BURKE v. LAPPIN et al

Filing 32

MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Colleen Kollar-Kotelly on 10/21/11.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Stephen G. Burke,
Plaintiff,
v.
Harley Lappin et al.,
Defendants.

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Civil Action No. 11-0717 (CKK)

MEMORANDUM OPINION
Plaintiff, a prisoner currently at the United States Penitentiary (“USP”) in Lewisburg,
Pennyslvania, sues former Bureau of Prisons (“BOP”) Director Harley Lappin and three other
BOP officials under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971), the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, and the
First, Fifth and Eighth Amendments to the Constitution. The complaint arises from the
conditions of plaintiff’s confinement at the Federal Correctional Institution (“FCI”) in Talladega,
Alabama, from which he was recently transferred. In addition to Lappin, plaintiff sues Joyce
Conley, former Assistant BOP Director for Correctional Programs, her apparent successor, D.
Scott Dodrill, and John Dignam, Chief of BOP’s Office of Internal Affairs. See Compl. ¶¶ 7, 14,
15. Plaintiff sues all of the defendants in their personal capacity for monetary damages and
Lappin and Dodrill also in their official capacity for declaratory and injunctive relief. Id. ¶ 8.
Defendants move to dismiss the complaint under Rules 12(b)(1) for lack of subject matter
jurisdiction, (b)(2) for lack of personal jurisdiction, (b)(3) for improper venue, (b)(5) for
insufficient service of process, and (b)(6) for failure to state a claim upon which relief can be
granted. See Mem. of P. & A. in Support of Defs.’ Mot. to Dismiss Pl.’s Compl. (“Defs.’
Mem.”) [Dkt. # 17] at 1. Upon consideration of the parties’ submissions, the Court finds that
(1) sovereign immunity bars the RFRA claim for damages, and (2) plaintiff has failed to state a

Bivens claim against the named defendants. In addition, the Court finds that plaintiff’s remaining
First Amendment claim and claims for injunctive and declaratory relief are moot in light of his
transfer from FCI Talledega, where the claims arose. Therefore, the Court will grant defendants’
motion to dismiss the damages claims under Rules 12(b)(1) and (b)(6), deny plaintiff’s pending
motions, and dismiss the case in its entirety.1
I. BACKGROUND
Plaintiff brings the following three causes of action: “Claim One: Violation of U.S.
Const., Amend. I (Religious Accommodation and Exercise thereof) by defendants Lappin,
Conley, Dodrill,” Compl. ¶ 9; “Claim Two: Violation of U.S. Const., Amend. V (Denial of Due
Process) by defendants Lappin and Conley,” id. ¶ 10; “Claim Three: Violation of U.S. Const.
VIII (Conditions of Confinement) by defendants Lappin, Conley, Dodrill and Dignam,” id. ¶ 11.
In Claim One, plaintiff states that he is a devout practitioner of Judaism who must
consume only kosher foods “as set forth by the Laws of Kashruth,” prepared in a manner that
avoids contact with non-kosher foods. Compl. ¶¶ 16-18. “[F]or many years,” BOP allegedly
“provided [J]ewish inmates with a nutritional amount of fresh vegetables, fruits, and generally
prepackaged hot or cold entrees from appropriate vendors.” Id. ¶ 19. However, in 2009, Lappin
and Conley allegedly “approved” a change to the kosher offerings that “eliminate[d] all fresh
vegetables, significantly reduce[d] fresh fruit, and convert[ed] entirely to prepackaged entrees,

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Defendants note that dismissal is appropriate for lack of personal jurisdiction because
plaintiff has not properly served the individual defendants with process. See Defs.’ Mem. at 8,
n.4. Because plaintiff is proceeding in forma pauperis and, thus, relying on the court officers to
perfect service, the Court would not dismiss the complaint under either Rule 12(b)(2) or 12(b)(5)
without first allowing plaintiff the opportunity to assist the court officers with curing the service
deficiencies. Therefore, to the extent that defendants have moved to dismiss on these grounds,
the motion is denied. In addition, defendants argue that as to the claims against defendants in
their personal capacity, dismissal is appropriate on the ground of improper venue because the
underlying events occurred in Alabama. See Defs.’ Mem. at 8-10. While they are correct on this
point, the Court need not address the venue question because the personal-capacity claims will be
dismissed on the merits.
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whole grain bread.”2 Id. ¶ 20. Allegedly, as a result of the change, plaintiff “‘was repeatedly
placed on [an] alternative diet program,” that served him “a salami (non-kosher) sandwich,
cheese sandwich, piece of fruit and container of milk.” Id. ¶ 22. Plaintiff further alleges that
“this meal was prepared in a manner allowing contact with non-kosher foods” and was delivered
to his cell in an unsanitary manner. Id. Because of the alleged “contamination” of his food,
plaintiff alleges that he went “for days and weeks without consuming any meals subsisting upon
water only . . . .” Id. ¶ 23.
According to plaintiff, Lappin, Conley and Dodrill “were made aware through letters,
[administrative] appeals, [and] inquiries from member[s] of congress regarding the practices at
[BOP] facilities [but] [they] took no action to abate the practices and to offer Plaintiff and others
similarly situated a kosher diet.” Id. ¶¶ 24-25.
In Claim Two, plaintiff alleges that in November 2008, Lappin “promulgated Program
Statement 5217.01 thus creating the SMU [Security Management Unit] Program.” Id. ¶ 28.
According to plaintiff “SMU inmates lack access to substantive educational or rehabilitative
programs. Televisions were installed, but were ordered left off by [] Lappin. Phone, visitation
and mail access [are] curtailed, censored, and highly monitored in SMU.” Id. ¶ 31. Following a
hearing on March 16, 2009, conducted over plaintiff’s objection, plaintiff was designated to the
SMU where he “was subjected to the aforementioned conditions.” Id. ¶ 36.
In Claim Three, plaintiff alleges that Lappin, Conley, and Dodrill were aware of the
conditions at SMU but “failed to take any action to investigate or correct those conditions.” Id.

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Plaintiff does not dispute that the applicable policy, BOP Program Statement 4700.05,
“has been unchanged since 2006, and was not changed in 2009 . . . .” Defs.’ Mem. at 17 & Ex.
A.
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¶ 39. In addition, plaintiff faults Dignam for failing to investigate alleged misconduct by the staff
of the Special Investigative Supervisor. Id. ¶¶ 40-41.
Plaintiff filed this action in April 2011 while confined at FCI Talledega. He seeks
declaratory and injunctive relief and monetary damages exceeding $2 million. Id. ¶¶ 43-46.
II. DISCUSSION
1. Subject Matter Jurisdiction
Under the doctrine of sovereign immunity, “the United States may not be sued without its
consent and . . . the existence of consent is a prerequisite for jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983). Such consent may not be implied, but must be
“unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992).
“RFRA does not waive the federal government’s sovereign immunity for damages.” Webman v.
Fed. Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006). The Court therefore will grant
defendants’ motion to dismiss the RFRA claim for damages under Rule 12(b)(1).
2. Failure to State a Claim
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), the Supreme Court “recognized for the first time an implied private action for damages
against federal officers alleged to have violated a citizen's constitutional rights.” Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001). Under Bivens, “it is damages or nothing.” Davis v.
Passman, 442 U.S. 228, 245 (1979) (citation and internal quotation marks omitted). To be held
liable under Bivens, the official must have participated personally in the alleged wrongdoing.
Liability cannot be based on a theory of vicarious liability or respondeat superior. See Ashcroft v.
Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1948 (2009) (“Because vicarious liability is inapplicable
to Bivens . . . suits, a plaintiff must plead that each Government-official defendant, through the

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official's own individual actions, has violated the Constitution.”); id. (finding that “respondent
correctly concedes that Government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.”); Corr. Servs. Corp., 534
U.S. at 72 ("If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may
bring a Bivens claim against the offending individual officer, subject to the defense of qualified
immunity . . . . [H]is only remedy lies against the individual[.]").
Since the filing of the complaint, plaintiff has clarified that contrary to defendants’
characterization of the RFRA claim, he is not attacking BOP’s national policy on kosher meals
because allegedly the policy was not followed at FCI Talledega. See Pl.’s Response to Defs.’
Opp’n to Pl.’s Mot. to Amend and for Discovery and Reply to Pl.’s Opp’n to Defs.’ Mot. to
Dismiss (“Pl.’s Reply”) [Dkt. # 28] at 1-4. Plaintiff also makes clear that he is “speak[ing] for
myself and what happen[ed] to me at SMU Talladega.” Id. at 3.
Plaintiff’s constitutional claims are vague, but to the extent that he is asserting
constitutional violations predicated on the paucity of the kosher food selections and the
conditions of his confinement at FCI Talladega, he has not alleged sufficient facts for which the
current and former high-level officials at BOP headquarters may be held liable. See Cameron v.
Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993) (concluding that a complaint naming Attorney
General and the BOP Director as defendants based on theory of respondeat superior, without
allegations specifying their involvement in the case, did not state Bivens claim against them);
Epps v. U.S. Att’y Gen., 575 F. Supp. 2d 232, 239 (D.D.C. 2008) (“A superior official cannot be
held liable under . . . Bivens for the constitutional torts of employees under him or her; the
common law theory of respondeat superior does not pertain to the federal government in this
context.”) (citing Marshall v. Reno, 915 F. Supp. 426, 429-30 (D.D.C. 1996)).

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Plaintiff asserts that defendants were “notified personally” of the alleged wrongdoing by
his exhaustion of “over 50 administrative remedies,” Response to Defs.’ Mot. to Dismiss [Dkt. #
23] at 4, and he finds it “totally unrealistic to believe that none of the defendants were not aware
of the abuses taking place for almost 2 years at SMU Talladega.” Id. But plaintiff’s speculative
argument – which would apply to all prisoners who have exhausted their administrative remedies
with BOP – provides no basis for imposing personal liability on any of the named defendants
who could not have possibly participated in the day-to-day decisions about plaintiff’s
confinement at FCI Talledega. See Thomas v. U.S. 779 F. Supp. 2d 154, 157-8 (D.D.C. 2011)
(dismissing personal-capacity claim against BOP’s Administrator of National Inmate Appeals
where issuance of adverse decisions in response to grievances lacked “requisite personal
involvement” in the alleged unconstitutional behavior). Furthermore, “a prison official's decision
on an inmate grievance with respect to an alleged constitutional violation does not itself render
him personally liable under Bivens.” Gonzalez v. Holder, 763 F. Supp. 2d 145, 150 (D.D.C.
2011) (citations omitted). Therefore, the Court will deny as futile plaintiff’s pending motion to
amend the complaint to add as a defendant Harrell Watts, Administrator of National Inmate
Appeals, and a claim based on Watts’ adjudication of plaintiff’s grievances. See Mot. to Amend
Compl. [Dkt. # 22] at 1-2.
To the extent that plaintiff’s claims for damages under the Fifth and Eighth amendments
may be considered as brought against the named defendants in their official capacity and, thus,
against the United States, they are foreclosed because the United States has not consented to be
sued for constitutional torts. See FDIC v. Meyer, 510 U.S. 471, 475-79 (1994); Dancy v. Dep’t
of Army, 897 F.Supp. 612, 614 (D.D.C. 1995) (citing cases).

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3. The Claims for Equitable Relief
Bivens does not “extend . . . to a claim sounding in the First Amendment,” Iqbal, 556
U.S. at 1948 (citing Bush v. Lucas, 462 U.S. 367 (1983)), and injunctive relief has long been
recognized as the proper means for preventing entities from acting unconstitutionally. Corr.
Servs. Corp., 534 U.S. at 74. Given plaintiff’s clarification that the complaint is specific to his
treatment at FCI Talladega, Pl.’s Reply at 1-4, his recent transfer from FCI Talledga renders his
claims for injunctive and declaratory relief moot. See Cameron, 983 F.2d at 257 (“But as the
district court found, Cameron's impending transfer to Leavenworth made the claim for an
injunction moot.”); Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011) (“[T]he availability of
[declaratory] relief presupposes the existence of a judicially remediable right.”) (citations and
internal quotation marks omitted; alteration in original). Therefore, the Court will dismiss the
complaint in its entirety.3
III. CONCLUSION
For the foregoing reasons, the Court will grant defendants’ motion to dismiss under Rules
12(b)(1) and (b)(6), and will deny plaintiff’s motion to amend the complaint. In addition, the
Court will deny as moot plaintiff’s motion for discovery to obtain the addresses of Conley,

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Any new claims arising from plaintiff’s conditions of confinement at USP Lewisburg
are properly brought in the United States District Court for the Middle District of Pennsylvania
after he has exhausted his administrative remedies. See Porter v. Nussle, 122 S.Ct. 983, 992
(2002) (holding that "the [Prison Litigation Reform Act's] exhaustion requirement applies to all
inmate suits about prison life. . . ."); Cameron, at 257 (“We think it is in the interest of justice to
transfer the claims against appellees Kindt and DuBois to a district where venue is proper.”)
(citation omitted); Thomas, 779 F. Supp. 2d at 158-59 (deferring transfer of equitable claims
arising from the alleged misconduct of officials at BOP facility in Terre Haute, Indiana, pending
plaintiff’s response to the Court’s determination that transfer was warranted); Poullard v. Fed.
Bureau of Prisons, 535 F. Supp. 2d 146, 149-50 (D.D.C. 2008) (transferring RFRA action to
location where alleged acts occurred and where plaintiff was confined).
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Dignam and Dodrill for purposes of serving them with process and his related motion for an
extension of time to supply said information. A separate Order accompanies this Memorandum
Opinion.

__________s/s__________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
DATE: October 21, 2011

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