Mares v. Pueblo County Detention Center et al

Filing 54

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that the 34 MOTION to Dismiss filed by Fran Lepage be GRANTED. By Magistrate Judge Nina Y. Wang on 8/31/2017. (Attachments: unpublished case law) (nywlc1)

Nichols v. Federal Bureau of Prisons, Not Reported in F.Supp.2d (2010)
2010 WL 3219998

2010 WL 3219998
Only the Westlaw citation is currently available.
United States District Court, D. Colorado.
Terry L. NICHOLS, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, Harley
Lappin, Michael Nalley, Ron Wiley, Rod
Bauer, Dr. Steven Nafziger, M.D., Derrick
Jones, and Keith Powley, Defendants.
Civil Action No. 09–cv–00558–CMA–CBS.
|
Aug. 12, 2010.
Attorneys and Law Firms
Terry L. Nichols, Florence, CO, pro se.
Amy L. Padden, U.S. Attorney's Office, Denver, CO, for
Defendants.

ORDER ADOPTING IN PART AND OVERRULING
IN PART THE JUNE 22, 2010 RECOMMENDATION
OF A UNITED STATES MAGISTRATE JUDGE
AND ORDER DISMISSING ALL CLAIMS
CHRISTINE M. ARGUELLO, District Judge.
*1 This matter is before the Court on the June
22, 2010 Recommendation of Magistrate Judge Craig
B. Shaffer. (Doc. # 107.) Plaintiff objects to the
Magistrate Judge's Recommendation regarding his Eighth
Amendment claims (Doc. # 108) and the Court has
conducted the requisite de novo review of Plaintiff's
objections. See Summers v. State of Utah, 927 F.2d 1165,
1167 (10th Cir.1991). Plaintiff does not object to the
Magistrate Judge's conclusions with regard to his claims
under the First Amendment and the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb to bb–
4 and none of the Defendants filed objections to the
Recommendation. The Court may review portions of the
Recommendation that were not objected to under any
standard it deems appropriate. Id. (citing Thomas v. Arn,
474 U.S. 140, 150, 154, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985)). As discussed below, the Court affirms and adopts,
in part, and overrules, in part, the Magistrate Judge's
Recommendation. Plaintiff's claims are dismissed.

I. BACKGROUND AND PROCEDURAL HISTORY
The Court discusses only those facts that are necessary
to address the Recommendation and Plaintiff's Objections
to the Recommendation. A more detailed recitation of
the factual and procedural background is set out in the
Magistrate Judge's Recommendation. (Doc. # 107.)
Plaintiff, Terry Nichols, is incarcerated at the U.S.
Penitentiary Administrative Maximum (“ADX”) in
Florence, Colorado, serving a life sentence. On March
16, 2009, Plaintiff filed his initial complaint, which he
amended on two occasions. On August 27, 2009, Plaintiff
filed his Second Amended Complaint (“Complaint”)
alleging two claims pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and one
RFRA claim, against the Federal Bureau of Prisons
(“BOP”) and seven employees of the BOP. (Doc. #
67.) The seven individually named defendants are 1 : (1)
Harley Lappin, Director of the BOP; (2) Michael Nalley,
Regional Director of the BOP; (3) Ron Wiley, Warden of
the ADX; (4) Rod Bauer, Captain and ADX Healthcare
Administrator; (5) Dr. Stephen Nafziger, ADX Clinical
Services Director; (6) Derrick Jones, ADX Food Services
Administrator; and (7) Keith Powley, ADX Chaplain.
(Id. at 2–3.) Plaintiff is suing the BOP employees in their
individual and official capacities in Claims One and Two,
and in their official capacities in Claim Three. 2 (Id. at
3.) With respect to his claims against the BOP, Plaintiff
requests injunctive relief only. (Id. at 2.)
Claim One, alleging cruel and unusual punishment in
violation of Plaintiff's Eighth Amendment rights, is
brought against the BOP and Defendants Lappin, Nalley,
Wiley, Bauer, Nafziger, and Jones. (Doc. # 67 at 9–
18.) Claim Two, alleging a violation of Plaintiff's right
to free exercise of religion under the First Amendment,
is brought against the BOP and Defendants Lappin,
Nalley, Wiley, and Powley. (Doc. # 67 at 19–28.) Claim
Three, alleging religious discrimination in violation of
RFRA, is brought against the same defendants as in Claim
Two, incorporating, by reference, the factual allegations
of Claim Two. (Id. at 29.) All of the claims center on
the purported insufficiency of whole unrefined and living
foods high in insoluble fiber in Plaintiff's daily diet. (Doc.
# 67.) Specifically, Plaintiff is seeking a daily diet with

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100% whole grain foods, bran products, unpeeled and
uncooked fruits and vegetables, and legumes and nuts.
(Id. at 5.) He claims these foods are necessary for both
his medical needs and his religious beliefs. (Id. at 5–8.)
Plaintiff asserts that none of the current meal options are
suitable for his medical and religious requirements. 3 (Id.
at 20.)
*2 All eight Defendants moved to dismiss Plaintiff's
claims against them. (See Doc. # # 68, 72, 73, 74, 76,
& 83.) The Magistrate Judge recommended dismissal
of Plaintiff's Eighth Amendment claim (“Claim One”).
(Doc. # 107 at 40–41.) He also recommended dismissal of
Plaintiff's First Amendment claim (“Claim Two”) against
Defendants Lappin, Nalley, Wiley, and Powley. (Id.)
Finally, the Magistrate Judge recommended dismissal
of Plaintiff's RFRA claim (“Claim Three”) against
Defendants Lappin and Nalley. (Id.)
On July 12, 2010, Petitioner filed Objections to the
Recommendation. (Doc. # 108.) Specifically, Plaintiff
objected to the Magistrate Judge's findings on the Eighth
Amendment claim. (Id. at 2–7.) On July 26, 2010,
Defendants filed a Response to Petitioner's Objections.
(Doc. # 109.) Defendants argued that Petitioner's
Objections should be overruled and the Magistrate Judge's
Recommendation should be adopted. (Id. at 1.)

II. STANDARDS OF REVIEW
A. PRO SE PLAINTIFF
The Plaintiff is proceeding pro se; thus, the Court must
liberally construe his pleadings. Haines v. Kerner, 404
U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
However, the Court cannot act as an advocate for a
pro se litigant, who must comply with the fundamental
requirements of the Federal Rules of Civil Procedure. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

B. LACK OF PERSONAL JURISDICTION UNDER
FED. R. CIV. P. 12(b)(2)
“Jurisdiction to resolve cases on the merits requires ...
authority over the parties (personal jurisdiction), so that
the court's decision will bind them.” Gadlin v. Sybron
Int'l Corp., 222 F.3d 797, 799 (10th Cir.2000) (quoting
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577,
119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). “In determining

whether a federal court has personal jurisdiction over
a defendant, the court must determine (1) whether
the applicable statute potentially confers jurisdiction by
authorizing service of process on the defendant and (2)
whether the exercise of jurisdiction comports with due
process.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th
Cir.2006) (internal quotation marks and citation omitted).
A plaintiff bears the burden of establishing personal
jurisdiction over defendants. See Dudnikov v. Chalk &
Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069 (10th
Cir.2008) (citation omitted). “Where ... there has been no
evidentiary hearing, and the motion to dismiss for lack of
jurisdiction is decided on the basis of affidavits and other
written material, the plaintiff need only make a prima facie
showing that jurisdiction exists.” Wenz v. Memery Crystal,
55 F.3d 1503, 1505 (10th Cir.1995) (citations omitted).
The Tenth Circuit has “carefully and succinctly la[id] out
the well-established constitutional analysis for personal
jurisdiction.” Benton v. Cameco Corp., 375 F.3d 1070,
1075 (10th Cir.2004).
The Due Process Clause protects an individual's
liberty interest in not being subject to the binding
judgments of a forum with which he has established
no meaningful contacts, ties, or relations. Therefore,
a court may exercise personal jurisdiction over a
nonresident defendant only so long as there exist
minimum contacts between the defendant and the
forum state ...
*3 The minimum contacts standard may be met in two
ways. First, a court may, consistent with due process,
assert specific jurisdiction over a nonresident defendant
if the defendant has purposefully directed his activities
at residents of the forum, and the litigation results
from alleged injuries that arise out of or relate to
those activities. Where a court's exercise of jurisdiction
does not directly arise from a defendant's forum-related
activities, the court may nonetheless maintain general
personal jurisdiction over the defendant based on the
defendant's business contacts with the forum state.
OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d
1086, 1090–91 (10th Cir.1998) (internal quotation marks
and citations omitted).

C. FAILURE TO STATE A CLAIM UNDER FED. R.
CIV. P. 12(b)(6)

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The Court may dismiss a complaint for “failure to state
a claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “Dismissal is appropriate only if the complaint,
viewed in the light most favorable to the plaintiff, lacks
enough facts to state a claim to relief that is plausible
on its face.” United States ex rel. Connor v. Salina Reg'l
Health Ctr., Inc., 543 F.3d 1211, 1217 (10th Cir.2008)
(internal quotation marks and citation omitted). A claim
is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, ––––, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). Conclusory allegations alone
are not sufficient to state a valid claim. Id. at 1950;
see also Masters v. Gilmore, 663 F.Supp.2d 1027, 1037
(D.Colo.2009).

11, 2010) (unpublished) (finding no personal jurisdiction
where Defendant Lappin issued generalized orders to cut
costs).

III. ANALYSIS

B. CLAIM ONE: EIGHTH AMENDMENT CLAIM
In Claim One, Plaintiff alleges that the BOP and
Defendants Lappin, Nalley, Wiley, Bauer, Nafziger,
and Jones violated Plaintiff's Eighth Amendment rights.
The Magistrate Judge's Recommendation provides a
detailed breakdown of Plaintiff's allegations against each
Defendant. (Doc. # 107 at 11–12, 16, 19–20, 23–24,
26–27, 28, 32–33.) In sum, Plaintiff alleges that certain
Defendants (1) were aware of his grievances (id. at 11, 12);
(2) received and denied his cop-outs (id. at 11, 16, 19);
(3) cut the ADX budget and/or encouraged the budget to
be cut (id. at 11, 16); (4) as supervisors, failed to ensure
medical care and approved policies which allow “illegal
acts to exist” (id. at 11, 16); (5) were deliberately indifferent
in depriving Plaintiff of a high fiber diet (id. at 16, 19,
23); (6) denied his requests to see a physician and, instead,
placed him on a diet inconsistent with his needs (id. at 12,
23); and (7) created and/or allowed policies to exist which
deprived Plaintiff of medical care and the daily diet he
requests. (Id. at 16, 28, 32–33).

A. LACK OF PERSONAL JURISDICTION OVER
DEFENDANTS LAPPIN AND NALLEY
At the outset, the Court notes that the Magistrate Judge
correctly concludes that all claims against Defendants
Lappin and Nalley must be dismissed for lack of
personal jurisdiction. 4 Plaintiff alleges that Defendants
Lappin and Nalley (1) were aware of Plaintiff's medical
issues; (2) as supervisors, denied Plaintiff's grievances
and appeals; (3) directed, knew of, allowed, and/or
encouraged Defendant Wiley to cut the ADX budget;
and (4) approved Plaintiff's placement on the Common
Fare diet after denying his request to see a non-BOP
proctologist. (Doc. # 67 at 17–18, 26–28.)
“It is not reasonable to suggest that federal prison officials
may be hauled into court simply because they have
regional and national supervisory responsibilities over
facilities within a forum state.” Hill v. Pugh, 75 F. App'x
715, 719 (10th Cir.2003) (unpublished). As the Magistrate
Judge notes, receipt of grievances and letters is insufficient
to establish personal jurisdiction over the BOP Director.
See id.; see also Georgacarakos v. Wiley, No. 07–cv–
01712, 2008 WL 4216265, at *5 (D.Colo. Sept.12, 2008)
(unpublished) (finding that personal jurisdiction did not
arise simply because Defendant Lappin received notice of
unconstitutional conditions); see also Bradshaw v. Lappin,
No. 08–cv–02542, 2010 WL 908925, at *1 (D.Colo. March

*4 Plaintiff does not allege that Defendants Lappin or
Nalley conducted any activities in Colorado or had any
contact with him in Colorado. (See Doc. # 80 at 3 (“...
neither Defendant works nor lives nor physically entered
Colorado ...”)). To the extent that Plaintiff alleges that
Defendants Lappin or Nalley gave direction to other
Defendants, such allegations are speculative. (See Doc.
# 67 at 17–18, 26–28.) Therefore, allegations against
Defendants Lappin and Nalley for actions taken in
their supervisory roles, and their awareness and denial
of Plaintiff's grievances are not sufficient to establish
personal jurisdiction. Accordingly, the Magistrate Judge
properly recommended dismissal of all claims against
Defendants Lappin and Nalley pursuant to Fed.R.Civ.P.
12(b)(2).

The Magistrate Judge recommended dismissal of
Plaintiff's Eighth Amendment claim in its entirety for
failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6).
(Id. at 19, 23, 26, 32). He recommended that Claim One
be dismissed against the BOP and Defendant Nafziger for
failure to state an Eighth Amendment Claim, and that
it be dismissed as against Defendants Wiley, Jones, and

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Bauer for failure to state a claim due to lack of personal
5

participation. (Id.)
In his objection, Plaintiff asserts that his allegations
sufficiently state an Eighth Amendment claim. (Doc. #
108 at 2–3, 6–7.) Specifically, Plaintiff contends that he
may “bolster his claim” in responses and replies (id. at 4);
that he was on a physician-prescribed diet and conditions
of confinement prohibit further documentation of his
medical condition (id. at 3–6); and that Defendant
Nafziger acted with deliberate indifference when he
referred Plaintiff to the Chaplain regarding a medical
condition (id. at 4–5). For the following reasons the Court
adopts the Magistrate Judge's recommendation to dismiss
Plaintiff's Eighth Amendment claim.

1. Plaintiff's Contention That He May Clarify His
Allegations In Later Filings
*5 In support of his contention that he may clarify
his allegations in later filings, Plaintiff relies on Erickson
v. Pardus, 6 and asserts that the Magistrate Judge's
reliance on Shanahan v. City of Chicago, 7 for the
opposite conclusion, is misplaced. (Doc. # 107 at 20.) The
Court, however, disagrees with Plaintiff's interpretation of
Erickson.
The Plaintiff in Erickson brought an action under 42
U.S.C. § 1983 because he was removed from a hepatitis
C treatment. Erickson, 551 U.S. at 89–90. The district
and appellate courts dismissed Erickson's claims because
they found his allegations to be conclusory. The Supreme
Court disagreed and vacated the judgment, holding that
the allegations in the complaint were sufficient to state a
claim and satisfy Fed.R.Civ.P. 8(a)(2). See id. at 94. As an
aside, the Supreme Court recognized that the Petitioner
“bolstered his claim by making more specific allegations in
documents attached to the complaint and in later filings.”
Id . (emphasis added).
In the instant case, Plaintiff did not bolster his claims with
attachments to his complaint, but incorrectly argues he
may do so in later filings. According to the Tenth Circuit,
“[t]he court's function on a 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial,
but to assess whether the plaintiff's amended complaint
alone is legally sufficient to state a claim for which relief
can be granted.” Peterson v. Grisham, 594 F.3d 723, 727
(10th Cir.2010) (quoting Miller v. Glanz, 948 F.2d 1562,

1565 (10th Cir.1991)). For the reasons discussed below,
Plaintiff's Eighth Amendment claim should be dismissed
under Fed.R.Civ.P. 12(b)(6), for failure to state a claim. 8

2. Failure To State An Eighth Amendment Claim
The Eighth Amendment protects against the infliction of
“cruel and unusual punishments.” U.S. CONST. Amend.
VIII. “[P]rison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care and
must take reasonable measures to guarantee the safety
of the inmates.” Farmer v. Brennan, 511 U.S. 825,
832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal
quotation marks and citation omitted). Conditions of
confinement that unnecessarily and wantonly inflict pain,
may constitute cruel and unusual punishment under the
Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319,
106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); see Rhodes v.
Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59
(1981); see also Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976) (“[D]eliberate indifference
to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed in
the Eighth Amendment.”) (internal quotation marks and
citation omitted).
As the Magistrate Judge duly noted, an Eighth
Amendment claim involves “a two-pronged inquiry,
comprised of an objective component and a subjective
component.” Self v. Crum, 439 F.3d 1227, 1230 (10th
Cir.2006). First, under the objective component, the injury
must be sufficiently serious, showing a substantial risk of
serious harm. Farmer, 511 U.S. at 834; see also Self, 439
F.3d at 1230. Second, under the subjective component,
the defendant must have a “sufficiently culpable state of
mind.” Farmer, 511 U.S. at 834 (citation omitted); see also
Self, 439 F.3d at 1230–31.

a) Sufficiently Serious
*6 Plaintiff's complaint does not satisfy the Eighth
Amendment inquiry. First, the injury alleged by Plaintiff
is not sufficiently serious to warrant a claim under the
Eighth Amendment. Plaintiff alleges “serious chronic
medical issues” that require a high fiber diet. 9 “A medical
need is sufficiently serious if it is one that has been
diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.” Sealock

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v. Colorado, 218 F.3d 1205, 1209 (10th Cir.2000) (quoting
Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999)).
“[E]xamples of serious medical needs include a brain
tumor, delay in removing broken pins in a hip, premature
return to prison after surgery, a bleeding ulcer, and loss
of an ear.” Mandala v. Coughlin, 920 F.Supp. 342, 353
(E.D.N.Y.1996) (internal citations omitted). In Erickson,
the Supreme Court deemed an allegedly life-threatening
removal from a hepatitis C treatment to be sufficiently
serious. Erickson v. Pardus, 551 U.S. 89, 91, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007). A medically-required diet
has been considered sufficiently serious in the context
of a prisoner suffering from diabetes. Johnson v. Harris,
479 F.Supp. 333, 334 (S.D.N.Y.1979) (where the prisoner
suffered from diabetic gangrene requiring amputation of
a portion of his leg).
In the instant case, Plaintiff points to medical records from
a surgery that he underwent in 1984, which instructed him
to stay on a high fiber diet. (See Doc. # 108 at 5.) Postsurgery recommendations from 1984 do not sufficiently
represent a diagnosis “mandating treatment” that would
rise to the necessary level for Plaintiff to satisfy the
objective prong of an Eighth Amendment inquiry. Thus,
Plaintiff does not demonstrate a denial of treatment that
is sufficiently serious to maintain an Eighth Amendment
claim.

b) Deliberate Indifference
Plaintiff's allegations also fail because they do not
demonstrate deliberate indifference by Defendants, which
is necessary to meet the subjective prong of an Eighth
Amendment inquiry. A plaintiff must establish the
defendant “knew [plaintiff] faced a substantial risk of
harm and disregarded that risk, by failing to take
reasonable measures to abate it.” Hunt v. Uphoff, 199
F.3d 1220, 1224 (10th Cir.1999) (internal quotation marks
and citation omitted). “[T]he official must both be aware
of facts from which the inference could be drawn that
a substantial risk of harm exists, and he must draw the
inference.” Farmer, 511 U.S. at 837. “[A] complaint that
a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976).
In the instant case, Defendants' failure to provide the
treatment that Plaintiff seeks based on one reference in

post-surgery medical records that are more than 20 years
old does not rise to the level of deliberate indifference
required under an Eighth Amendment claim. See Perkins
v. Kansas Dept. of Corrs., 165 F.3d 803, 811 (10th
Cir.1999) (disagreement with medical personnel “does
not rise to a claim for deliberate indifference to serious
medical needs”); see also Olson v. Stotts, 9 F.3d 1475,
1477 (10th Cir.1993) (“[a] difference of opinion does
not support a claim of cruel and unusual punishment”).
Plaintiff asserts that Defendant Nafziger's “passing the
buck” to the Chaplain after being asked by Plaintiff to
be examined by a non-BOP proctologist rises to the level
of deliberate indifference. (Doc. # 108 at 2, 4.) However,
Plaintiff's allegations do not demonstrate that Defendants
knew Plaintiff faced a substantial risk of harm and failed
to take reasonable measures to avoid that harm. Plaintiff's
allegations simply do not show that Defendants were
deliberately indifferent to a substantial risk of harm.
Thus, Plaintiff does not satisfy the subjective prong of an
Eighth Amendment inquiry and his Eighth Amendment
claim 10 against the BOP and the individual Defendants is
dismissed in its entirety.

B. CLAIM TWO: FIRST AMENDMENT CLAIM
*7 Plaintiff next alleges that he was, and continues to
be, subjected to religious discrimination in violation of the
First Amendment. (Doc. # 67 at 19.) This claim is brought
against the BOP and Defendants Wiley, Lappin, Nalley,
and Powley. 11 Plaintiff does not object to the Magistrate
Judge's Recommendation regarding Claim Two, so the
Court reviews for clear error. See Summers v. State of
Utah, 927 F.2d 1165, 1167 (citing Thomas v. Arn, 474 U.S.
140, 150, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)).
In sum, Plaintiff alleges that (1) he was arbitrarily removed
from the Common Fare diet and was not offered a
comparable alternative to meet his religious needs; (2)
Defendants created policies condoning illegal acts; and
(3) Defendants ignored Plaintiff's grievances and failed to
properly supervise subordinates. (Doc. # 67 at 19–28.) The
Magistrate Judge recommended dismissal of the claims
against Defendants Wiley and Powley for lack of personal
participation; however, he recommended denial of the
BOP's motion to dismiss Claim Two. Finding no clear
error regarding the recommended dismissal of Defendant
Wiley, the Court affirms that recommendation. However,
the Court finds that Defendant Powley's and BOP's

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Motions to Dismiss Claim Two should be granted for
failure to state a claim.
At the outset, the Court notes that although the Supreme
Court has not affirmatively extended Bivens liability to
First Amendment claims, it has assumed the application
of Bivens to First Amendment claims. Ashcroft v. Iqbal,
556 U.S. 662, ––––, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868
(2009). Accordingly, the Court will address Plaintiff's First
Amendment claim assuming, without deciding, that it is
actionable under Bivens.

1. Defendant Wiley
The Magistrate Judge correctly recommended the
dismissal of Defendant Wiley from Claim Two for lack
of personal participation. (Doc. # 107.) Plaintiff's First
Amendment claim against Defendant Wiley focused on
denial of grievances, budget cuts, and failure to supervise
subordinates, which are insufficient to establish personal
participation. (Doc. # 107 at 16). See Gallagher v. Shelton,
587 F.3d 1063, 1069 (10th Cir.2009) (“Supervisory status
alone does not create [ ] liability.”) (citing Duffield
v. Jackson, 545 F.3d 1234, 1239 (10th Cir.2008)); see
also Whitington v. Ortiz, 307 F. App'x 179, 193 (10th
Cir.2009) (unpublished) (holding that denial of grievances
is insufficient to establish personal participation). Thus,
finding no clear error, the Court adopts the Magistrate
Judge's recommendation to dismiss Defendant Wiley from
Claim Two for lack of personal participation.

2. Defendant Powley
The Court disagrees with the recommended dismissal of
Defendant Powley for lack of personal participation, 12
but finds Defendant Powley should be dismissed from
Claim Two on other grounds. (See Doc. # 107 at 26–28.)
As previously noted, personal participation is an essential
allegation in a Bivens action. See Iqbal, 129 S.Ct. at 1949
(“Absent vicarious liability, each Government official, his
or her title notwithstanding, is only liable for his or her
own misconduct.”); see also Kite v. Kelley, 546 F.2d 334,
337–38 (10th Cir.1976) (a plaintiff suing federal officials
for constitutional violations under Bivens must show an
affirmative link between the defendant's conduct and the
alleged constitutional deprivation).
*8 Defendants argue that Plaintiff's claims against
Defendant Powley are conclusory and do not show
personal participation. (Doc. # 109 at 17–18.) The Court

is not persuaded with respect to Defendant Powley's
alleged participation. Plaintiff asserts specific allegations
regarding actions by Defendant Powley which allegedly
violate his First Amendment rights. Plaintiff alleges that
Defendant Powley, in his role as Chaplain, discriminated
against him and arbitrarily removed him from the
Common Fare diet without providing an alternative,
thereby placing a substantial burden on his religious
beliefs. (Doc. # 67 at 23–25.) Specifically, Plaintiff
alleges that Defendant Powley removed him from the
Common Fare diet following Plaintiff's refusal “to deny
his Christian faith and claim a Jewish or Muslim
faith.” (Doc. # 67 at 23.) Therefore, Plaintiff sufficiently
alleges personal participation by Defendant Powley in
Claim Two.
However, upon a closer review, while Plaintiff appears
to plead generally the elements in support of a First
Amendment claim, Plaintiff's allegations are largely
unsubstantiated. Moreover, certain allegations belie his
contention that his need to maintain a diet comprised of
“unrefined whole-grains and living foods with its natural
insoluble fiber intact” is religious-based and/or that meals
Defendants provide impose a “substantial burden” on
his ability to practice his Christianity. For example,
Plaintiff's allegations clearly state that he “adhered to a
daily diet high in insoluble fiber of whole foods” prior
to his arrest in April 1995, dating back as early as
1984, upon the recommendation of a surgeon. (Doc. #
67, ¶¶ 11, 12, n. 3). However, Plaintiff did not become
a Christian until June 1996, twelve years later. (Id., ¶
15). Therefore, in drawing all reasonable inferences from
this pro se plaintiff's Complaint, as the Court must, the
Court infers that Plaintiff's adoption of a whole foods
diet was for health reasons, rather than for religious
reasons, as Plaintiff now contends. 13 This is underscored
by Plaintiff's conflation of his purported religious rights
with his medical/health needs by alleging that “Chaplin
Powley's acts and omissions [in arbitrarily removing
Plaintiff from the common fare diet] directly contribute to
exacerbating Plaintiff's medical issues [e.g., symptoms of
constipation, hemorrhoids, bleeding, cramps, etc., which
Plaintiff experienced prior to his surgery in 1984] whereby
needlessly causing ongoing physical and spiritual pain
and suffering to this day.” (Id., ¶ 119). Upon the Court's
review, the reference to consequent “spiritual pain” is
vague and a mere afterthought.

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Even if Plaintiff later embraced religious reasons for
adopting a whole foods diet, Plaintiff has failed to
allege sufficiently that the BOP's meal service imposes
a “substantial burden” on his ability to practice
Christianity. Further, the instant facts are distinguishable
from other decisions in which courts found that prison
officials' failure to comply with the plaintiffs' dietary
requests imposed a substantial burden on their religious
practices.
*9 A “substantial burden” is one that (1) significantly
inhibits or constrains a plaintiff's religious conduct or
expression, (2) meaningfully curtails a plaintiff's ability
to express adherence to his faith, or (3) denies the
plaintiff reasonable opportunity to engage in fundamental
religious activities. Wares v. Simmons, 524 F.Supp.2d
1313, 1320, n. 9 (D.Kan.2007). 14 In sum, Plaintiff has
failed to allege sufficient facts to show that the diet he
currently eats lacks sufficient food items that he may
consume without violating his religion.
The facts alleged render the instant case analogous
to Barner v. Marberry, No. 07–98, 2008 WL 3891264
(W.D.Pa. Aug.18, 2008) (unpublished) (finding that the
prisoner plaintiff, who kept kosher and received prepackaged kosher meals that included prepared kosher
vegetables, failed to state a First Amendment claim in
connection with the prison's failure to provide him with
fresh kosher vegetables). In pertinent part, the district
court concluded, “Plaintiff's allegations are reduced to
no more than an expression of his preference for fresh
vegetables” because “Plaintiff does not complain that
the religious certified meals [ ] failed to comply with his
religious standards ... [A]bsent from Plaintiff's allegations
is any claim that his religion requires him to eat fresh
vegetables, and that the omission of fresh vegetables from
his kosher diet was, thus, a substantial burden on his
religious practice.” Barner, 2008 WL 3891264, at *7.
Similarly, in the instant case, Plaintiff appears to state
a preference for eating meals comprised entirely, or
almost entirely, of “unrefined whole-grains and living
foods”. (Doc. # 67, ¶ 17). However, Plaintiff does not
state that Christianity requires him to consume only unrefined whole grains and living foods, and he does not
contend that his meals are bereft of any such foods.
Rather, Plaintiff contends that his meals do not contain
enough of them and that the meals are small and lack
variety. (Id., ¶ 21; n.21). Plaintiff does not contend that

the meals leave him without anything to eat. Rather,
Plaintiff portends ominous consequences without any
substantiation. (See Doc. # 93, Plaintiff's Response to
Defendant Powley's Motion to Dismiss, at 5) (“For if
[Plaintiff] stops consuming those refined and dead foods
that defile his body he will lose weight, then BOP staff will
force feed him to prevent death by malnutrition.”)
The instant case is clearly distinguishable from the
situation presented in Abdulhaseeb v. Calbone, 600 F.3d
1301 (10th Cir.2008), in which the prisoner plaintiff,
who was Muslim, was denied halal food and provided
vegetarian or non-pork common fare food instead.
The Tenth Circuit reversed the district court's grant
of summary judgment in connection with the plaintiff's
religion-based claim. The court drew a reasonable
inference that the defendants' “failure to provide a halal
diet either prevents [Plaintiff's] religious exercise, or, at
the least, places substantial pressure on [Plaintiff] not to
engage in his religious exercise by presenting him with
a Hobson's choice—either he eats a non-halal diet in
violation of his held beliefs, or he does not eat.” 600 F.3d
at 1317.
*10 The instant dispute is also distinguishable from
Vashone–Caruso v. Zenon, No. 95–1578, 2005 WL
5957978 (D.Colo. July 25, 2005) (granting judgment in
favor of prisoner plaintiff on his religion-based claim).
The prisoner plaintiff, a practitioner of the Hanafi school
of Sunni Islam, complained that the defendants' failure
to provide him with halal red meat imposed a substantial
burden on his religious practices. In the plaintiff's view,
consuming halal red meat was a sign of gratitude towards
God's provision of such food. Upon consideration of
evidence that Muslim inmates were only provided halal
red meat twice a year, the court determined that the
defendants' food service policies imposed a substantial
burden on the plaintiff's religious practices. Id. at *12.
In the instant case, Plaintiff has not alleged that he faces
the Hobson choice present in Abdulhaseeb v. Calbone or
that Defendants have infrequently provided him with the
foods that are purportedly integral to Plaintiff's religious
practice, as was the case in Vashone–Caruso v. Zenon.
In any event, even if Plaintiff has stated a valid First
Amendment claim, the Court finds that this claim is
barred by the statute of limitations. 15 “A Bivens claim
is subject to the general personal injury statute in the

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state where the action arose.” Trujillo v. Simer, 934
F.Supp. 1217, 1226 (D.Colo.1996) (citing Wilson v.
Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d
254 (1985); Indus. Constructors v. United States Bureau
of Reclamation, 15 F.3d 963, 968 (10th Cir.1994)). Under
Colorado law, personal injury actions are subject to a twoyear statute of limitations. See COLO.REV.STAT. § 13–
80–102 (1995).
In the instant case, Defendant Powley removed Plaintiff
from the Common Fare diet on March 3, 2006. (Doc. # 67
at 23.) Plaintiff did not file his complaint in the instant case
until March 16, 2009. (Doc. # 2.) The action is thus barred
by the two-year statute of limitations. Even if the statute
of limitations was tolled while Plaintiff was filing required
administrative grievances with the BOP, the action is
still barred by the statute of limitations. According to
Plaintiff's Second Amended Complaint, his administrative
grievance, with respect to his religious needs, was denied
on June 6, 2006 (Doc. # 67 at 25), and his administrative
appeals were denied on August 31, 2006 and November
27, 2006 (id. at 26–27). After the denial of his grievance
and subsequent appeals, Plaintiff waited more than two
years before filing his complaint in this Court.
Plaintiff argues that his claim against Defendant Powley is
not time-barred because Plaintiff is suffering a continuing
violation of his First Amendment rights. (Doc. # 93 at
29.) The Court is not persuaded. “Courts have recognized
that in some circumstances, ongoing constitutional
deprivations can constitute continuing violations that toll
the statute of limitations or otherwise defeat a defense
of untimeliness.” Georgacarakos v. Wiley, No. 17–cv–
01712, 2008 WL 4216265, at *12 (D.Colo. Sept.12, 2008)
(unpublished) (citing Cowell v. Palmer Twp., 263 F.3d
286, 292 (3d Cir.2002)). However, the Tenth Circuit has
“never endorsed such a ‘continuing violation’ theory of ex
post facto liability in this context; to the contrary, [it has]
rejected analogous arguments in the past.” Wood v. Utah
Bd. of Pardons & Parole, No. 09–4225, 2010 WL 1434400,
at *3 n. 2 (10th Cir. April 12, 2010) (unpublished).
Additionally, if a single, discrete act has continuing
consequences, then the ‘continuing violation’ doctrine
does not apply. Georgacarakos, 2008 WL 4216265, at
*12 (citing Nat'l R .R. Passenger Corp. v. Morgan, 536
U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)).
Plaintiff's allegations against Defendant Powley focus on
Plaintiff's removal from the Common Fare diet, i.e., a
discrete event. (Doc. # 67 at 23–25.) The Court finds no

continuing violation of Plaintiff's rights with respect to
Defendant Powley. Thus, Claim Two against Defendant
Powley is barred by the statute of limitations.

3. Defendant BOP
*11 Finally, the Court disagrees with the Magistrate
Judge that Plaintiff sufficiently stated a First Amendment
claim with respect to the BOP. Prisoners retain First
Amendment rights, including the right of free exercise
of religion, however, those rights may be subject to
reasonable limitations. Kay v. Bemis, 500 F.3d 1214,
1218 (10th Cir.2007) (citing O'Lone v. Estate of Shabazz,
482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282
(1987)). “[I]n order to allege a constitutional violation
based on a free exercise claim, a prisoner-plaintiff must
survive a two-step inquiry.” Id. “First, the prisonerplaintiff must [ ] show that a prison regulation
‘substantially burdened ... sincerely-held religious beliefs.’
“ 16 Id. (quoting Boles v. Neet, 486 F.3d 1177, 1182
(10th Cir.2007)). “Second, prison officials-defendants
may ‘identif[y] the legitimate penological interests that
justif[ied] the impinging conduct.’ “ 17 Id. (quoting Boles,
486 F.3d at 1182).
As already discussed, the Court finds that Plaintiff's
allegations undermine his purported religious motivation
to adopt a whole foods diet. Further, Plaintiff fails
to substantively allege how Defendants' food service
policies substantially burdened the exercise of his religion.
Because Plaintiff has failed to satisfy the first part of the
inquiry, the Court need not consider whether legitimate
penological interests exist.
Therefore, the Court finds that Plaintiff has not stated
a plausible claim against the BOP under the First
Amendment.

C. CLAIM THREE: RELIGIOUS FREEDOM
RESTORATION ACT CLAIM
In Claim Three, Plaintiff alleges that the BOP and
Defendants Wiley, Lappin, Nalley, and Powley violated
the RFRA, 42 U.S.C. § 2000bb to bb–4. 18 (Doc. # 67
at 29.) In this claim, Plaintiff alleges the same conduct as
alleged in support of his First Amendment claim (Claim
Two). (Id.) The Magistrate Judge recommended that the
Court deny motions to dismiss by Defendants Wiley,
Powley, and the BOP. (Doc. # 107 at 41.) No objections

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were made to this portion of the Recommendation,
therefore, the Court reviews for clear error. See Summers
v. State of Utah, 927 F.2d 1165, 1167 (citing Thomas v.
Arn, 474 U.S. 140, 150, 154, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985)).
As the Magistrate Judge duly noted, to establish an
RFRA claim, a prisoner must show that the federal
government substantially burdened the prisoner's sincere
exercise of religion. Kikumura v. Hurley, 242 F.3d 950, 960
(10th Cir.2001). According to the RFRA, the government
may not substantially burden a person's practice of their
religion unless the restriction is furthering a compelling
government interest and is the least restrictive means of
doing so. 42 U.S.C. § 2000bb–1 (1993).
Because Plaintiff fails to substantively allege how
Defendants' food service policies substantially burdened
his practice of Christianity, the Court finds that Plaintiff's
RFRA claim also fails.

IV. CONCLUSION
For the reasons discussed above, the Court AFFIRMS
AND ADOPTS, IN PART, AND OVERRULES, IN
PART, the June 22, 2010 Recommendation of Magistrate
Judge Craig B. Shaffer. (Doc. # 107.) Accordingly, IT IS
ORDERED THAT:
*12 1. Defendants' various Motions to Dismiss are
GRANTED (Doc. # # 68, 72, 73, 74, 76, and 83); and
2. Plaintiffs
PREJUDICE.

claims

are

DISMISSED

WITH

All Citations
Not Reported in F.Supp.2d, 2010 WL 3219998

Footnotes

1
2
3
4
5
6
7
8
9
10

11
12
13

At the time Plaintiff filed his Complaint, all Defendants were employees of the BOP in the listed position of employment.
The Court need not address claims for damages against BOP employee defendants in their official capacities because
damages are barred by sovereign immunity, as conceded by Plaintiff. (Doc. # 80 at 3; Doc. # 81 at 3; Doc. # 86 at 3;
Doc. # 87 at 3; Doc. # 93 at 3 .) See Hatten v. White 275 F.3d 1208, 1210 (10th Cir.2002).
The five meal options are: Regular, Vegetarian, No Pork, Heart Healthy, and Common Fare. (Doc. # 67 at 20.)
Plaintiff does not object to this portion of the Magistrate Judge's Recommendation (see Doc. # 108), so the Court reviews
for clear error. See Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir.1991) (citing Thomas v. Arn, 474 U.S. 140,
150, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)).
Because all claims against Defendants Lappin and Nalley are dismissed for lack of personal jurisdiction, the Court will
not address Plaintiff's Eighth Amendment claim against them.
551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
82 F.3d 776 (7th Cir.1996).
Even if the Court considers additional information from Plaintiff's responses and replies, Plaintiff still has not sufficiently
stated an Eighth Amendment claim, thus, Claim One would still fail.
A description of Plaintiff's symptoms related to his “serious chronic medical issues” is detailed in the Complaint. (Doc.
# 67 at 5 n. 1.)
Because the Court finds that Plaintiff does not state an Eighth Amendment claim, it is unnecessary to go through a
personal participation analysis for Defendants Wiley, Jones, and Bauer. However, the Court agrees with the Magistrate
Judge that this claim against those Defendants would also be dismissed under 12(b)(6) for lack of personal participation.
(See Doc. # 107 at 18–19, 23.)
Because all claims against Defendants Lappin and Nalley are dismissed for lack of personal jurisdiction, the Court will
not address Plaintiff's First Amendment claims against them.
In his recommended dismissal of Claim Two against Defendant Powley, the Magistrate Judge appears to have premised
his recommendation on a conflation of the tests for First and Eighth Amendment claims. (Doc. # 107 at 27.) Plaintiff did
not allege an Eighth Amendment claim against Defendant Powley.
The Court is well aware of this Circuit's standard for affording religious dietary practices constitutional protection. The
Tenth Circuit has held that “a prisoner's belief in religious dietary practices is constitutionally protected if the belief is
‘genuine and sincere,’ even if such dietary practices are not doctrinally ‘required’ by the prisoner's religion.” Kay v. Bemis,

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14
15
16

17
18

500 F.3d 1214, 1220 (10th Cir.2007) (discussing LaFevers v. Saffle, 936 F.2d 1117, 1119 (10th Cir.1991) (concluding
that the “district court abused its discretion in dismissing [the] plaintiff's complaint to the extent it based its decision on
the fact that a vegetarian diet is not required by the Seventh Day Adventist Church.”). Further, “ ‘[t]he inquiry into the
sincerity of a free-exercise plaintiff's religious beliefs is almost exclusively a credibility assessment, ... and therefore the
issue of sincerity can rarely be determined on summary judgment,’ let alone a motion to dismiss.” Id. at 1219 (quoting
Snyder v. Murray City Corp., 124 F.3d 1349, 1352–53 (10th Cir.1997)). The determination of what is a “religious” belief or
practice does not “turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not
be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas
v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). A plaintiff
need not “plead facts sufficient for an objectively reasonable person to conclude that his belief his religious in nature....
Religion is by its nature subjective.... If [a plaintiff] could explain or prove objectively why his religion commanded the
belief in question, it might no longer be a religious belief, or at least not one rooted in faith.” Watts v. Florida Int'l Univ.,
495 F.3d 1289, 1296 (11th Cir.2007).
In the instant case, the Court is not questioning the truth of God's purported dietary requirements for Christians. However,
though mindful of the fact that “sincerity and genuineness” of one's religious beliefs is a credibility determination for the
trier of fact, the Court finds that Plaintiff's own allegations render his religious belief-based claims suspect. In viewing the
Complaint as a whole, the health-based motivation for his adoption of the at-issue diet is readily apparent. The religious/
spiritual motivation for this diet is far less apparent; the First Amendment argument appears to be an attempt to obtain
special treatment for which Plaintiff has not alleged sufficiently a medical necessity.
The Tenth Circuit uses the same “substantial burden” test to evaluate RFRA and First Amendment free exercise prisoner
claims. Id.
Defendant Powley asserts this affirmative defense in his motion to dismiss. (Doc. # 83 at 17–18.) Defendant Powley also
asserts a qualified immunity defense (id. at 13–16), but the Court need not address this because the claim is time-barred.
A “substantial burden” is one that (1) significantly inhibits or constrains a plaintiff's religious conduct or expression, (2)
meaningfully curtails a plaintiff's ability to express adherence to his faith, or (3) denies a plaintiff reasonable opportunity to
engage in fundamental religious activities. Wares v. Simmons, 524 F.Supp.2d 1313, 1320 n. 9 (D.Kan.2007). The Tenth
Circuit uses the same “substantial burden” test to evaluate RFRA and First Amendment free exercise prisoner claims. Id.
The burden then shifts back to the prisoner to show that the penological concern is irrational. Kay, 500 F.3d at 1219 n.
2 (quoting Salahuddin v. Goord, 467 F.3d 263, 275 (2d Cir.2006)).
Again, the Court notes that Defendants Lappin and Nalley are dismissed for lack of personal jurisdiction, therefore, RFRA
claims against them will not be addressed.

End of Document

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