will not provide a diet for him
consistent with his religious beliefs.” Id. at 12, ¶ 34.
A. First Amendment
In their motion to dismiss, defendants argue they are entitled to qualified
immunity on plaintiff’s First Amendment claim because plaintiff did not plausibly allege
the nature or sincerity of his purported religious beliefs. Docket No. 28 at 10-11.
Qualified immunity shields government officials from claims for money damages
absent a showing that (1) the official violated a constitutional right and (2) the right was
“clearly established” at the time the challenged conduct occurred. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In contrast to a standard motion for summary
judgment–which places the burden on the moving party to demonstrate the lack of a
genuine issue of material fact–a motion for summary judgment based on a claim of
qualified immunity shifts the burden to the non-moving party. Lynch v. Barrett, 703 F.3d
1153, 1158 (10th Cir. 2013) (citation omitted).
Accordingly, a plaintiff opposing a motion for summary judgment on the basis of
qualified immunity must carry a two-part burden. Hobbs ex rel. Hobbs v. Zenderman,

5

579 F.3d 1171, 1183 (10th Cir. 2009). First, he must show that “a ‘favorable view’ of
the facts alleged show[s] the violation of a constitutional right.” Holland ex rel. Overdorff
v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001) (overruled on other grounds by Pearson v. Callahan, 555 U.S. 223,
235-36 (2009)). Second, he must show that the right violated was clearly established at
the time of the defendant’s actions. Serna v. Colo. Dept. of Corrs., 455 F.3d 1146,
1150 (10th Cir. 2006) (citing Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)).
A constitutional right is clearly established for the purpose of qualified immunity if
“its contours [are] sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002); Morris v.
Noe, 672 F.3d 1185, 1196 (10th Cir. 2012) (“The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”)
(internal citation omitted). In other words, the “salient” question is whether “the state of
the law” at the time of the defendant's challenged actions afforded “fair warning” that
those actions were unconstitutional. Hope, 536 U.S. at 741.
“Ordinarily, [the Tenth Circuit requires] that for a rule to be clearly established,
there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as the
plaintiff maintains.” Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir.
2007) (internal citation omitted). However, it is not necessary that prior cases evidence
an identical set of facts. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

6

Hope “shifted the qualified immunity analysis from a scavenger hunt for prior cases with
precisely the same facts toward the more relevant inquiry of whether the law put
officials on fair notice that the described conduct was unconstitutional.” Id. The Tenth
Circuit accordingly treats cases as lying along a spectrum: the more “obviously
egregious” the conduct, “the less specificity is required from prior case law.” Id. This
approach requires government officials to make “reasonable applications of the
prevailing law to their own circumstances.” Id.
“Under the First . . . Amendment[ ], inmates are entitled to the reasonable
opportunity to pursue their sincerely-held religious beliefs.” Gallagher v. Shelton, 587
F.3d 1063, 1069 (10th Cir. 2009). To state a free exercise claim, an incarcerated
plaintiff must first show that a prison regulation “substantially burdened [his]
sincerely-held religious beliefs.” Id. Consequently, “[t]he first questions in any free
exercise claim are whether the plaintiff’s beliefs are religious in nature, and whether
those religious beliefs are sincerely held.” If the plaintiff satisfies this first inquiry,
defendant prison officials must then “identif[y] the legitimate penological interests that
justif[ied] the impinging conduct.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)
(citations and footnote omitted). “The burden then returns to the prisoner to ‘show that
these articulated concerns were irrational.’” Id. at 1218 n.2 (citation omitted). To
determine the reasonableness of the regulation “[a]t that point, courts balance the
factors set forth in Turner [v. Safley, 482 U.S. 78, 89-91 (1987.]” Id. at 1218-19.
1. Sincerely Held Religious Beliefs
In Kay, the Tenth Circuit held that a plaintiff met the first prong of a free exercise

7

claim where he alleged that (1) his religion was “Wicca”; (2) he “persistently asked
prison administrators for permission to possess tarot cards in order to practice his
religion”; (3) on “two occasions, he surreptitiously brought tarot cards into the [prison]
and was disciplined for it.” 500 F.3d at 1220. The court found that “Wicca is a
polytheistic faith based on beliefs that prevailed in both the Old World and the New
World before Christianity. Its practices include the use of herbal magic and benign
witchcraft.” Id. at 1219 n.5 (citing O’Bryan v. Bureau of Prisons, 349 F.3d 399, 400 (7th
Cir. 2003)). The court concluded that “these facts evince some conviction on Kay’s part
to practice his faith with the use of tarot cards.” Id. at 1220.
In Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999), the court held that the
plaintiff had established the sincerity of his belief for purposes of summary judgment
where he “submitted prison documentation that: (1) listed his religious preference as
Jewish; (2) showed his participation in kosher meal programs in several other
correctional facilities; and (3) showed that he had actually gone without food for several
days to avoid eating non-kosher food.”
In Smith v. Bruce, 568 F. Supp. 2d 1277, 1282 (D. Kan. 2008), the court denied
summary judgment to defendants on a free exercise claim on the basis that the record
contained sufficient “evidence that plaintiff was a practicing Muslin during his entire
incarceration.” Specifically, the court relied on evidence that the “chaplain authorized
him to receive a vegetarian diet for religious purposes in December of 2003 . . . and the
record does not reveal any departure from his practice of the Muslim faith, . . . since
that time. Even when plaintiff was removed from the vegetarian diet, he continued to
eat only beans and rice.” Id.
8

In contrast, the court in Ochoa v. Connell, 2007 WL 3049889, at *7 (N.D.N.Y.
Oct. 18, 2007), dismissed a free exercise claim where the plaintiff failed to “allege the
nature and content of his beliefs, how he came to hold them, and what difference they
have made in his life” and did not “describe his participation in other religious activities
such as Sabbath observances, dietary strictures, religious meetings, holy feast days, or
other significant religious activities to which he purportedly adheres.”
Taking into account the list of religious practices incorporated by reference into
plaintiff’s second amended complaint, plaintiff’s allegations are sufficiently specific to
meet the first prong of a First Amendment free exercise claim. Plaintiff alleges that, as
a Biblical Christian, he believes, inter alia, that (1) he must adhere to “every word” of the
Christian Bible, with the exception of practicing animal sacrifice and “circumcision of the
flesh,” Docket No. 1 at 6, ¶ 11; (2) he is not permitted to perform any work–including
laundry–on the Sabbath, nor is he permitted to have someone else perform such work
on his behalf; (3) he must eat a double portion of food on the Sabbath; (4) he must
observe a number of feast and holy days, including Passover, Pentecost, the Feast of
Trumpets, the Day of Atonement, and the Feast of Tabernacles; (5) baptism should
proceed by full-water immersion; and (6) he cannot eat any animal that contains blood,
was “strangled or that die[d] of itself” and he cannot eat fat or lard. See Docket No. 1 at
5-6. As in Kay, plaintiff alleges that he persistently requested religious items from
prison administrators and that, in an attempt to adhere to the strictures of his faith, he
incidently violated prison rules. See 500 F.3d at 1221. As in Jackson, he alleges that
he has gone without food at times in order to avoid violating religious dietary laws. See

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196 F.3d at 320; Docket No. 25 at 12, ¶ 34. As in Smith, he alleges that he obtained a
religious diet several years ago, upon his initial transfer to his current facility. See 568
F. Supp. 2d at 1282. Although he does not set forth “how he came to hold” his
particular beliefs or “what difference they have made in his life,” he does “describe his
participation in other religious activities such as Sabbath observances, dietary
strictures, religious meetings, holy feast days, [and] other significant religious activities
to which he purportedly adheres.” See Ochoa, 2007 WL 3049889, at *7.
In sum, this is not one of those “very rare case[s] in which the plaintiff’s beliefs
are so bizarre, so clearly nonreligious in motivation that they are not entitled to First
Amendment protection.” Kay, 500 F.3d at 1219-20 (internal citation and alterations
omitted).
Defendants do not “identify the legitimate penological interests that justified the
[allegedly] impinging conduct,” id. at 1218 (internal citation alterations omitted); see
generally Docket No. 28, and thus the Court cannot conclude that, according to the
facts alleged, defendants did not “substantially burden” plaintiff’s “sincerely-held
religious beliefs.” See Gallagher, 587 F.3d at 1069.
2. Clearly Established
Kay clearly establishes that “enough factual support exists to rationally and
plausibly conclude” that a plaintiff is a “sincere devotee” of a particular faith where the
plaintiff alleges that he “persistently asked prison administrators for permission to
possess” certain items “in order to practice his religion,” that his request was denied,
and that, on several occasions, he “surreptitiously” circumvented prison rules in order to

10

obtain such items and “was disciplined for it.” See 500 F.3d at 1219-20. Kay is
sufficient to put a reasonable prison official on notice that denying an inmate articles,
prayer facilities, dietary and scheduling accommodations, or other forms of recognition
necessary to practice his sincerely held religious beliefs could violate the First
Amendment.
3. Personal Participation
Defendants argue that plaintiff fails to allege personal participation on the part of
defendants Miklich and Stenzel. Docket No. 28 at 6.
In regard to defendant Miklich, plaintiff alleges that:
On June 15, 2010, Plaintiff wrote to Lance Miklich regarding his religious
beliefs, which he responded to on June 17, 2010 stating that Plaintiff needed
to file an A.R. 800-1H, which was done immediately. This Defendant was
made aware of the problems, was in a position of authority to correct them
and failed to take the reasonable steps necessary to do so.
Docket No. 25 at 8, ¶ 9. Plaintiff further alleges that, “[o]n April 16, 2013 the Plaintiff
filed his appeal of [placement on restricted privileges status] and on April 23, 2013
Major Lance Miklich upheld the decision stating, in part, ‘discrepancies with your claims,
the dates and other related information.’” Id. at 10, ¶ 26. In regard to defendant
Stenzel, plaintiff alleges that:
On June 22, 2010 Plaintiff wrote Ted Stenzel asking for the faith group
Biblical Christian to be recognized by CDOC and CTCF. This defendant was
made aware of what was needed by Plaintiff to properly follow the tenets of
his faith and the problems he was facing, was in a position of authority to
correct the problems and accommodate the Plaintiff’s needs, but failed to
take the necessary steps to do so.
Docket No. 25 at 8-9, ¶ 10; see also id. at 9, ¶ 16. Additionally, plaintiff alleges that
defendant Stenzel was “assigned the task” of speaking with plaintiff “regarding a place
11

to worship, which was denied,” and, on another occasion, told plaintiff that he could not
help him with his citation for failure to work. Id. at 10-11, ¶¶ 18, 29.
Section 1983 “imposes liability for a defendant’s own actions” and thus “personal
participation in the specific constitutional violation complained of is essential.” Henry v.
Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). Section 1983 does not provide for
vicarious liability. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A plaintiff must show
that “each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.” Id.; see also Dodds v. Richardson, 614 F.3d 1185, 1198
(10th Cir. 2010) (a plaintiff must “prove not only that the official’s subordinates violated
the Constitution, but that the official by virtue of his own conduct and state of mind did
so as well.”). “[A] supervisor’s mere knowledge of his subordinate’s conduct” is not
sufficient to hold the supervisor liable under § 1983. Schneider v. City of Grand
Junction Police Dept., 717 F.3d 760, 767 (10th Cir. 2013); see also Porro v. Barnes,
624 F.3d 1322, 1328 (10th Cir. 2010) (“Simply put, there’s no special rule of liability for
supervisors. The test for them is the same as the test for everyone else.”); Woodward
v. City of Worland, 977 F.2d 1392, 1399 n.11 (10th Cir. 1992) (“merely asserting that
the defendant ‘should have known’ of unconstitutional behavior on behalf of his or her
subordinates without establishing an intentional, conscious, and deliberate act by the
defendant participating in, or knowingly acquiescing in, the unconstitutional behavior
fails to allege the requisite scienter for § 1983 liability”). The “denial of a grievance, by
itself without any connection to the violation of constitutional rights alleged by plaintiff,
does not establish personal participation under § 1983.” Stewart v. Beach, 701 F.3d

12

1322, 1328 (10th Cir. 2012) (internal citation omitted).
Plaintiff alleges no more than “mere knowledge” on the part of defendants
Miklich and Stenzel. See Docket No. 25 at 8, ¶¶ 9-10; Schneider, 717 F.3d at 767.
These defendants may not be held liable under § 1983 simply because they were
aware of plaintiff’s alleged grievances and did not remedy them. See id. As plaintiff
does not allege facts sufficient to establish that defendants Miklich and Stenzel violated
the Constitution “by virtue of [their] own conduct and state of mind,” they are entitled to
qualified immunity on his First Amendment claim. See Dodds, 614 F.3d at 1198.
B. RLUIPA
To prevail on a claim under RLUIPA, a plaintiff must demonstrate that he wishes
to engage in (1) a religious exercise (2) motivated by a sincerely held belief, and such
exercise (3) is subject to a substantial burden imposed by the government.
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010). RLUIPA “shall be
construed in favor of a broad protection of religious exercise, to the maximum extent
permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g).
See Abdulhaseeb, 600 F.3d at 1316-17 (prisoner presented a genuine issue of material
fact as to whether the denial of his requests for an Islamic diet burdened his religious
exercise); Rowe v. Davis, 373 F. Supp. 2d 822, 827 (N.D. Ind. 2005) (prisoner’s
pleading that a prison official prevented him from meeting with a religious leader of his
own faith was sufficient to overcome a Fed. R. Civ. P. 12(b)(6) motion to dismiss).
Plaintiff objects to the magistrate judge’s finding that plaintiff did not satisfy the
second element. Docket No. 42 at 2. In assessing whether plaintiff sufficiently alleges

13

that his religious exercise is motivated by a sincerely held belief, the Court “must not
judge the significance of the particular belief or practice in question. RLUIPA bars
inquiry into whether [the] belief or practice is ‘central’ to a prisoner’s religion. RLUIPA
does not, however, preclude inquiry into the sincerity of a prisoner’s professed
religiosity.” Abdulhasseb, 600 F.3d at 1314 n.6 (citing Lovelace v. Lee, 472 F.3d 174,
187 (4th Cir. 2006) (quotations and citations omitted)).
At this juncture the Court does not determine the validity of Biblical Christianity
as a religion or whether not changing linen on the Sabbath, obtaining a hymnal,
obtaining a place of worship, not relocating to a different cell on the Sabbath,
observance of a religious diet, and not reporting to work during feast days, see Docket
No. 35 at 9-10, are central tenets of plaintiff's religious practice. Instead, the Court
focuses on the allegations demonstrating the sincerity of plaintiff’s alleged beliefs.
As explained above, plaintiff’s allegations suggest that he has practiced Biblical
Christianity for several years and has repeatedly requested official recognition of the
religion, attempted to follow a special diet, and observed the Sabbath and other holy
days even when threatened or punished for doing so. These allegations are sufficient
to establish a sincerely held belief under RLUIPA. See Koger v. Bryan, 523 F.3d 789,
797 (7th Cir. 2008) (“the duration of time over which [plaintiff] sought to have his dietary
request accommodated, and the fact that he sought that accommodation primarily as
an [Ordo Templi Orientis] member, clearly demonstrates that his beliefs were sincerely
held. If [his] beliefs were not sincere, and if he wanted a non-meat diet for reasons
other than his religious beliefs, he could have attempted to have his affiliation changed
to one of the denominations whose members regularly received non-meat diets.”);
14

Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007) (plaintiff’s complaint was
sufficient to establish the sincerity of his religious beliefs where he alleged that he was a
“Christian” who believed that a “patient who professes a religion is entitled to be
informed if the counselor is aware of a religious avenue within the patient’s religion that
will meet the appropriate therapy protocol,” that he informed a Catholic patient that she
could find a bereavement support group through her church, and that he was
subsequently terminated from his graduate student field practicum for his “religious
speech”).
In their motion to dismiss, defendants do not advance any other basis for
dismissal of plaintiff’s RLUIPA claim. See Docket No. 28 at 7-8. Accordingly, there is
no basis for dismissing this claim.3
C. State Law Claim
Plaintiff alleges that defendants have violated Colo. Rev. Stat. § 17-42-101 by
“failing to accommodate Plaintiff’s religious beliefs and needs according to his faith
group, Biblical Christian. These Defendants have been made aware of the on-going
problems, were in positions of authority to correct them, but have failed to take the
reasonable steps to do so.” Docket No. 25 at 4, ¶ 43.
Colo. Rev. Stat. § 17-42-101 provides, in part, that:
(1) All persons who are confined to a correctional facility . . . shall have the
right to worship according to the dictates of their consciences, and such
3

Plaintiff fails to state an RLUIPA claim against defendants Miklich and Stenzel
because he does not allege that they acted with a state of mind beyond negligence.
See Lowery v. Edmondson, 528 F. App’x 789, 792 (10th Cir. 2013) (citing Lovelace,
472 F.3d at 194 (“simple negligence . . . does not suffice to meet the fault requirement
under section 3 of RLUIPA”)).
15

persons shall be afforded a reasonable opportunity to freely exercise their
religious beliefs without fear of retaliation or discrimination for the free
exercise thereof. The practice of religion by any particular sect may not be
curtailed or prohibited unless such practices threaten the reasonable security
interests of the correctional facility.
(2) Upon the request of any inmate, and to the extent practicable and
consistent with reasonable security considerations, religious facilities shall
be made available in a nondiscriminatory manner. . . .
(3) The [CDOC] shall permit access to objects of a religious nature where
possession of such objects would not unduly burden the reasonable security
interests of the correctional facility. Prison officials shall accord appropriate
respect for sacred objects.
The magistrate judge recommends that plaintiff’s state law claim be dismissed without
prejudice for lack of subject matter jurisdiction. In light of the Court’s rulings on
plaintiff’s federal claims, dismissal for lack of subject matter jurisdiction is not
appropriate. Defendants do not advance any other basis for dismissal of plaintiff’s state
law claim. See Docket No. 28 at 10. Accordingly, the Court will not dismiss this claim.4
II. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 35] is ADOPTED in part. It is further
ORDERED that the Motion to Dismiss [Docket No. 28] filed by defendants Lance
Miklich, Ted Stenzel, Darryl Proffit, Mary Toomey, Linda Worthen, Scott Lancaster,
4

Although “a court may dismiss sua sponte when it is patently obvious that the
plaintiff could not prevail on the facts alleged,” Hall, 935 F.2d at 1110, such dismissals
are “strong medicine, and should be dispensed sparingly.” Chute v. Walker, 281 F.3d
314, 319 (1st Cir. 2002). The Court concludes that sua sponte dismissal is not
appropriate in this instance. This ruling does not reflect any substantive conclusions
regarding the viability of plaintiff’s state law claim.
16

Tom Jordan, Valarie Craig, Ken Topliss, J. Stricklett, and Mary Ann Aldrich is
GRANTED in part and DENIED in part. Pursuant to the Eleventh Amendment,
defendants are immune from suit for money damages in their official capacities.
Plaintiff’s claim against all defendants under the Fourteenth Amendment to the United
States Constitution is dismissed without prejudice. Plaintiff’s claims against defendants
Lance Miklich and Ted Stenzel under the First Amendment and the Religious Land Use
and Institutionalized Persons Act are dismissed. Plaintiff’s claims against defendants
Darryl Proffit, Mary Toomey, Linda Worthen, Scott Lancaster, Tom Jordan, Valarie
Craig, Ken Topliss, J. Stricklett, and Mary Ann Aldrich under the First Amendment and
RLUIPA survive. Plaintiff’s claim against defendants Lance Miklich, Ted Stenzel, Darryl
Proffit, Mary Toomey, Linda Worthen, Scott Lancaster, Tom Jordan, Valarie Craig, Ken
Topliss, J. Stricklett, and Mary Ann Aldrich pursuant to Colo. Rev. Stat. § 17-42-101
survives.

DATED February 19, 2014.
BY THE COURT:

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

17