Mares v. Pueblo County Detention Center et al

Filing 63

ORDER adopting 54 Report and Recommendations; granting 34 Motion to Dismiss; denying as moot 31 Motion for Order; denying as moot 32 Motion for Order; by Judge R. Brooke Jackson on 3/13/18. (jdyne, ) Modified on 3/14/2018 (jdyne, ) to correct docket text re: date of order.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson

Civil Action No. 16-cv-03082-RBJ-NYW
LEONARD MARES,
Plaintiff,
v.
FRAN LEPAGE,
Defendant.

ORDER

This matter is before the Court on defendant Fran LePage’s motion to dismiss, ECF No.
34, and Magistrate Judge Nina Y. Wang’s report and recommendation, ECF No. 54. Judge
Wang recommended that this Court grant Ms. LePage’s motion to dismiss, and Mr. Mares timely
objected to Judge Wang’s recommendation. ECF Nos. 54, 60. After reviewing the briefing and
relevant law, I find that the motion to dismiss must be GRANTED.
I. BACKGROUND
Magistrate Judge Wang provided a detailed summary of the procedural and factual
background of this case in her Recommendation. See ECF No. 54 at 1–14. To briefly highlight
the relevant facts, Mr. Mares is an inmate under the supervision of the Colorado Department of
Corrections (“CDOC”), and Ms. LePage is a Program Manager at the Pueblo County Detention
Center, a CDOC facility. ECF No. 15. Mr. Mares filed a complaint asserting, among other
claims and against additional defendants, that Ms. LePage wrongfully violated his rights under

the First Amendment and Religious Land Use and Institutionalized Persons Act (“RLUIPA”)
when she denied his request to change his religion to Judaism and thus receive kosher diet meals.
ECF No. 15. Mr. Mares later asserted that Ms. LePage also failed to provide him with a personal
copy of the Torah and failed to facilitate the visitation of a rabbi to the detention center. ECF
No. 39. Following the screening process undertaken pursuant to § 1915(e)(2), Judge Babcock of
this Court dismissed all of Mr. Mares’ claims except for the First Amendment and RLUIPA
claims and dismissed all defendants other than Ms. LePage. Judge Babcock also noted that the
Eleventh Amendment disallowed Ms. LePage from being liable in her official capacity for any
monetary damages. ECF No. 12 at 13. The case was then assigned to this Court and Magistrate
Judge Wang. Ms. LePage filed the pending Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. ECF No. 34.
Magistrate Judge Wang reviewed the motion to dismiss and recommended that it be granted,
ECF No. 54. Mr. Mares timely objected to her recommendation. ECF No. 60.
II. STANDARD OF REVIEW
A. Magistrate Judge Wang’s Recommendation.
When a magistrate judge makes a recommendation on a dispositive motion, the district
court “must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is sufficiently specific if it
“focus[es] the district court’s attention on the factual and legal issues that are truly in dispute.”
United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). In the absence of a
timely and specific objection, “the district court may review a magistrate’s report under any
standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).

Mr. Mares timely objected to Magistrate Judge Wang’s recommendation. ECF No. 60.
Specifically, Mr. Mares objects to Magistrate Judge Wang’s findings with regard to the First
Amendment claim. It does not appear that Mr. Mares objects to Magistrate Judge Wang’s
recommendations as to the RLUIPA claim. See id. However, in the interests of thoroughness
and finality, I will review both the First Amendment and the RLUIPA claim de novo.
B. Rule 12(b)(6) – Motion to Dismiss for Failure to State a Claim.
To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While the Court must accept the well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v.
Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual
allegations such that the right to relief is raised above the speculative level, he has met the
threshold pleading standard. See Twombly, 550 U.S. at 556. “The court’s function on a Rule
12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to
assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).
III. ANALYSIS
Mr. Mares seeks both damages and injunctive relief for the alleged First Amendment and
RLUIPA violations in this case. See ECF No. 10 at 18 (noting that he seeks damages in the
amount of $300,000 and injunctive relief from Ms. LePage’s alleged wrongdoing). However, I

find that Mr. Mares’ prayer for injunctive relief is moot because he is no longer housed at the
Pueblo County Detention Center (where the alleged wrongs occurred), he presents no evidence
that he will be housed there again, and he admits that Ms. LePage in fact permitted him to
change his religion and receive kosher meals prior to his transfer away from the Pueblo County
Detention Center. See ECF No. 39 at 4–5. Therefore, there is no “continuing injury” and this
Court lacks jurisdiction concerning his request for an injunction. See Jordan v. Sosa, 654 F.3d
1012, 1024 (10th Cir. 2011) (holding that a prisoner’s claim for injunctive relief is moot if he or
she is no longer subjected to the conditions complained of in the pleading).
In addition, Judge Babcock dismissed any claims for monetary relief against Ms. LePage
in her official capacity based on the Eleventh Amendment. ECF No. 12 at 13. Therefore, the
only form of relief that Mr. Mares can receive is monetary relief for claims against Ms. LePage
in her individual capacity. Because the Tenth Circuit has determined that “[t]here is no cause of
action under RLUIPA for individual-capacity claims,” Stewart v. Beach, 701 F.3d 1322, 1335
(10th Cir. 2012), I can quickly determine that Mr. Mares’ RLUIPA claim against Ms. LePage
fails and must be dismissed. As such, the only remaining claim is Mr. Mares’ First Amendment
claim against Ms. LePage in her individual-capacity.
In her motion to dismiss, Ms. LePage argues that Mr. Mares’ First Amendment claim
fails for two reasons. First, she argues that Mr. Mares’ pleadings about his religious beliefs are
vague, conclusory, and fail to meet the required pleading standards. ECF No. 34 at 5. Second,
she argues that Mr. Mares’ allegations about Ms. LePage’s conduct fall short of establishing the
personal participation necessary to maintain a claim under 42 U.S.C. § 1983. Id. at 6. I will
address each argument in turn.
A. Pleading Standard for a Free Exercise Claim.

In order to allege a violation of the First Amendment’s Free Exercise Clause, a prisonerplaintiff must show that a prison regulation “substantially burdened . . . sincerely-held religious
beliefs.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). Then, the prison officialdefendant may identify the legitimate penological interests that justified the impinging conduct.
Id. In his complaint and in his response to Ms. LePage’s motion to dismiss, 1 Mr. Mares alleges
that Ms. LePage “denied him his religion” when she: (1) followed a Pueblo County Detention
Center policy and refused his requests to formally change his religious designation to Judaism,
which in turn prevented him from receiving kosher meals; (2) failed to provide him with a Torah;
and (3) failed to find a rabbi to visit the detention center. ECF Nos. 15, 39.
Ms. LePage first argues that Mr. Mares failed to expressly claim that his Jewish beliefs
are “sincerely held.” ECF No. 34 at 5. I find that even though Mr. Mares did not use the magic
words “sincerely held,” there is enough factual support to rationally and plausibly conclude at
this stage that Mr. Mares is a sincere devotee to Judaism. See Kay, 500 F.3d at 1220 (holding
that although the prisoner-plaintiff did not expressly state that his religious beliefs were
“sincerely held,” after “[r]eviewing his complaint, and taking the factual allegations as true,
enough factual support exists to rationally and plausibly conclude that” the prisoner-plaintiff is a
sincere devotee of his faith). For example, in addition to pleading his desire to keep a kosher
diet, Mr. Mares also notes that he gave Ms. LePage the name and contact information of a rabbi
who Mr. Mares thought might be able to lead faith activities at the detention center. ECF No. 39
at 4. Mr. Mares asserts that he later asked his sister to get into contact with that rabbi to
determine whether Ms. LePage had contacted him. Id. Mr. Mares also notes his active
participation in the prayer services available to him at his new facility. ECF No. 60 at 4.
1

Although a court will ordinarily not permit a party to further amend his operative pleading in response to a
dispositive motion, In re Qwest Commn’s Int’l, Inc., 369 F. Supp. 2d 1178, 1203 (D. Colo. 2004), I will treat Mr.
Mares’ pleadings liberally, just as Judge Wang did, and I will consider these allegations.

Therefore, I find he sufficiently pleaded that he has a “sincerely held belief” despite not using
those precise words.
However, I agree with Ms. LePage that Mr. Mares failed to sufficiently plead that his
religious beliefs have been “substantially burdened,” and if so, how. ECF No. 34 at 5 (“Beyond
a conclusory assertion that Defendant LePage ‘denied’ him his religion there are no further
details upon which to base a Free Exercise Clause violation.”). 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. Nichols v. Fed.
Bureau of Prisons, No. 09-CV-00558-CMA-CBS, 2010 WL 3219998, at *9 (D. Colo. Aug. 12,
2010) (quoting Wares v. Simmons, 524 F.Supp.2d 1313, 1320 n. 9 (D. Kan. 2007)). While Mr.
Mares provided a list of items that he felt were wrongfully denied him in violation of his
religious beliefs, he failed to take the extra step of explaining why or how these denials
substantially burdened his ability to practice his Jewish faith.
For example, with regard to the kosher diet, he makes no argument that his beliefs
preclude him from eating a non-kosher diet and fails to otherwise show how eating a non-kosher
diet “significantly inhibits or constrains” his religious conduct or expression. The total extent of
his pleadings regarding the kosher diet are as follows: “Fran Lepage has denied Mr. Mares’
change of religion and his kosher diet,” “Fran Lepage denied Mr. Mares of his religious beliefs
and his kosher dietary meals,” and “Fran LePage has violated his rights of kosher dietary laws.”
ECF No. 10 at 15; ECF No. 39 at 3, 5. This is insufficient. See, e.g., Nichols at *9–10
(dismissing pro se prisoner’s Free Exercise claim for failure to plead a “substantial burden”
where prisoner failed to assert that his dietary requests were “integral” to his religious practice or

that he would face the “Hobson choice” to either not eat or violate his religion by eating nonconforming foods). Had Mr. Mares included factual allegations in his complaint regarding
whether his religious convictions required adherence to the kosher diet, this Court would have
taken those allegations as true and found his First Amendment claim sufficiently plead.
However, he did not, and without making any allegations as to whether and how the inability to
keep a kosher diet impacts his ability to worship, Mr. Mares has pled only a desire to maintain a
different diet.
The same is true of Mr. Mares’ allegations regarding the personal Torah and visiting
rabbi. He failed to assert any facts showing that the denial of these requests substantially
burdened his religion. ECF No. 39 at 3–4. He did not assert that these denials left him without
access to any religious materials, nor that he was precluded from contacting a rabbi himself to
seek spiritual guidance. Therefore, while Mr. Mares pled that the denial of his religious-based
requests was disappointing, he failed to allege whether and how these denials constituted a
substantial burden on his ability to exercise his Jewish faith. As such, he failed to assert a
cognizable First Amendment Free Exercise violation claim. 2

2

Because Mr. Mares failed to sufficiently plead a violation of his constitutional rights, I need not address Ms.
LePage’s other argument regarding personal involvement under Section 1983.

ORDER
For the reasons above, the Court accepts the recommendation of the magistrate judge,
ECF No. 54, GRANTS with prejudice defendant’s motion to dismiss, ECF No. 34. Two other
motions, ECF Nos. 31 and 32, are denied as moot.
DATED this 13th day of March, 2018.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge